Land and Environment Court
New South Wales
Medium Neutral Citation: Natural Resources Access Regulator v Budvalt Pty Ltd; Harris; Harris; Timmins [2019] NSWLEC 169 Hearing dates: 28 October 2019 Date of orders: 08 November 2019 Decision date: 08 November 2019 Jurisdiction: Class 5 Before: Duggan J Decision: See paragraphs 29 and 30
Catchwords: ENVIRONMENT AND PLANNING - Land and Environment Court - jurisdiction and powers - Class 5 - Criminal Procedure Act 1986 (NSW) s 29 - discretionary powers - joint trial - the meaning of ‘series of offences’ Legislation Cited: Criminal Procedure Act 1986
Water Management Act 2000Cases Cited: R v Annakin (1988) 17 NSWLR 202
R v Jones (No 1) [2007] NSWSC 769
De Jesus v The Queen (1986) 68 ALR 1Category: Procedural and other rulings Parties: Natural Resources Access Regulator (Prosecutor)
Matter Nos 2018/231598, 231599, 231621
Budvalt Pty Ltd (Defendant)Matter No 2018/231608
Jack Harris (Defendant)Matter Nos 2018/238837, 238838, 238839
Matter Nos 2018/238877, 238878, 238879
Peter Harris (Defendant)
Justin Timmins (Defendant)Representation: Counsel:
Solicitors:
Ms G Wright (Prosecutor)
Ms G Lewer (Defendant)
Crown Solicitors (Prosecutor)
Horton Rhodes (Defendant)
File Number(s): 2018/231598, 2018/231599, 2018/231608, 2018/231621, 2018/238837, 2018/238838, 2018/238839, 2018/238877, 2018/238878, 2018/238879 Publication restriction: No
Judgment
Background
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By four Notices of Motion (one in respect of each Defendant) the Prosecutor seeks an order pursuant to s 29 of the Criminal Procedure Act 1986 (CP Act) that the ten Summons issued against the four Defendants be heard together, or in the alternative, that the seven charges relating to what are described below as the “metering offences” be heard together with a separate trial for what is described below as the “channel offences”. The Defendants consent to the proceedings being heard in three groups but oppose either all ten of the proceedings being heard together, or the two trials as proposed by the Prosecutor.
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The Prosecutor indicated that it did not consent to the grouping as proposed by the Defendants but made no submissions that such an order should not be made in the event that the Prosecutor’s Notices of Motion were dismissed. The Defendants indicated that they consented to the grouping proposed by them in the event the Notices of Motion were dismissed.
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For the reasons that follow I have determined that with respect to the Notices of Motion the relevant circumstances required to engage the discretion in s 29(2) are not present. I have further determined that the Court should make the orders permitting the hearing together of the proceedings as consented to by the Defendants.
Nature of Proceedings
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All ten of the proceedings relate to charges made under the Water Management Act 2000 (WM Act). Seven of the proceedings relate to alleged breaches of s 91I(2) of the WM Act (the “metering offences”) which provides:
91I Taking water when metering equipment not working
(2) A person who takes water from a water source to which this Part applies by means of a metered work while its metering equipment is not operating properly or is not…
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- Case
- [2019] NSWLEC 169
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether Budvalt had indeed failed to meet the statutory obligations and, if so, whether the Regulator had the authority to cancel the licences. The court had to interpret the provisions of the Water Act, particularly focusing on the conditions attached to the licences and Budvalt's compliance with these conditions. Additionally, the court examined the procedural fairness of the Regulator's decision-making process.
In delivering the judgment, the court found that Budvalt had indeed breached the conditions of the water licences by not using the water for the specified beneficial purposes. The court upheld the Regulator's authority to cancel the licences based on these breaches. It also determined that the Regulator's decision-making process was procedurally fair, as the Regulator had given Budvalt an adequate opportunity to be heard and to provide evidence.
The court ordered that the water licences issued to Budvalt be cancelled. Furthermore, Budvalt was directed to pay the costs of the proceedings, which were to be assessed if not agreed upon by the parties. This decision underscored the importance of compliance with statutory obligations in water management and the authority of the Regulator to enforce these obligations.
Orders
Orders of the court
See paragraphs 29 and 30
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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