Natural Resources Access Regulator v Littore

[2024] NSWLEC 53

Land and Environment Court

New South Wales

Medium Neutral Citation:

Natural Resources Access Regulator v Littore [2024] NSWLEC 53

Hearing dates:

6, 7 and 15 and 18 December (further written submissions)

Date of orders:

17 May 2024

Decision date:

17 May 2024

Jurisdiction:

Class 5

Before:

Pepper J

Decision:

Notice of motion dismissed. See orders at [162].

Catchwords:

ENVIRONMENTAL OFFENCES: whether summonses statute barred because evidence of the alleged offence first came to the attention of any relevant authorised officer more than three years prior to the date upon which the proceedings were commenced – legal principles – who was a relevant authorised officer – whether evidence that came to the attention of a person prior to the person being appointed as an authorised officer is relevant – whether mere suspicion or belief sufficient – prosecutions commenced within time.

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 125, 127

National Parks and Wildlife Act 1974, s 190

Native Vegetation Act 2003, s 42

Protection of the Environment Operations Act 1997, ss 115, 216

Water Management Act 2000, ss 3, 91B, 60C, 85, 327, 336C, 338A, 339, 339B, 339C, 340, 340A, 364, 390, Ch 7

Cases Cited:

Aerotropolis Pty Ltd v Secretary, Department of Planning and Environment [2023] NSWCCA 195; (2023) 256 LGERA 69

Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569

Chief Executive of the Office of Environment and Heritage v Somerville [2019] NSWLEC 155

Chief Executive, Office of Environment and Heritage v Grant Wesley Turnbull (No 3) [2019] NSWLEC 165

Chief Executive, Office of Environment and Heritage v Wickman [2020] NSWLEC 23

Cumberland Council v Younan; Oueik; H& M Renovations Pty Ltd [2018] NSWLEC 145

M&S Investments (NSW) Pty Ltd v Affordable Demolitions and Excavations Pty Ltd [2023] NSWLEC 65

M&S Investments (NSW) Pty Ltd v Affordable Demolitions and Excavations Pty Ltd [2024] NSWCA 17

Rummery v Chief Executive, Office of Environment and Heritage [2014] NSWCCA 106; (2014) 201 LGERA 428

Somerville v Chief Executive of the Office of Environment and Heritage [2020] NSWCCA 93; (2020) 246 LGERA 141

The Queen v A2 [2019] HCA 35; (2019) 269 CLR 507

Waugh v Kippen [1986] HCA 12; (1986) 160 CLR 156

Category:

Principal judgment

Parties:

Natural Resources Access Regulator (Prosecutor)
David Alan Littore (Defendant)

Representation:

Counsel:
J Single SC with A Brown (Prosecutor)
K Averre (Defendant)

Solicitors:
NSW Crown Solicitor’s Office (Prosecutor)
Hunt & Hunt Lawyers (Defendant)

File Number(s):

2022/321668, 2022/321669, 2022/321670, 2022/321671

Publication restriction:

Nil

JUDGMENT

Littore Seeks to Strike Out Charges on the Basis That They are Statute Barred

1. By four summonses filed on 27 October 2022, the prosecutor, the Natural Resources Access Regulator (“NRAR”), alleges that the defendant, David Littore, committed four offences contrary to s 60C(1)(b) of the Water Management Act 2000 (“WMA”), in that, in the 2011/2012, 2012/2013, 2013/2014 and 2014/2015 water years (“the relevant period”) (which, for the purpose of the WMA, is the period between 1 July to 30 June the following year), Littore took water otherwise than in accordance with the water allocation for a water access licence either knowing, or with reasonable cause to believe, that the taking of the water was not in accordance with the water allocation.

2. Section 60C(1)(b) of the WMA is a Tier 1 offence in the following terms:

(1)   A person who takes water from a water source to which this Part applies otherwise than in accordance with the water allocation for the access licence by which the taking of water from that water source is authorised and —

…

(b)   who knows or has reasonable cause to believe that the taking of the water is not in accordance with the water allocation,

is guilty of an offence.

3. In the alternative, the summonses charge that Littore committed four offences contrary to s 60C(2) of the WMA, a Tier 2 offence, in that Littore took water otherwise than in accordance with the water allocation for a water access licence. That provision provides that:

(2)   A person who takes water from a water source to which this Part applies otherwise than in accordance with the water allocation for the access licence by which the taking of water from that water source is authorised is guilty of an offence.

4. By notice of motion filed 24 January 2023, Littore seeks an order that all charges be struck out on the basis that the proceedings are time barred pursuant to s 364(2) of the WMA, because the offending conduct for each offence first came to the attention of any relevant authorised officer before the date nominated in the summonses, namely, 31 October 2019.

5. For the reasons that follow, Littore's notice of motion must be dismissed because he has not established for the purposes of s 364(5) of the WMA that evidence of any act or omission constituting the alleged offences first came to the attention of any relevant authorised officer on a date prior to the nominated date.

Evidence of the Parties

6. In support of the submissions advanced by Littore that the NRAR had evidence of the existence of a machine that remitted unmetered water to be taken from as early as October 2010, and that in the period between 2010 and 2015 there was evidence of the taking of water other than in accordance with his water allocation, Littore relied upon the following evidence:

1. an affidavit of Jeffery Finch, Customer Field Officer at WaterNSW, affirmed 26 October 2022;

2. an affidavit of Donald Reid, a Compliance Officer with the NSW Office of Water (who retired on 21 October 2016), affirmed 24 October 2022;

3. an affidavit of Christopher Shaw, a Complex Program Delivery Specialist (previously a Field Services Manager) employed by WaterNSW, affirmed 24 October 2022;

4. an affidavit of Matthew Fricke, Farm Operations Manager (previously the Irrigation Manager) at Duxton Vineyards Pty Ltd (“Duxton”), affirmed 13 July 2022, together with photographs of the property and infrastructure at the property; and

5. other documentary evidence, including photographs of the property and email correspondence from Finch to other NRAR officers.

7. Both Reid, Finch and Shaw were cross-examined by the NRAR.

8. The NRAR read affidavits from:

1. Samuel Bowman, Chief Viticulturalist at Duxton until April 2021 (prior to this he was Duxton’s Consultant Viticulturist), affirmed 11 July 2022, together with exhibits;

2. David Bell, National Sales Manager at Water Dynamics Pty Ltd (“Water Dynamics”), affirmed 24 October 2022, together with exhibits; and

3. Scott Walker, Senior Investigator at the NRAR, sworn 26 October 2022 and 16 May 2023, together with exhibits.

9. In addition, it adduced:

1. the exhibits to the Finch and Shaw affidavits;

2. a record of interview (“ROI”) between the NRAR and Littore on 20 July 2011;

3. brief cover sheets from the NSW Office of Water in respect of an offence contrary to s 91B of the WMA on 1 October 2010 (the installation of additional pumps at the property) and s 336C of that Act, on 16 August 2011 (the contravention of a Stop Work Order);

4. a Penalty Infringement Notice (“PIN”) dated 8 August 2011 (in respect of the construction of two unauthorised additional pumps on the Darling River);

5. extracts from Reid’s compliance notebook;

6. a statement of facts; and

7. a sketch made by Littore, together with various photographs of pipes.

10. None of the NRAR’s witnesses were cross-examined by Littore.

The Alleged Taking of Water From the Darling River

11. The charges concern the alleged taking of water from the Darling River at an approximately 6,800 ha property known as “Arlington”, at Lot 27 of DP 756989 and Lots 5141 and 5142 of DP 720089, namely, 2367 Low Darling Rd, Wentworth, NSW 2648 (“the property”), during the 2011/2012, 2112/2013, 2013/2014 and 2014/2015 water years.

12. Littore was the occupier of the property and a co-director and shareholder of Littore Vineyards Pty Ltd, which managed the property. The property was used as a vineyard and the grape vines on the property were irrigated with water from the Darling River. Littore oversaw the irrigation at the property.

13. Between 1 July 2011 and 30 June 2015 inclusive, Littore and his brother were joint holders of Combined Approval 60CA581367 (“the approval”), which authorised the pumping of water from the Darling River to irrigate the property. The approval was linked to two water access licences (“WAL”) which were also jointly held by Littore and his brother, namely, WAL 9315 and WAL 9316.

14. WAL 9315 was a Regulated River (High Security) licence with a share component of 1,950 units as at 1 July 2011, 1,788 units as at 27 November 2014 and 1,950 units as at 1 September 2015.

15. WAL 9316 was a Regulated River (General Security) licence, with a share component of 1 unit as at 1 July 2011.

16. Between 1998 and 2007, three river pumps and two 450 mm main pipes (“Mainline 1” and “Mainline 2”) were installed to extract water from the Darling River for irrigation at the property.

17. By 14 October 2010 Littore had arranged for a further two river pumps to be installed (“pump 4” and “pump 5”), along with an additional subterranean 450 mm main pipe and associated valve (“Mainline 3”). It is alleged that the installation of Mainline 3 was not authorised.

18. Between at least 1 July 2011 and 30 June 2015 inclusive, there were two analogue flow meters installed on Mainline 1 and Mainline 2, which measured the volume of water taken from the Darling River by the river pumps. There was also an analogue meter attached to a backwash line which measured water that was returned to the Darling River, however, this was not used during the relevant charge periods.

19. During the latter half of 2015, two electromagnetic flow meters were installed on Mainline 1 and Mainline 2 to replace the analogue meters.

20. There was no meter situated on Mainline 3 to measure the volume of water that was extracted from the Darling River flowing through that mainline. As alleged, water transported by Mainline 3 was therefore capable of bypassing the meters that were used to record the water taken from the Darling River. When a gate valve on Mainline 3 was closed, any water taken was metered (by the analogue flow meters on Mainline 1 and Mainline 2 or, subsequently, by the electromagnetic flow meters that replaced them). However, when the gate valve was open, it allowed water to flow through Mainline 3 unmetered.

21. According to the NRAR, Littore used Mainline 3 to take unmetered water from the Darling River from time to time in the four water years between 1 July 2011 and 30 June 2015. It is further contended that the taking of unmetered water by the use of Mainline 3 in the relevant water years resulted in water being taken otherwise than in accordance with the water allocation prescribed by the relevant WALs. The use of Mainline 3 and the bypassing of the meters allowed this excess take to go undetected at the time of the alleged offending.

Early Suspicions and Investigations

22. Over the relevant period and following it, staff from WaterNSW attended the property on a number of occasions, made observations and undertook certain enforcement actions. It is this evidence that Littore relies upon in asserting that evidence of the alleged offences first came to the attention of any relevant authorised officer prior to 31 October 2019.

23. As the affidavit evidence of Finch discloses, Finch worked as a Customer Field Officer with WaterNSW and its predecessor agencies from 2005. Significantly, prior to 8 March 2018, he was not an appointed authorised officer for the purposes of the WMA.

24. Finch visited the property from time to time to read meters. It was his practice to read the two analogue meters on Mainline 1 and Mainline 2, and the analogue meter on the backwash line. In his affidavit he does not refer to having read any other meters at the property, nor are readings for any other meters recorded by him.

25. Finch visited the property on 14 October 2010 to read the meters. While he was there, he observed that a further two river pumps had been installed on the Darling River (namely, pumps 4 and 5) and what appeared to be the installation of a possible further mainline made of stainless steel and a large amount of excavation in the vicinity. He took photographs of the portion of the mainline and pipework connecting to the additional pumps that he saw during his inspection.

26. After his visit, Finch told Reid that he had identified “two additional pumps and pipework infrastructure that was installed” at the property. Reid had been an authorised officer for the purposes of the WMA since 10 February 2009.

27. Reid recalls that he received a direct alleged breach notification referral from Finch regarding the property on 1 October 2010. A NSW Office of Water investigation was commenced. Investigation documents indicate that the notification was in respect of the installation of two additional pumps at the pump site. Reid undertook a number of initial investigative steps.

28. Finch returned to the property approximately two to four weeks after his visit, on 14 October 2010. The stainless steel pipework was no longer visible and the area was covered with dirt. At this time, Finch spoke to Littore and asked where the meter for the new line was located. Littore told Finch that the pipe was capped off and that all water was metered through the two existing meters on Mainline 1 and Mainline 2. Reid recorded that on 22 November 2010 he was told by Finch that at a recent visit to the property, Finch had observed the additional pumps to be running but was unsure whether or not they were metered.

29. Reid attended the property on 16 February 2011 with Peter Winton, a Licensing Officer from the NSW Office of Water. Reid observed five river pumps with associated discharge lines on the bank of the Darling River, however, none were running. Because the infrastructure was buried, he could not ascertain how the metering arrangements worked.

30. Reid spoke with Littore and advised him that he only had approval for three river pumps under the approval at that time. Littore indicated that his consultant, Bill Nicol, had been instructed to apply for three extra pumps, but Reid’s review of the file for the approval showed that the application submitted had not sought any change to the number of pumps.

31. On 20 July 2011 Littore participated in a directed ROI as part of Reid’s compliance investigation into a potential breach of the WMA at the property. During the interview, Reid told Littore that the interview was “about the pump installation on [his] property at Arlington…whether…you’re authorised to have three pumps there and at the moment there’s five”. Reid did not ask questions about any additional mainline at the property. Reid did ask Littore how water was being metered and the diagram drawn by Littore during the interview refers to “full flow 750l/s through 2 meters then into 3 x 450mm mains”, suggesting that any additional main would be metered. There was also a depiction of what is labelled a “proposed delivery + meter” and a “future pump”. To the extent that there was discussion of metering arrangements, Reid appears to have been misled about the underground infrastructure at the property.

32. On 21 July 2011 Reid conducted a voluntary interview with Nicol. During the interview, Reid told Nicol that the NSW Office of Water had a report that Littore had installed two extra pumps and that the only issue that the NSW Office of Water was dealing with was the existence of five pumps when his approval was only for three pumps.

33. On 22 July 2011 Finch provided Reid with copies of the photographs that he had taken on 13 October 2010.

34. A document prepared by Reid during the course of his investigation in 2011 indicates that at that point in time, the alleged offence committed by Littore was constructing water supply works without approval contrary to s 91B(2) of the WMA, by reason of the two additional pumps installed at the pump site in September or October 2010. The same document identified as a mitigating factor that all water extracted by the works had been accounted for in the linked access licences. Further investigation material indicates that during the course of an interview, Littore had drawn a sketch plan depicting the layout of works at the pump site showing that all water pumped passed through the existing water meters.

35. Reid’s investigation concluded by issuing a PIN to Littore on 8 August 2011, for constructing a water supply work other than authorised. The description of the offences in the PIN was “two additional pumps on the Darling River at the pump site authorised by Approval 60CA581367”. The NSW Office of Water also issued a Stop Work Order under s 327 of the WMA on the same day, prohibiting use of the two additional pumps until their use was authorised in an approval.

36. Then on 16 August 2011, Reid received a direct alleged breach notification referral from Finch reporting that a pump subject to the Stop Work Order was operating on 16 August 2011. A further NSW Office of Water investigation was consequently initiated.

37. Reid attended the property on 16 August 2011 with Winton. Reid observed one of the two additional pumps operating. Reid had a conversation with one of Littore’s workers on the property, in which Reid explained the issue as “we have just looked at the pump that is running which is subject of a stop work order and is not supposed to be operating”.

38. On 18 August 2011 Littore participated in a voluntary recorded interview relating to a breach of the Stop Work Order. During the interview, Reid indicated to Littore that “we want to talk to you about a pump that was observed running at your property, Arlington…and that pump is currently subject to a stop work order”.

39. Investigation documents prepared by Reid indicate that the alleged offence committed by Littore was a contravention of certain directions contrary to s 336C of the WMA because one of the pumps subject to the Stop Work Order was operating. Further, the water that was being diverted by the pump was recorded by a flow meter that was installed at the pump site. Other investigation documents indicated that Finch advised Reid that one of the flow meters installed at the property was recording when he saw that the pump was running on 16 August 2011.

40. Reid’s investigation concluded by issuing a letter of warning to Littore on 8 September 2011. The letter indicated that the investigation had been undertaken in relation to the reported contravention of a Stop Work Order regarding the unlawful construction of water management works issued to Littore on 8 August 2011.

41. Shaw attended the property with Finch in mid-October 2012. At this time Shaw was not an authorised officer under the WMA. Shaw recalls a brief attendance at the pump site where Finch raised the suspicions which had been the subject of the alleged breach notification to Reid.

42. Shaw also recalls that either in 2012 or earlier, Finch had told him that:

1. he had seen an unauthorised third pipe being installed in the pump area which was not authorised by the approval;

2. he believed that this third pipeline bypassed the other two meters and did not have a meter installed; and

3. he suspected that Littore was using this unauthorised third pipe to take unmetered water unlawfully.

43. On 22 September 2015 Shaw and Finch attended the property after learning that State owned electromagnetic flow meters were being installed on the property and that associated excavations were occurring. Shaw recalls that he thought it would be a good opportunity to look for indicia of the unlawful pipework that Finch believed existed underground.

44. Shaw and Finch attended the property and both observed that pump 5 (an upstream pump) was running but that none of the mechanical flow meters (analogue flow meters) were working or displaying any flow. Furthermore, the meter reading on the flow meter that was supposed to be for the two additional pumps had not changed since Finch’s previous attendance at the property to read meters. This indicated to Shaw that water was being extracted but not recorded by the meter. According to Finch, this meant that either the meters were not working or that there could be another pipeline.

43. Shaw recorded Finch’s concerns in his diary that the pumping infrastructure had been bypassing the flow meter, and moreover, that Finch had previously submitted an alleged breach notification regarding this matter but, due to the buried site and confusion, there had been no action taken. Shaw stated that he recalls Reid investigating the matter, but not when the investigation had occurred.

44. On 23 September 2015 Shaw, Finch and other WaterNSW employees attended the property and were involved in, or observed, the excavation of soil and the use of water jet probes directed at trying to identify the location of any unlawful underground pipework. However, nothing was found.

45. On that day they did not have access to the pump shed because it was locked. As a consequence, Shaw and Finch returned to the property on 24 September 2015. They went into the pump shed and noticed a number of control valves for diverting water through the installed pipework and draining the mainline. Littore was asked by Shaw how the mainline was drained and he stated that “I just turn this valve and that valve…I just know which valves to turn.” Finch then asked Littore about the flow meter that did not appear to be working notwithstanding that the upstream pump was running. He stated that it was, and that “we are pressurising the pipeline” and that “the flow meter is working fine”. Shaw and Finch then left the property.

The Discovery of Mainline 3

48. On 19 February 2016 the property was sold by way of mortgagee sale to the current owner, Duxton. Duxton assumed working possession of the property in November 2015.

49. Duxton employees uncovered Mainline 3 in October 2019, during the course of arranging for an additional mainline to be installed at the property to address issues with a need for increased flow and pressure in the irrigation system. Duxton engaged irrigation and water management solution company Water Dynamics to assist. An additional mainline was to be installed at Water Dynamics’s recommendation. At the time, Duxton employees believed there to be only two mainlines on the property.

50. Duxton employee, Bowman, received a telephone call from Kane Brown – whom he knew to be a former employee of Littore – in which Brown told Bowman that he had heard Duxton was considering installing a third mainline at the property. Brown advised that there was “already a 3rd mainline installed at Arlington that you aren’t aware of”. In later conversations, Brown provided Bowman with details of the location of Mainline 3, including the associated valve.

51. Duxton employees undertook exploratory digging at the property to locate Mainline 3 and uncovered both the pipework and the gate valve.

52. Following the unearthing of Mainline 3, a Duxton employee contacted an employee of Water Dynamics, Bell, and told him about the pipework that they had discovered. In the following days, Bell attended the property in order to investigate and identified the pipework as a mainline.

53. On 29 October 2019 Bell and Duxton undertook testing on Mainline 3. That testing included the following procedure:

1. the river pumps were operated so that water was flowing through Mainline 1 and Mainline 2;

2. the gate valve on Mainline 3 was opened;

3. Mainline 1 and Mainline 2 were then shut down by closing their gate valves (with the result that the electromagnetic flow meters showed zero flow); and

4. water was observed to still be flowing to the re-lift pumps on the property (despite zero flow being recorded on the electromagnetic flow meters). The re-lift pumps did not independently draw water from the Darling River, rather they pumped water previously extracted by the river pumps.

54. Further testing was conducted which showed that either pump 4 or pump 5 could be operated to irrigate the front section of the vineyard at the property using water that was not metered by either of the electromagnetic flow meters installed on Mainline 1 and Mainline 2.

55. On 31 October 2019 a Duxton employee, Fricke, contacted Finch at WaterNSW. Finch was at this time an authorised officer under the WMA. Fricke advised Finch that he had found Mainline 3 at the property and that it was capable of bypassing the two electromagnetic flow meters on Mainline 1 and Mainline 2, thereby allowing unmetered water to be taken from the Darling River for irrigation at the property. This is the date nominated in each of the summonses for the purposes of s 364(5) of the WMA.

Water Taken in Excess of Allocation

56. As noted above, Littore held two WALs over the relevant period a high security licence (WAL 9315) and a general security licence (WAL 9316). Water account statements maintained by WaterNSW for each of these WALs for the water years 2009/2010 through to 2015/2016 were obtained. These water account statements reflect the water take and use on the property as recorded and read from the meters attached to Mainline 1, Mainline 2 and the unused backwash line, respectively. The water take and use reflected on the water account statements was substantially lower than the estimated irrigation requirements for the grape vines at the property calculated by Dr Wayne Meyer, an expert agronomist engaged on behalf of the NRAR on 1 June 2022.

57. Based on Dr Meyer’s evidence, the NRAR alleges that for each of the water years 2011/2012 through to 2014/2015 (which are the subject of charges), the volume of unmetered water taken by Littore greatly exceeded the combined balance remaining in the water allocation accounts for WAL 9315 and WAL 9316. If the estimated unmetered water that is alleged to have been taken had been recorded and processed as a transaction on the water allocation account, the water allocation accounts for those WALs would have been put into substantial deficit. Accordingly, it is alleged that Littore took water otherwise than in accordance with the water allocation for WAL 9315 and WAL 9316 in contravention of s 60C(1)(b), or alternatively s 60C(2), of the WMA.

Time Limits Under the WMA Within Which to Commence Proceedings

58. Section 364 of the WMA relevantly provides for time limits within which proceedings may be commenced, which in this instance is no later than three years after the date on which the evidence of the alleged offences first came to the attention of any relevant authorised officer (emphasis added):

(2)    Proceedings for an offence against this Act or the regulations may be commenced at any time within, but not later than, 3 years after the date on which the offence is alleged to have been committed.

(3)    Proceedings for an offence against this Act or the regulations may also be commenced at any time within, but not later than, 3 years after the date on which evidence of the alleged offence first came to the attention of any relevant authorised officer.

(4)    If subsection (3) is relied on for the purpose of commencing proceedings for an offence, the process by which the proceedings are commenced must contain particulars of the date on which evidence of the offence first came to the attention of any relevant authorised officer and need not contain particulars of the date on which the offence was committed.

(5)    The date on which evidence first came to the attention of any relevant authorised officer is the date specified in the process by which the proceedings are commenced, unless the contrary is established.

…

(8)    In this section, evidence of an offence means evidence of any act or omission constituting the offence.

59. The term “authorised officer” is defined in the Dictionary as, “in relation to a provision of this Act, means a person authorised by the Minister under section 390 to exercise the functions conferred on an authorised officer by that provision”.

60. As stated above, the proceedings were commenced by four summonses on 27 October 2022. The summonses specify the date on which evidence of the alleged offences first came to the attention of any relevant authorised officer as 31 October 2019, which is the day on which there was excavation on the property and Mainline 3 was uncovered and identified. It is on this day that the NRAR asserts that the alleged offences first came to the attention of the authorised officer, namely, Finch.

61. Ordinarily the NRAR would bear the onus of demonstrating beyond reasonable doubt that the proceedings were brought within time. However, because of the wording of s 364(5) of the WMA, this burden is transferred to Littore to establish, albeit on the balance of probabilities, that the proceedings were commenced out of time (Rummery v Chief Executive, Office of Environment and Heritage [2014] NSWCCA 106; (2014) 201 LGERA 428 at [84], Younan at [57] and Chief Executive of the Office of Environment and Heritage v Somerville [2019] NSWLEC 155 at [44]). Section 364(5) of the WMA therefore requires Littore to establish that the date on which evidence first came to the attention of any relevant officer was earlier than 31 October 2019.

62. According to Littore, there is abundant evidence that establishes that the relevant authorised officers had evidence of the alleged offending prior to this date, and therefore, that the charges should be struck out because they are time barred pursuant to s 364 of the WMA. In particular, the NRAR had evidence of the existence of a third mainline as early as October 2010, and that during the period between 2010 and 2019, there was evidence of the taking of water other than in accordance with the water allocation.

63. By contrast, the NRAR argues that the evidence of events prior to 31 October 2019 relied upon by Littore in support of his application, such as the investigations into other offences under the WMA, are not acts or omissions capable of indicating that an offence against s 60C of the WMA had been committed. The mere fact that some of this evidence is relied upon as part of the NRAR’s circumstantial case to prove the offences does not render it “evidence of any act or omission constituting the offence[s]” (s 364(8) of the WMA). The fact that an authorised officer may have held a suspicion or belief, even if reasonable, is not sufficient to constitute knowledge of the commission of the alleged offences.

The Proper Construction of the Time Limitation Provision

64. The phrase “evidence of the alleged offence” in s 364(3) of the WMA has received limited judicial attention, however, a number of decisions have examined the construction of relevantly similar statutory wording to that contained in the provision. Section 364 of the WMA uses similar language to that employed in, for example, s 216 of the Protection of the Environment Operations Act 1997 (“POEOA”) and s 190 of the National Parks and Wildlife Act 1974 (“NPWA”). Accordingly, authorities involving the interpretation of analogous provisions under those acts may be taken to inform the operation of s 364(3) of the WMA.

65. In Chief Executive, Office of Environment and Heritage v Wickman [2020] NSWLEC 23 the Court made the following observations (at [52]):

52 However, this does not mean that the assessment of the belief is subjective, as OEH claimed. In my opinion, whether or not there was evidence that “first came to the attention of an authorised officer” is wholly objectively determined. Were it otherwise, as Mr Wickman observed, it would be possible to circumvent the time limitation contained in s 42(4) of the NVA by claiming that, in the opinion of an authorised officer, the evidence did not come to their attention. I do not accept that the objective intention of Parliament in enacting the exception contained in s 42(4) of the NVA to the limitation period set out in s 42(3) of that Act was to permit time to be extended in this manner. The reasoning in Rummery (at [101]-[107]), Turnbull (No 3) (at [55]-[56]) and Younan (at [78])is consistent with this conclusion.

66. In Rummery, the Court of Appeal considered the meaning of s 42(4) of the Native Vegetation Act 2003 (“NVA”) (now repealed) which relevantly provided:

(4)   However, proceedings for any such offence may also be commenced within, but not later than, 2 years after the date on which evidence of the alleged offence first came to the attention of an authorised officer.

67. The Court of Appeal concluded that (at [104] to [107]):

104   Insofar as ground 5 of the grounds of appeal is put forward as a basis for setting aside the conviction because of an argument that "at least part of the charge may be statute barred", the material sought to be relied upon by Mr Rummery does not establish that the date specified in the summons (as to when evidence of the clearing first came to the attention of an authorised officer) was incorrect. That is an issue on which Mr Rummery bears the onus.

105   What is put forward by Mr Rummery is largely speculation, namely his belief that authorised officers in the OEH were able to have access to the electronic data in a usable form without the need for the rectification process described briefly by Mr Beaman and elaborated upon by Mr Fox and must have had access to that information in order to justify the cost of a charter flight over his property.

106   There is a logical explanation provided by Mr Roberts and Mr Beaman in their respective affidavits as to the course of events. That evidence does not support a conclusion that evidence of the unlawful clearing that was the subject of the charge (i.e., the clearing after 13 August 2008) had come to their attention before they were able to view (from the air) the state of the property on 12 November 2009 and compare that to the hard copy satellite image of what was there on 13 August 2008. (Mere possession of the hard copy satellite image that was taken up with them onto the flight would not have been sufficient to cause them to be aware of post 13 August 2008 clearing.)

107   Simply having the ability to access electronic data by way of a computer program (as Mr Rummery contends would have been open to the OEH officers on the basis that it is something to which he himself is readily able to have access through a particular government website) is not sufficient. What would need to be shown is that in some way evidence of unlawful clearing had actually come to an authorised officer's attention. That could only be done by someone accessing or viewing data from which the possibility of such clearing became apparent. If that were not the case, then the evident purpose of sub-s (5) (namely, to provide a time frame in which proceedings can be commenced where the actual date of clearing is not known) would be frustrated simply by the availability of access to search engines or tools such as those to which Mr Rummery referred in his submissions.

68. It was held in that case that the defendant had not established that the date specified in the summons as to when evidence of illegal clearing first came to the attention of the authorised officer was not the correct date.

69. The Court considered as a preliminary question the application of a limitation provision in Younan, where the defendants were charged with an offence of carrying out development without a construction certificate under s 125(1) of the Environmental Planning and Assessment Act 1979 (“EPAA”). At issue was the proper construction of s 127(5A) of that Act (set out at [54]):

54 At the time of the alleged offences and until it was transposed to s 9.57 on 1 March 2018, s 127 of the EPA Act relevantly provided:

127   Proceedings for offences

…

(5A)   However, proceedings for any such offence may also be commenced within, but not later than, 2 years after the date on which evidence of the alleged offence first came to the attention of an authorised officer within the meaning of Division 2C of Part 6.

(5B)   If subsection (5A) is relied on for the purpose of commencing proceedings for an offence, the information or application must contain particulars of the date on which evidence of the offence first came to the attention of an authorised officer and need not contain particulars of the date on which the offence was committed. The date on which evidence first came to the attention of an authorised officer is the date specified in the information or application, unless the contrary is established.

70. In construing the words “evidence of the alleged offence”, Robson J held that (at [73] to [79], especially at [78]):

73 In the present case, s 127(5A) provides an exception to the usual rule contained in s 127(5) that proceedings must be commenced within two years of the alleged offence. The exception depends upon evidence of the alleged offence coming to the attention of an authorised officer. In the present circumstances, the relevant inquiry for the Court is directed towards what is meant by “evidence of the alleged offence”.

74 I do not accept the submission of the prosecutor, noted at [58] above, that the word “the” imports consideration of the alleged offender. The provision speaks in terms of the alleged offence because it is referring to the specific offence in respect of which the ordinary rule that proceedings must be commenced within two years has been relaxed.

75   The fact that the charge must be brought against a specific person is clearly the case with all criminal offences but does not mean that evidence of the identity of the offender is part of the evidence of the alleged offence which must come to the attention of the prosecutor.

76 For that reason, contrary to the prosecutor’s submission noted at [60] above, I do not find the fact that s 125(1) includes reference to “a person” of great assistance. Any offence under the EPA Act is necessarily committed by a person (including any corporate “person”). As the defendants submit, s 81A does not refer to the particular person who contravened the Act as being relevant to the particular contravention. In those circumstances, s 125(1) merely recognises that for any breach of the EPA Act in respect of which charges are brought, a person must be responsible.

77   The ordinary meaning of the word “offence” in the present context is a crime. In law, it imports the notion of elements which must be made out beyond a reasonable doubt in order for an accused person to be found guilty. In neither sense does it import the notion of the particular offender, although obviously any criminal proceeding depends upon an identified defendant in respect of whom the elements making up the alleged offence are sought to be made out.

78 I find that “evidence of the alleged offence” on its face means evidence capable of indicating that an offence has been committed. In this circumstance, it would be insufficient merely to have evidence that construction works had commenced. An investigation officer would also need to have evidence brought to his or her attention capable of showing that a construction certificate had not been obtained. However once evidence of both of these elements is brought to his or her attention, and assuming the time limit provided s 127(5) has expired, the time limit provided by s 127(5A) is engaged. As I have explained, and in light of the prosecutor’s concession, this threshold has been satisfied in the present case.

79   Although not determinative given my finding that this is the effect of the ordinary language, I am comforted in this construction by the fact that this appears a sensible operation of the section in the context of the statute.

71. A similar interpretative task fell to the Court at first instance in Somerville with respect to s 190(1)(b) of the NPWA:

190   Time within which proceedings may be commenced

(1)   Proceedings for an offence under this Act or the regulations may be commenced—

…

(b)   within but not later than 2 years after the date on which evidence of the alleged offence first came to the attention of any authorised officer.

72. The controversy in Somerville concerned whether it was sufficient that the evidence referred to in s 190(1)(b) was evidence of any act or omission constituting an alleged offence under the NPWA with which the defendant was charged, or whether evidence was required of any act or omission constituting the offence as particularised in the summons. The Court adopted the latter position, albeit in a qualified manner (at [65] to [70]):

65 In my opinion, the submissions of Mr Somerville ought not be accepted. Significantly, it should be noted that in drafting ss 190(1)(b), 190(2), and again in s 190(4) of the NPWA, the deliberate use of the indefinite article “the” when referring to “the offence” and not “an” is a strong textual indicator that a nexus or connection between the acts or omissions and the offence as charged is required. In other words, acts or omission of any offence charged under the NPWA will not suffice for the purpose of s190(1)(b).

66 While this begs the question as to the strength of the necessary connection between the act or omission relied upon as evidence of the offence and the offence as charged, at a minimum the acts or omission must be acts or omissions referrable to the elements of the offence the subject of the summons. Section 190(4) makes it plain that the “evidence of an offence means” (and not “includes”) evidence by way of an act or omission of “the” possession offences and “the” harm offences, and not mere potential offending in general under the NPWA.

67   The use of the qualifier “any act or omission” is similarly a deliberate choice by Parliament. As Mr Somerville correctly submitted, it expands the range of acts or omissions evidence of which will enliven the time within which proceedings must be commenced under s 190(1)(b). But the word “any” must be read in the context of s 190(4) as a whole, which includes the words “constituting the offence”. It is not at large; it is tethered to the offence as charged.

68 It is unlikely that to be “evidence” for the purpose of s 190(4) of the NPWA, the acts or omissions must mirror exactly the particulars contained in the summons of, for example, the specific threatened species or protected fauna harmed or possessed. Nevertheless, the acts or omissions must form a part of the possession and harm offences under ss 101, 118B, and 118A of the NPWA. They must constitute, at least in part, an element of those offences. Visiting, foraging, and leaving markings in conservation areas is not an element of any of the offences charged.

69 In this regard, evidence of Mr Wade’s subjective belief or suspicion that any one of the numerous offences under the NPWA that he identified in the application for a search warrant had been committed by Mr Somerville is not determinative. This amounted to no more than evidence of potential offending in general under that Act and not evidence of “the offence” as charged in the summonses.

70   Furthermore, there is, as OEH correctly submitted, “a great distance between evidence that the accused might be committing and offence and evidence of an act constituting [a particular] offence”. The circumstantial evidence that first came to Mr Wade’s attention prior to 6 November 2016 rose no higher than evidence that Mr Somerville might be committing, or preparing to commit, an offence. There was nothing unlawful of itself about Mr Somerville being present in the Beni or Goonoo SCAs; being seen on public or private lands; looking into bushes or shrubs or climbing trees; or even being in a caravan on a hot day. Until the search warrant was executed there was nothing linking the coloured tape to Mr Somerville. And Mr Somerville was not observed using the tomahawk or ladder, nor was he seen removing, disturbing, collecting, possessing, or harming any animal, protected fauna, or part thereof. In my view, none of these acts were sufficient to be “any act or omission constituting” the offences contained in ss 101(1), 118A(1), or 118B(1) of the NPWA. At best, these acts amounted to evidence that Mr Somerville was looking or foraging for eggs to collect at some point in the future. But these acts did not constitute an offence under the NPWA, let alone the offences with which he was charged. Accordingly, as at 6 November 2016, there was no evidence of “any acts constituting the” possession and harm offences that had first come to the attention of an authorised officer.

73. On appeal (Somerville v Chief Executive of the Office of Environment and Heritage [2020] NSWCCA 93; (2020) 246 LGERA 141 (“Somerville CCA”)), the Court of Criminal Appeal emphasised that mere suspicion and belief on the part of an authorised officer is insufficient to enliven s 190(1)(b) of the NPWA (at [61]). It did not follow from the fact that the authorised officer had reasonable grounds to believe that the offences had been committed, that evidence of the offences had come to his attention for the purpose of s 190(1)(b) of that Act. As that Court observed (at [68] and [72]):

68 Section 190(1)(b) must be judged by reference to the contemporaneous knowledge of the prosecutor and not by hindsight. Evidence obtained by the prosecutor before evidence of the commission of the offence first came to his attention might be admissible as circumstantial evidence in an eventual hearing. However, it does not follow that such evidence constituted evidence of the commission of the offence for the purposes of s 190(1)(b) at the time it first came to the prosecutor’s attention. The present case affords a useful example. In any defended hearing, the prosecutor might want to adduce evidence obtained during the surveillance period against the appellant. The purpose of the tender of such evidence might be to show that the egg collection found in his caravan was his egg collection and had not been left there by a third party. However, in circumstances where the prosecutor had no evidence that the appellant had harmed or possessed a single egg, I am not satisfied that time had started to run until the search warrant was executed on 10 November 2016.

…

72 If s 190(1)(b) does not have any practical operation for the possession offences with which the appellant was charged in the present case, this is a consequence of the circumstance that the offence of possession is, as referred to above, neither an offence of commission or omission, but rather an offence which requires proof of a certain state, namely, the exercise of control over a particular thing. Thus the commission of the offence was simultaneous with the time at which the prosecutor found the eggs in the appellant’s possession. This circumstance does not provide a warrant for either reading down s 190(1)(b) or including a gloss on the words of the section.

74. Importantly, the Court of Criminal Appeal stated that it was not necessary to demonstrate evidence that each of the elements of the offence came to the attention of the prosecutor before the time limitation provision was enlivened (at [71], emphasis added):

71   I note for completeness that the primary judge appears to have interpreted what Robson J said in Younan as requiring that (in the context of s 127(5A) of the EPA Act), evidence of each of the elements of the offence come to the attention of the prosecutor before time starts to run. I do not consider this analysis to be correct. For example, the prosecutor would be obliged to establish beyond reasonable doubt that the appellant was the person in possession of the eggs in order to prove the charge. I note that Robson J held in Younan, that the prosecutor did not have to have evidence of the identity of the offender before time started to run under s 127(5A). The meaning of the expression “evidence of the alleged offence” in s 190(1)(b) is to be taken from s 190(4): namely, “evidence of an offence means evidence of any act or omission constituting the offence”.

75. In Chief Executive, Office of Environment and Heritage v Grant Wesley Turnbull (No 3) [2019] NSWLEC 165 Pain J held that diary notes relied upon by the defendant that related to different proceedings and clearing not the subject of the charge before her did not establish that the prosecutor became aware of the alleged unlawful clearing earlier than the date stipulated in the summons and the proceedings were therefore not statute barred for the purpose of ss 42(3) and (4) of the NVA (at [55]). Likewise, the fact that the prosecutor had access to electronic data held by a remote sensing specialist did not prove actual knowledge of the clearing by the authorised officer at an earlier point in time (at [56]).

76. More recently, in M&S Investments (NSW) Pty Ltd v Affordable Demolitions and Excavations Pty Ltd [2023] NSWLEC 65 the Court held that it would be sufficient for the purposes of s 216(2) of the POEOA if any relevant officer had knowledge that a person disposed of waste on the property in a manner that harms or is likely to harm the environment. It was not necessary to have knowledge of the presence of the requisite mental state to enliven the time limit under s 216(2) of that Act. This was a matter for evidence at the trial (at [107]). In that case, the defendants had been charged with, among other offences, an offence under s 115(1) of the POEOA:

115   Disposal of waste—harm to environment

(1)   Offence If a person wilfully or negligently disposes of waste in a manner that harms or is likely to harm the environment—

(a)   the person, and

(b)   if the person is not the owner of the waste, the owner,

are each guilty of an offence.

77. Section 216(2),(3) and (6) of the POEOA is in the following terms:

216   Time within which summary proceedings may be commenced

…

(2)   Proceedings for an offence under this Act or the regulations may also be commenced—

(a)   in the case of a prescribed offence—within but not later than 3 years after the date on which evidence of the alleged offence first came to the attention of any relevant authorised officer, or

(b)   in any other case—within but not later than 12 months after that date.

(3)   If subsection (2) is relied on for the purpose of commencing proceedings for an offence, the court attendance notice or application must contain particulars of the date on which evidence of the offence first came to the attention of any relevant authorised officer and need not contain particulars of the date on which the offence was committed. The date on which evidence first came to the attention of any relevant authorised officer is the date specified in the court attendance notice or application, unless the contrary is established.

…

(6)   In this section—

authorised officer means any person who is an authorised officer for the purposes of this Act, whether or not the person has the functions of an authorised officer in connection with the offence concerned.

evidence of an offence means evidence of any act or omission constituting the offence. …

78. An appeal against the finding that the charges were not statute barred was upheld on the basis that the trial judge did not properly address the question of whether the instrument of delegation appointed the officers upon whose evidence the prosecutor relied as authorised officers for the purposes of the POEOA (M&S Investments (NSW) Pty Ltd v Affordable Demolitions and Excavations Pty Ltd [2024] NSWCA 17). The reasoning at [107] was not, however, disturbed.

79. A survey of the above cases reveals the following propositions that assist in the proper interpretation of the phrase “evidence of the alleged offence” in s 364(3) of the WMA:

1. first, “evidence of the alleged offence” means, as prescribed by s 364(8) of the WMA, “evidence of any act or omission constituting the offence”. No gloss on these words is warranted. In other words, “evidence of the alleged offence” means any act or omission capable of indicating that the offence as charged has been committed (Younan and Somerville CCA);

2. second, what is required by way of knowledge will depend on the elements of the offence charged. An offence involving possession requires proof of a certain state of affairs, namely, the exercise of control over a particular thing and the identity of the offender (Somerville CCA), whereas an offence of carrying out development without consent where consent was required demands proof of knowledge of the development and the absence of any approval to carry it out (Younan);

3. third, having said this, evidence of all of the elements of the alleged offence is not required (Somerville CCA). Accordingly, in the example of an offence of carrying out development without consent, it is not necessary to know the identity of the person carrying out the unauthorised development (Younan);

4. fourth, mere speculation or belief, even if reasonable, will be insufficient to constitute the requisite degree of knowledge of the commission of the alleged offence (Rummery, Turnbull (No 3) and Somerville CCA);

5. fifth, the acts or omissions must be judged by reference to the contemporaneous knowledge of the prosecutor and not by recourse to hindsight (Somerville CCA);

6. sixth, the fact that the prosecutor merely has access to information that would constitute evidence of the alleged offence is not sufficient to establish the requisite knowledge (Rummery and Turnbull (No 3)); and

7. seventh, the question is one of fact (Somerville CCA), albeit informed by the statutory language of, and the statutory context within which, the time limitation exists.

Issues for Determination

80. In order to assess Littore’s argument that evidence of any act or omission constituting the alleged offences against s 60C of the WMA first came to the attention of any authorised officer on a date prior to 31 October 2019, it is necessary to consider:

1. the elements of the offences as charged;

2. who was a relevant authorised officer and at what time;

3. what evidence of any acts or omissions constituting the offences had come to the attention of various authorised officers for the purposes of the WMA; and

4. when did the evidence come to the attention of the authorised officer.

The Elements of the Offences as Charged

81. The elements of the offences pursuant to s 60C(1)(b) of the WMA are as follows:

1. a person takes water from a water source;

2. Ch 3 Pt 2 of the WMA applies to the water source;

3. an access licence authorises the taking of water from the water source;

4. the water is taken otherwise than in accordance with the water allocation for the access licence; and

5. the person knows or has reasonable cause to believe that the taking of water is not in accordance with the water allocation.

82. The first four elements comprise the elements of an offence contrary to s 60C(2) of the WMA (the Tier 2 offences charged in the alternative).

83. The term “water allocation” is defined in the Dictionary to the WMA to mean “the water to which the holder of an access licence is entitled from time to time under the licence, as recorded in the water allocation account for the licence”.

84. The term “water allocation account” for an access licence is defined in the Dictionary to the Act to mean “the account for the licence referred to in section 85(1)”, being an account that is maintained referable to a water access licence and that is credited or debited over time on account of available water determinations, usages and transfers.

85. Evidence of the first three elements of the offences cannot of themselves be evidence of an act or omission constituting the offence against s 60C because, absent the prohibited state of affairs in the fourth element, they would not constitute any offence at all. That is, they would not constitute “evidence capable of indicating that an offence has been committed” (Cumberland Council v Younan; Oueik; H & M Renovations Pty Ltd [2018] NSWLEC 145 at [78]).

86. In order to have evidence of any act or omission constituting the offence an authorised officer would need to have evidence that water was taken otherwise than in accordance with the water allocation. In practice, therefore, an authorised officer would need to have evidence that water was taken in excess of the water allocation.

87. An authorised officer would need to have evidence of what the water allocation was, and a means of quantifying the volume of water taken, in order to determine whether or not it was taken in excess of the water allocation (unless the account was already at nil balance or in deficit at the time of the taking, such that any water take would be otherwise than in accordance with the water allocation).

88. The taking of unmetered water does not amount to “taking water otherwise than in accordance with the water allocation” unless the unmetered water is taken in such a quantity as to exceed the balance available at a given point in time in the water allocation account. The taking of unmetered water may of course amount to a number of other offences under the WMA, but that is not what is at issue here. The specific offences charged involve taking water otherwise than in accordance with the water allocation.

Who Was an “Authorised Officer” for the Purposes of the WMA and When Was their Knowledge Relevantly Obtained?

89. Although Finch was nominated as the “authorised officer” in the summonses, because s 364(3) refers to “any relevant officer” it is necessary to have regard to the acts or omissions constituting evidence of the alleged offences that first came to the attention of Reid, Finch and Shaw.

90. The unchallenged affidavit evidence was to the effect that the following persons were authorised officers for the purposes of s 390 of the WMA:

1. Reid had been an authorised officer since 10 February 2009;

2. Finch had been an authorised officer since 8 March 2018; and

3. Shaw had been an authorised officer since 8 March 2018.

91. To reiterate, Littore did not cavil with the fact that Finch became an “authorised officer” for the purpose of the WMA on 8 March 2018. In particular, he accepted that there was no evidence that he was an authorised officer pursuant to s 390 of the WMA from 2010 to 2015.

92. While Littore appeared initially to accept that Shaw was formally appointed as an “authorised officer” under s 390 of the WMA on 8 March 2018, he also relied upon evidence that indicated that Shaw was an authorised officer as at 1 March 2006. This was based on:

1. the evidence of Shaw that he believed that he was an authorised officer under the WMA prior to 8 March 2018; and

2. a certification card issued under the State Water Corporation Act2004 that stated that the “the bearer who is authorised to carry out the functions set out in this certificate” and to “carry out the duties of an authorised officer under” (among other enactments) ss 296, 297, 298, 299, 300, 301, 324, 325, 327, 328, 330, 331, 334 and 339 of the WMA. The card stated that it “has been issued under the above legislation” and that “the authority is valid for a period of three years from the 1^st day of March 2006”.

93. But if, as at 1 March 2006, Shaw was an authorised officer for the purposes of the WMA, as the certification card seems to indicate, this does not assist Littore because no evidence was able to be produced to prove that that after 1 March 2009 (that is, three years from 1 March 2006) Shaw continued to be an authorised officer under the WMA or any other relevant enactment.

94. While Littore submitted that there was no evidence that Shaw’s appointment as an authorised officer in relation to the WMA did not remain constant until his re‑appointment on 8 March 2018, it remains the fact that Littore was not able to adduce any evidence of any continuing appointment from 2009 to 2018. The fact that Shaw was specifically appointed as an authorised officer on 8 March 2018 pursuant to s 390 of the WMA, is a strong indicator that even if he were an authorised officer for the purposes of the WMA in 2006, this ceased by March 2009. In short, I find that Littore has not proven that Shaw was an authorised officer for the purpose of s 364(3) of the WMA until 8 March 2018.

95. The next issue to emerge was whether there needs to be a direct temporal coincidence between when an individual becomes an authorised officer and when the evidence of the offence comes to their attention. This is a question of statutory construction. That is, does s 364(3) apply in a manner which means that as at the date upon which a person becomes an authorised officer time begins to run in relation to all evidence that had previously come to the attention of that person, or does the provision mandate that the person is an authorised officer when evidence of the alleged offence initially comes to their attention? Littore posited the former, whereas the NRAR advanced the latter proposition.

93. The matter only arises if the Court finds that evidence of the alleged offences first came to the attention of either Reid, Finch or Shaw prior to 31 October 2019, which, for the reasons later explained in the judgment, it does not. The issue is nevertheless determined for the sake of completeness.

94. The general principles to be applied when construing statute were summarised in the context of the interpretation of criminal legislation by the High Court in The Queen v A2 [2019] HCA 35; (2019) 269 CLR 507 (at [32]-[37], footnotes omitted):

32   The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision.

33   Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. “Mischief” is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve.

34   This is not to suggest that a very general purpose of a statute will necessarily provide much context for a particular provision or that the words of the provision should be lost sight of in the process of construction. These considerations were emphasised in the decisions of this Court upon which the Court of Criminal Appeal placed some weight.

35   The joint judgment in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue rejected an approach which paid no regard to the words of the provision and sought to apply the general purpose of the statute, to raise revenue, to derive a very different meaning from that which could be drawn from the terms of the provision. The general purpose said nothing meaningful about the provision, the text of which clearly enough conveyed its intended operation. Similarly, in Saeed v Minister for Immigration and Citizenship the court below was held to have failed to consider the actual terms of the section. A general purpose of the statute, to address shortcomings identified in an earlier decision of this Court, was not as useful as the intention revealed by the terms of the statute itself. In Baini v The Queen, it was necessary to reiterate that the question of whether there had been a “substantial miscarriage of justice” within the meaning of the relevant provision required consideration of the text of the provision, not resort to paraphrases of the statutory language in extrinsic materials, other cases and different legislation.

36   These cases serve to remind that the text of a statute is important, for it contains the words being construed, and that a very general purpose may not detract from the meaning of those words. As always with statutory construction, much depends upon the terms of the particular statute and what may be drawn from the context for and purpose of the provision.

37   None of these cases suggest a return to a literal approach to construction. They do not suggest that the text should not be read in context and by reference to the mischief to which the provision is directed. They do not deny the possibility, adverted to in CIC Insurance Ltd v Bankstown Football Club Ltd, that in a particular case, “if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance”. When a literal meaning of words in a statute does not conform to the evident purpose or policy of the particular provision, it is entirely appropriate for the courts to depart from the literal meaning. A construction which promotes the purpose of a statute is to be preferred.

98. These principles were recently applied in Aerotropolis Pty Ltd v Secretary, Department of Planning and Environment [2023] NSWCCA 195; (2023) 256 LGERA 69, a case concerning the construction of a provision enacting a time limit within which to commence criminal proceedings (at [67]-[68] per Price J):

67 The task of ascertaining the meaning of s 190(1)(b) of the NPW Act and s 13.4(2) of the BC Act begins “with a consideration of the text itself”, although “the meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy”; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 (Alcan) at [47] per Hayne, Heydon, Crennan and Kiefel JJ.

68   As there has been much debate in the competing arguments whether the words “within” and “after” are given work to do, the presumption against surplusage remains a valid guide to ascertaining their meaning; Taheri v Vitek (2014) 87 NSWLR 403; [2014] NSWCCA 209 per Leeming JA at [121]. Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [71] per McHugh, Gummow, Kirby and Hayne JJ.

99. In A2, Kiefel CJ and Keane J referred to the now outmoded cannon of statutory construction that legislation creating offences should be strictly construed, and stated that (at [52], footnotes omitted, citing Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569 at 576 and Waugh v Kippen [1986] HCA 12; (1986) 160 CLR 156 at 164):

52   A statutory offence provision is to be construed by reference to the ordinary rules of construction. The old rule, that statutes creating offences should be strictly construed, has lost much of its importance. It is nevertheless accepted that offence provisions may have serious consequences. This suggests the need for caution in accepting any “loose” construction of an offence provision. The language of a penal provision should not be unduly stretched or extended. Any real ambiguity as to meaning is to be resolved in favour of an accused. An ambiguity which calls for such resolution is, however, one which persists after the application of the ordinary rules of construction.

100. The remarks in A2 were endorsed by the Court of Criminal Appeal in Somerville CCA (at [46] per Adamson J, as her Honour then was):

46 By contrast, s 190(1)(b) is an exception to the rule in s 190(1)(a) that proceedings must be commenced within two years. The principle that, as an exception in favour of the prosecutor, it must be strictly construed (Morgans v Director of Public Prosecutions [1999] 2 Cr App R 99 at 113 (Kennedy LJ, Sullivan J agreeing)) must be doubted in light of what was said by Kiefel CJ and Keane J in The Queen v A2 [2019] HCA 35; (2019) 93 ALJR 1106 at [52]:

“A statutory offence provision is to be construed by reference to the ordinary rules of construction. The old rule, that statutes creating offences should be strictly construed, has lost much of its importance. It is nevertheless accepted that offence provisions may have serious consequences. This suggests the need for caution in accepting any ‘loose’ construction of an offence provision. The language of a penal provision should not be unduly stretched or extended. Any real ambiguity as to meaning is to be resolved in favour of an accused. An ambiguity which calls for such resolution is, however, one which persists after the application of the ordinary rules of construction.”

101. Limitation periods such as that promulgated in s 364(3) are not penal provisions, but are procedural in nature. This was the conclusion (albeit considered obiter dicta) of the Court of Criminal Appeal in Aerotropolis (at [84] per Price J):

84   Statutes “which impose a time limit on the commencement of proceedings to enforce right” have been traditionally regarded as “procedural”; Maxwell v Murphy (1957) 96 CLR 261; [1957] HCA 7, per Fullagar J at 286-287. There was no consideration in either Sommerville or Sommerville No 2 as to whether s 190 of the NPW Act was “penal” or “procedural”. In my view, the provisions which create the offences are “penal”. The offence provisions under which the applicant is charged are “penal” provisions. The limitation sections, namely s 190 of the NPW Act and s 13.4 of the BC Act are procedural.

102. As the authorities make plain, the task of ascertaining the meaning of s 364(3) of the WMA must commence with a consideration of its text. In my view, the text of the provision provides no clear guidance in resolving the inherent temporal ambiguity contained within it identified above.

103. Turning therefore to its context, including its purpose, it is plain that time limits within which to bring prosecutions (such as that enacted in s 364(2) of the WMA) are designed to encourage prosecuting authorities to bring criminal proceedings as quickly as possible in order to maintain confidence in the criminal justice system (Younan at [82]).

104. Nevertheless, the commission of some offences is difficult to detect. This is especially so with environmental offences, which are often committed on private property with no direct victim. The legislature has accordingly recognised that additional time may be required to commence proceedings in order to uphold the objects of the statute creating the offence, which are contained in s 3 of that Act and are worth repeating here:

3   Objects

The objects of this Act are to provide for the sustainable and integrated management of the water sources of the State for the benefit of both present and future generations and, in particular—

(a)    to apply the principles of ecologically sustainable development, and

(b)    to protect, enhance and restore water sources, their associated ecosystems, ecological processes and biological diversity and their water quality, and

(c)     to recognise and foster the significant social and economic benefits to the State that result from the sustainable and efficient use of water, including—

(i)    benefits to the environment, and

(ii)    benefits to urban communities, agriculture, fisheries, industry and recreation, and

(iii)    benefits to culture and heritage, and

(iv)    benefits to the Aboriginal people in relation to their spiritual, social, customary and economic use of land and water,

(d)    to recognise the role of the community, as a partner with government, in resolving issues relating to the management of water sources,

(e)    to provide for the orderly, efficient and equitable sharing of water from water sources,

(f)    to integrate the management of water sources with the management of other aspects of the environment, including the land, its soil, its native vegetation and its native fauna,

(g)    to encourage the sharing of responsibility for the sustainable and efficient use of water between the Government and water users,

(h)    to encourage best practice in the management and use of water.

105. Part of the context assisting in the proper construction of s 364(3) of the WMA includes the appointment of authorised officers under that Act. Officers can be authorised generally or in respect of specific provisions only:

390   Authorised officers and analysts

(1) The Minister may appoint authorised officers, either for the purposes of this Act generally or for the purposes of any specified provisions of this Act.

106. Authorised officers appointed under the WMA have clearly identified powers that are directed towards the investigation of potential offences and the collection of evidence. In this regard, s 339B of the WMA provides that:

339B   Powers of authorised officers to do things at premises

(1)    An authorised officer may, at any premises lawfully entered, do anything that in the opinion of the authorised officer is necessary to be done for the purposes of this Part, including (but not limited to) the things specified in subsection (2).

(2)    An authorised officer may do any or all of the following—

(a)    examine and inspect any works,

(b)    take and remove samples,

(c)    make such examinations, inquiries and tests as the authorised officer considers necessary,

(d)    take such photographs, films, audio, video and other recordings as the authorised officer considers necessary,

(e)    require records to be produced for inspection,

(f)    examine and inspect any records,

(g)    copy any records,

(h)    seize anything that the authorised officer has reasonable grounds for believing is connected with an offence against this Act or the regulations,

(i)    for the purposes of paragraph (h), direct the occupier of the premises where the thing is seized to retain it at those premises or at another place under the control of the occupier,

(j)    do any other thing the authorised officer is empowered to do under this Part.

(3)    The power to seize anything connected with an offence includes a power to seize—

(a)    a thing with respect to which the offence has been committed, and

(b)    a thing that will afford evidence of the commission of the offence, and

(c)    a thing that was used for the purpose of committing the offence.

(4)    In this section, a reference to an offence includes a reference to an offence that there are reasonable grounds for believing has been committed.

107. Further, in the course of exercising the functions of an authorised officer, the officer must, if requested to do so by a person affected by the exercise of any such function, produce to the person the officer’s evidence of authority (s 340(2) of the WMA).

108. In addition, it is an offence to, without lawful excuse, fail to comply with a requirement of an authorised officer or to threaten, hinder, obstruct or delay an authorised officer in the exercise of their powers (s 340A of the WMA).

109. What is apparent from the statutory schema is that the appointment of an “authorised officer” by the Minister confers specified powers upon that person to carry out activities inherently connected with the investigation and prosecution of breaches of the WMA. These are necessary because without them evidence cannot be gathered and a determination cannot be made about whether or not a breach of the Act has been committed and ought to be prosecuted. It is only authorised officers who have the ability to properly, comprehensively and efficiently investigate potential breaches of the provisions of the WMA. Such powers are not conferred upon persons who may be employed by the NRAR but who are not authorised officers. These persons cannot, for example, require the production of information or records (s 338A of the WMA), enter premises (s 339 of the WMA), or apply for a search warrant (s 339C of the WMA).

110. It would, in my opinion, be inconsistent with the content of Ch 7 of the WMA which deals with enforcement, if a person who suspected that an offence had been committed, but could not gather the evidence to confirm this belief or suspicion because they had not been appointed as an “authorised officer” under the WMA, was later fixed with this suspicion or belief upon appointment, even if years later, for the purposes of s 364(3) of the Act.

111. To construe s 364(3) of the WMA in this way does not render otiose the word “relevant” in “any relevant authorised officer” as Littore suggested. In any event, in this case there is no doubt that Shaw and Finch were relevant authorised officers. They were appointed pursuant to s 390 of the Act. They were also “relevant” in the sense that they were connected to the investigation into Littore’s conduct on the property.

112. To interpret s 364(2) in the manner proposed by Littore would have the effect of eroding the very purpose of the provision, namely, to extend the time within which prosecutions may be brought because, as recognised by the Parliament in enacting the section, some offences may not be immediately detectable. It cannot have been the intention of the legislature, for example, that time commences to run pursuant to s 364(3) of the WMA in respect of a person who is not an authorised officer forms a well-founded belief that an offence had been committed a decade before they were appointed as such. The meaning ascribed to s 364(3) of the WMA by Littore will only serve to engender uncertainty because the NRAR cannot know what and when evidence of the alleged offence referred to in s 364(3) of the WMA first came to the attention of an officer now authorised by s 390 of the Act.

113. In my view, the proper construction of s 364(3) of the WMA is one that eschews a result whereby on the date upon which an individual is appointed an authorised officer, everything that they knew prior to that date crystalises and adheres for the purpose of that provision. Rather, the temporal threshold must be that only upon an individual being appointed as an “authorised officer” does evidence that comes “to the attention of any relevant authorised officer” become relevant. Therefore:

1. it is not sufficient that the evidence is known by an employee or other officer;

2. rather, the evidence must come to the “attention” of any relevant authorised officer already appointed as such;

3. this is reinforced by the statutory language, viz, the evidence must come to the attention “of” any relevant authorised officer. That is, it must come to the attention of an individual while they are performing the role of an authorised officer;

4. the relevant authorised officer need not be specifically assigned or designated to investigate the alleged offence with which the defendant is ultimately charged. The deliberate use of the word “any” suggests that it is sufficient if the evidence comes to the attention of any person who is carrying out their duties as an “authorised officer”; and

5. the word “first” in s 364(3) of the WMA has work to do. This work must be harmonious with the remainder of the language of the provision. The statutory enquiry is directed when evidence first comes to the attention of a relevant authorised officer, and not when evidence first comes to the attention of a person who subsequently becomes an authorised officer.

114. In the result, having regard to the proper construction of s 364(3) of the WMA, Littore must demonstrate that evidence of the alleged offence came to the attention of either Reid from 10 February 2009 or Shaw and Finch from their appointment as authorised officers on 8 March 2018.

Evidence of Acts and Omissions Constituting the Offences Relied Upon by Littore

115. Littore relied upon the following evidence to submit that authorised officers of the NRAR had evidence of the existence of Mainline 3 as early as October 2010, and that in the period between 2010 and 2019 there was evidence of the taking of water other than in accordance with his water allocation.

116. In relation to Reid, Littore emphasised that:

1. he was previously a Compliance Officer with the NSW Office of Water who retired on 21 October 2016;

2. on 1 October 2010 he received a direct alleged breach notification referral from Finch related to the property;

3. on 12 October 2010 he conducted an Integrated Property Warehouse query for the property;

4. on 16 February 2011 he attended the property with Winton, an Office of Water Licensing officer. There he observed that five pumps were installed at the property on the banks of the Darling River. He took notes and observed that in relation to these pumps that, "1 and 2 discharge to a single 500 mm line that appeared to be new because it was shiny and did not show any age or faded paint compared to the other adjoining infrastructure" and there were "three flow meters on west side of shed";

1. while taking photographs at the property, he exchanged words with a male person:

Reid said:	“Hello, I’m Don Reid from NSW Office of Water.”
The male person said:	“I’m Jimmy.”
Reid said:	“We are looking at the pumps, there are five pumps here but the licence only authorises three.”
Jimmy said:	“I don’t know anything about that, I will take you out to see the boss”

6. he then spoke to Littore and had the following conversation:

Reid said:	“We are looking at a report that two extra pumps have been installed.”
Littore said:	“When we applied for the extra irrigation out here we applied for 3 extra pumps.”
Reid said:	“the approval only shows 3 x 250mm pumps.”

7. he showed Littore a copy of the approval and asked, "have you seen a copy of this before?" Littore said, "I don't know, I can't recall seeing it". He drew Littore's attention to page two of the Combined Approval, Schedule 1, water supply works:

Reid said:	“This shows three 250 mm pumps.”
Littore said:	“Bill Nicol was looking after the application for us and he was instructed to include three extra pumps. Do you have a copy of the application we made in 2007?”

8. a copy of the application was located and Reid turned to page five of that document and stated:

Reid said:	“It says here no change to pumps.”
Littore said:	“This was all done by Bill Nicol, I have sacked him and he no longer works for us. There were discussions about the extra pumps.”
Reid said:	“This matter is now an official compliance investigation and we need to follow a process. We would like to offer you a recorded record of interview.”
Littore said:	“I will have to speak to my solicitor, David Messenger”
Littore further said:	“Can you put something in writing through David Messenger and can I get a copy of that application and licence.”

9. on 20 July 2011 Littore was interviewed and a caution was given by Reid in these terms, “I am making inquiries in regard to potential breaches of the WM Act 2000 namely, an additional two pumps that were installed at ‘Arlington’ 2367 Low Darling Rd, Wentworth without approval. Do you understand that?”

10. on 21 July 2011 Nicol participated in a recorded interview;

11. on 8 August 2011 Reid issued a PIN to Littore for constructing an unauthorised water supply work;

12. on 16 August 2011 Reid received a direct alleged breach notification referral from the State Water Corporation. On the same day, he attended the property for a site inspection. At the property, he had a conversation with Graeme Hornby, a farm worker:

Reid said:	“…We have just looked at the pump that is running which is subject of a stop work order and is not supposed to be operating.”
Hornby said:	“Bloody hell, David told me not to start pumps 1, 2 and 3 because if we did we would cop a big fine.”
Hornby also said:	“There are notices everywhere at the pump, in the office saying not operate pump 1, 2 and 3.”
Reid said:	“What do you mean by pumps 1, 2 and 2.”
Hornby said:	“The original pumps, the new pumps are 4 and 5”
Reid said:	“When were the pumps started?”
Hornby said:	“It was started this morning…it has probably run for about 6 hours.”

13. and that on 18 August 2011 Littore participated in an ROI during which Reid informed Littore that he was "making inquiries in regard to potential breaches of the WM Act 2000 namely, a breach of a stop work order at 'Arlington' 2367 Low Darling Rd, Wentworth".

117. In relation to Finch, Littore relied upon the fact that Finch:

1. has been employed by WaterNSW and its predecessor agencies for approximately 28 years;

2. is currently employed as a Customer Field Officer at WaterNSW and has held this position since 2005;

3. visited the property on 14 October 2010 and observed “what appeared to be the installation of a further main line…There had also been a large amount of excavation to the area in the pump shed to accommodate the installation of the newly installed stainless-steel pipework mainline”;

4. recalls having a discussion with Reid in October 2010, saying to him, “I identified there were two additional pumps and pipework infrastructure that was installed”;

5. returned to the property approximately two to four weeks after his initial visit and observed that “the new main line that I observed and photographed on 14 October 2010, was not visible and…was covered over completely with dirt”;

6. recalls having a very brief conversation with Littore, saying “David, where is the meter located for the new line that was I installed." Littore’s response was "all water goes into the manifold/barrel and is metered through the two existing meters. The pipe is capped off”;

7. held suspicions that the metered water did not appear to be enough water for the crops and he raised his suspicions with Reid;

8. recalls inspecting the property on at least two separate occasions with Shaw;

9. recalls during a visit in September 2015, that one of the pumps was operating and that no meter was recording the water take. This suggested that either the meters were not working or that there could have been another pipeline;

10. used a water jetting tool to locate any other unknown underground pipework due to his ongoing suspicion of other possible pipework at the property, but none was located;

11. recalls, approximately two or three years after the property changed ownership to Duxton in 2015/2016, receiving a call from Fricke, in which he was informed that "we located an underground pipe from two pumps on the Darling River that were bypassing the two meters on the premises allowing unmetered water take to be used for irrigation purposes". He informed Shaw of this conversation; and

12. attended the property one or two days after the call with Fricke and observed "what appeared to be some underground pipework about 18 inches below the ground…The round metal plate had slots/holes in it. This suggested a tool could be inserted to tum the round piece of metal plate like a tap".

118. And finally, in respect of Shaw, Littore stated that the following was of relevance, namely, that:

1. Shaw was employed by WaterNSW as a Field Services Manager. He had held this position since February 2018;

2. prior to this, Shaw was a Field Services Team Leader, a position that he held from November 2008;

3. Shaw attended three inspections at the property where the pumps, metering and pumping infrastructure were located between 2012 and 2015;

4. the first time that Shaw was asked by Finch to attend the pump area of the property was around mid-October 2012;

5. Shaw and Finch did a brief visit to the pump area where Finch explained his suspicions about the pump infrastructure which had been the subject of his alleged breach report to Reid;

6. on 22 September 2015, having been informed that State owned meters were being installed at the property and that the ground would need to be partially excavated as a result, Shaw and Finch decided to attend the property;

7. Shaw recalled that Finch had told him years earlier, in 2012 or prior to this date, that:

1. Finch had seen an unauthorised third pipe being installed in the pump area which was not permitted under the approval;

2. Finch believed that this third pipeline bypassed the other two meters and did not have a meter installed; and

3. Finch suspected that Littore was using this unauthorised third pipe to take unmetered water unlawfully;

8. Shaw recalled "observing that the upstream pump was running, but the mechanical flow meter was indicating zero flow according to the red indicating flow arrow on the ELSTER/ABB mechanical flow meter. I recorded in my diary that the meter reading was 2032.86ML and that this reading was the same as that which Finch had recorded for this meter at the end of the 2014/2015 water year three months earlier. This indicated to me that water was being extracted but not recorded by the meter.";

9. Finch expressed concern to Shaw that the pumping infrastructure was bypassing the flow meter;

10. Shaw was aware that a Compliance Officer, namely, Reid, had investigated the matter but that he could not recall when this had occurred;

11. on 23 September 2015 Shaw attended the property along with Compliance Field Officers Daniel Bailey, Dale Cox and Jack Chubb from the NSW Metering Project, together with Finch. Shaw did not find anything to substantiate Finch's suspicion about an unlawful pipe. He did not have access to the pump shed because it was locked and only Littore had the key;

12. on 24 September 2015 Shaw attended the property with Finch. Littore arrived shortly thereafter and opened the pump shed. Upon entering the pump shed, Shaw observed that there were a number of control valves for diverting water through installed pipe work and for draining the main line. When he asked Littore how the main line was drained, Littore spoke quickly and gave him a complicated answer that was difficult to follow; and

13. Shaw and Finch then had a conversation with Littore:

Finch said:	“David, we arrived on site yesterday afternoon at around 5.30pm and we noticed that the flow meters wasn’t working but the upstream pump was running.”
Littore said:	“We have been through all this with you before Jeff. It’s because we are pressuring the pipeline and that is why the flow meter isn’t operating.”
Finch said:	“in my experience with the ELSTER/ABB Mechanical flow meter with the red arrow to indicate flow, when this happens the flow rate is far more erratic and these meters still show that there is a flow.”
Littore said:	“The flow meter is working fine”

119. Accordingly, Littore argued that Reid, Finch and Shaw were aware of evidence of the commission of the alleged offences, rather than merely acts that would constitute preparatory conduct towards the commission of the offences, prior to October 2019. The contemporaneous knowledge of the officers before Mainline 3 was unearthed was that underground pipework existed and that water had been taken that was not being recorded. This was sufficient to engage s 364(3) of the WMA.

120. Littore contended that the evidence demonstrated that:

1. as early as 14 October 2010 Finch had observed an installation of a new mainline;

2. by at least 2012 Finch had seen an unauthorised third pipe being installed in the pump area and that he suspected that Littore was using this unauthorised third pipe to take unmetered water unlawfully;

3. there was an alleged breach report sent by Finch to Reid;

4. there were previous investigations undertaken the by NRAR in 2012 in relation the suspected third mainline;

5. there were at least three inspections of the property between October 2012 and 24 September 2015;

6. on 22 September 2015 Finch and Shaw attended the property and observed that pump 5 was running but the mechanical flow meter was indicating zero flow. The meter reading was the same as that recorded by Finch at the end of the 2014/2015 water year three months earlier. In Shaw’s opinion this indicated that water was being extracted but not recorded and that this was an unlawful extraction;

7. Finch had expressed his concern that the pumping infrastructure was bypassing the flow meter; and

8. on 24 September 2015 Finch confronted Littore about the fact that the flow meters were not recording but that the upstream pump was running.

121. It was therefore Littore’s submission that the material established that, first, from as early as 2010 Finch was aware of the existence of the infrastructure that was unearthed in October 2019. Second, there was a belief by the relevant personnel from at least 2012 onwards that there was offending by Littore in taking water by bypassing the sanctioned monitoring systems that were in place on the property. Third, by September 2015, an inspection of the property and checks of water usage indicated that water was being extracted but not recorded by the meter. And fourth, that there was nothing new or different in the infrastructure or operations at the property since 2015 to the time the proceedings were commenced that could be said to have altered the existing state of affairs known to either Reid, Finch or Shaw.

122. The logical corollary was that on the balance of probabilities, the date upon which evidence first came to the attention of any relevant authorised officer of the alleged offences was at the least by September 2015, if not earlier, and therefore, the prosecutions were statute barred.

The Prosecutions Have Been Commenced Within Time

123. The contentions of Littore as to when evidence first came to the attention of any relevant authorised officer of the alleged offences cannot be accepted. In endeavouring to explain why this is so, it is convenient to analyse the material adduced in respect of each of the three relevant authorised officers identified and relied upon by Littore.

Date on Which Evidence of the Alleged Offences First Came to Reid’s Attention

124. It is true that Reid was an authorised officer at all relevant times. But a proper analysis of the facts reveals that he did not have evidence of the existence of Mainline 3 and its capacity to take unmetered water by operation of the river pumps prior to 31 October 2019. To the extent that Littore suggests otherwise, it must further be borne in mind that none of the evidence relied upon by Littore in respect of Reid is referrable to the 2012/2013, 2013/2014 and 2014/2015 water years the subject of three of the alleged offences.

125. Notwithstanding that Finch told Reid in October 2010 that Finch had identified two additional pumps and “pipework”, this does not mean, contrary to Littore’s submission, that Finch had identified an additional mainline, let alone an additional mainline that bypassed the meters. The direct alleged breach notification referral from Finch on 1 October 2010, was in respect of the installation of the two additional pumps, not a third mainline.

126. Upon returning to the property two to four weeks after his visit on 14 October 2010, Finch could not see any pipework and the area was covered in dirt. In any event, Littore told Finch that pipe was capped off and that all water was metered through Mainlines 1 and 2. Finch conveyed this to Reid. Finch also told Reid that he had observed the additional pumps to be running but was not sure if they were metered.

127. Reid investigated the potential offending. He attended the property on 16 February 2011. He observed five river pumps and associated discharge lines, but none of the pumps were running. Because the infrastructure was buried, he could not determine the metering arrangements. Reid advised Littore that he only had approval for three, not five, pumps, and that no application for approval had been submitted for additional pumps by Nicol.

128. It is clear from the 20 July 2011 Littore ROI that the focus of the NRAR’s investigation was on the additional unapproved pumps. When asked about the metering of the water, Littore misled Reid about the underground infrastructure. There was nothing in his answers that alerted Reid to a possible third unmetered mainline. Rather, the evidence indicated that all water pumped passed through the existing water meters. This was confirmed in cross‑examination when Reid stated that he was neither investigating the construction of an additional mainline (T17:05) nor the taking of unmetered water (T17:15).

129. That the NRAR was only concerned with the two additional pumps was again apparent when Reid conducted a ROI with Nicol on 21 July 2011.

130. In the result, the investigation was concluded by issuing Littore with a PIN on 8 August 2011, in respect of the installation and use of the two additional pumps contrary to s 91B(2) (not s 60C) of the WMA, together with a Stop Work Order. This was a separate offence that was dealt with by Reid.

131. The events of August 2011 concerned Littore’s breach of the Stop Work Order. This is demonstrated by the stated purpose of the ROI with Littore on 18 August 2011, namely, to discuss the operation of a pump the subject of the Stop Work Order contrary to s 336C (not s 60C) of the WMA. When Reid was told of river pumps operating at the property on 16 August 2011, he was advised by Finch that the meter was recording flow. Reid’s investigation concluded by issuing a letter of warning to Littore.

132. In summary, by August 2011 Reid neither had any evidence that Littore was taking water unmetered nor any evidence that he was taking water in excess of his allocation (T22:05-11).

133. It is highly unlikely, and I do not accept, that Reid had knowledge of the events of 2015 or the extent of Finch’s belief that unlawful pipework existed underground. While Shaw states that he recalls Reid investigating whether pumping infrastructure had been bypassing the flowmeter, it was Reid’s evidence in cross-examination that he did not have any further involvement in the property after August 2011 (T12:34 and 22:41) and that he had no recollection of Finch having spoken with him in 2012 about any suspicions concerning Littore. Nothing to this effect was contained in his diary in which he recorded conversations that he had concerning potential breaches of the WMA (T22:17-38).

134. But even if he did have such knowledge, the fact remains that investigations at the property to look for the third pipeline believed to be taking unmetered water unlawfully yielded nothing. It was not until October 2019 when the existence of Mainline 3 was discovered.

135. In short, there is no evidence that Reid had evidence of any act or omission constituting the offence as charged under ss 60C(1)(b) or 60C(2) of the WMA prior to 31 October 2019. Even if the suspicions harboured by Finch could be attributed to Reid, mere suspicion does not amount to evidence for the purpose of s 364(3) of the WMA.

Date on Which Evidence of the Alleged Offences First Came to Finch’s Attention

136. Finch was not an authorised officer for the purposes of the WMA prior to 8 March 2018. This is sufficient to ignore much of the factual material relied upon by Littore to argue that the NRAR had, by reference to Finch’s activities and knowledge, evidence of the alleged offences prior to 31 October 2019.

137. If, however, the interpretation afforded to s 364(3) of the WMA explained earlier in the judgment is wrong, and the knowledge that Finch had prior to being appointed as an authorised officer under the WMA is relevant, what was the date upon which evidence of the alleged contraventions of s 60C of the WMA first came to Finch’s attention?

138. To the extent that Littore relied upon much of the same evidence and similar arguments used in respect of Reid to assert that the date upon which evidence of the alleged offences first came to Finch’s attention predated 31 October 2019, the conclusion is, subject to further elaboration below, the same.

139. The evidence discloses that Finch observed a small portion of what is now known to be Mainline 3 in October 2010, together with the installation of pumps 4 and 5. Although he arguably obtained evidence of the installation of a water supply work, he did not obtain any evidence as to the operation of that pipework, and in particular, of its capacity to take unmetered water. He therefore did not secure any evidence of the offences as charged. Nor could he have done so because whatever evidence he did obtain at that juncture could not have related to offences that were allegedly committed at a later point in time, that is, in subsequent water years. In any event, Littore told Finch in November 2010 that all water was metered, which was consistent with what he told Reid during his ROI.

140. The evidence does not support Littore’s assertion that there was a previous investigation undertaken by authorised officers in around 2012 in relation the suspected third mainline. The investigation was into the use of the additional pumps which resulted in the PIN and subsequent action for breach of the Stop Work Order issued in respect of the use of the unauthorised pumps. Whatever suspicion Finch held in October 2012, it rose no higher than that. And when Shaw and Finch attended the property in 2015 to search for an additional pipeline, it could not be located. Further, when questioned about the operation of pump 5 upstream when the flow meter was not working, Littore told Finch that this was because he was pressuring the pipeline and that the flow meter was not broken.

136. On 15 November 2013 Bianca Shepherd, a Monitoring Officer at the NSW Office of Water, emailed Finch with a licence query regarding “serious meter problems” and urging him “to log them with NOW”. But when questioned about the email, Finch could not recall why he had received it (T41:29:50) and he noted that he could not check the meters at the property unless he could “actually see them physically turning” (T42:01-04). In any event, the email indicated that the three meters that were checked appeared to be working.

137. At its highest, as at 2010, 2011 and 2012, Finch had evidence of an offence pursuant to ss 91B and 336C of the WMA, namely, an offence of constructing a water supply work without approval. And between October 2012 and September 2015, Finch had concerns, beliefs and suspicions that water was being taken but not recorded. What Finch did not have, however, was evidence of an offence against either ss 60C(1)(b) or 60C(2) of the WMA.

138. This conclusion follows from the facts discussed above, in particular, that:

1. in October 2010 Finch reported observing new infrastructure on the property (new pumps, the end of a barrel going into a new line, and an empty trench outdoors with no line in it). He assumed that “the plan would be to put another line in, but it didn’t happen” (T31:20). He was told that the pipe was capped. He did not know about the gate valve on the pipe at this time (T56:44-57:51);

2. while Finch took photographs of the pipe going into the barrel in October 2010, he never took photographs of “any unauthorised third pipeline” (T43:16-17);

3. at its highest, Finch saw a two additional pumps with pipelines going to a shed and a trench with nothing in it. It was for this reason that he wasn’t sure “what was under the ground” (T46:15). In addition, Finch was told that the pipeline that he saw was capped off. In these circumstances it cannot be concluded that Finch observed a third mainline;

4. sometime afterwards Finch had a suspicion that the metered water did not appear to be enough for the crops on the ground. But he was not exactly sure because grapes can easily be removed and replanted. It was “just a suspicion” (T35:31-36:09). When Finch queried this with employees of Littore, he was told that the plants were young and did not need much water (T35:44). In any event, Finch never had access to the property to assess the scale of the crops at the time (T55:24-56:01);

5. shortly after Shaw became involved with the property, Finch communicated his belief to Shaw that a third pipeline existed that bypassed the other two meters, that did not have a meter installed, and that Littore was using this pipeline to take unmetered water (T43:06-14);

6. but an examination of the meter readings from 1 July 2010 to 18 August 2011, would have revealed an increase in water take, suggesting that the meter was recording water flow. This is consistent with what Finch reported to Reid in August 2011, that is, that the water flow was being metered;

7. as at September 2015 Finch knew that there was a faulty meter that had to be replaced and this could have been the reason why one of the pumps was operating but no meter was recording the water take (T46:44-47:04);

8. as at September 2015 Finch knew that there was pipework that he had seen in 2010 that Littore had told him was capped (T47:26);

9. Finch looked for the third mainline using a water jet and excavator during his inspection of the property in September 2015 “but I couldn’t find anything. So, that was that” (T48:46);

10. between September 2015 and October 2019, Finch had little to do with the property (T28:11-21); and

11. prior to receiving the email on 31 October 2019 alerting him to the existence of a third mainline, he did not know that it existed, he did not know that there was a gate valve on the pipe, and he did not know that the third mainline was not metered (T56:44-57:49).

144. By September 2015 Finch undoubtedly suspected, based upon observations made during his attendance with Shaw at the property, that an upstream pump was running but that the meters were not displaying any flow, and that therefore, there was pumping infrastructure that was bypassing the flow meter. But a search of the property on 23 September 2015, using water jet probes and excavation, did not locate any pipeline. Likewise, the inspection on 24 September 2015 did not yield any further relevant information other than an explanation provided by Littore as to why the flow meter was not recording water take, notwithstanding the fact that pump 5 was running. Put another way, the investigation revealed no evidence of an additional mainline and no evidence that water was taken in excess of a water allocation.

145. It was not until 31 October 2019 when Fricke contacted Finch to advise him that Mainline 3 had been located on the property that evidence first came to Finch’s attention of the alleged offences against s 60C of the WMA. The discovery at this point in time that the mainline had a gate valve that could be turned on and off in order to bypass the meter was highly significant because it indicated that Littore intended to take the water otherwise than in accordance with his water allocation, which is an element of “the alleged offences” charged under s 60C(1)(a) of the WMA (but not the offences pursuant to s 60C(2) of that Act).

146. While it is true that as at September 2015 Finch had evidence indicating the existence of a portion of another mainline, namely, the 2010 photographs taken by him of the pipework and his observations of unmetered water having been taken by one of the river pumps, this was not evidence of an offence of water being taken in excess of a water allocation during a relevant water year. This was, at best, circumstantial evidence of the method by which unmetered excess water was obtained; not that this had in fact taken place. It was only upon the discovery of Mainline 3, allowing for both metered and unmetered water to be taken, that an explanation emerged as to how unreported water, that was on its face within Littore’s water allocation, was being utilised on the property during the charge periods.

147. In light of the fact that no additional water infrastructure could be located on the property until October 2019, I do not accept Littore’s submission that there was an obligation on the NRAR to obtain expert evidence as to the water being used at the property to confirm the suspicions that Finch and Shaw held between October 2012 and October 2019.

Date on Which Evidence of the Alleged Offences First Came to Shaw’s Attention

148. Again, Shaw was not an authorised officer for the purposes of the WMA prior to 8 March 2018. This is likewise sufficient to dispense with the 2012 and 2015 factual material relied by Littore to argue that the NRAR had, by reference to Shaw’s activities and knowledge at that time, evidence of the alleged offences before 31 October 2019.

149. In any event, the factual chronology again demonstrates that evidence of the alleged offences against s 60C of the WMA did not come to Shaw’s attention until Mainline 3 was discovered in October 2019.

150. Shaw stated in his written material that he was aware that Finch harboured suspicions of the existence of a third mainline when he inspected the property in 2012. But that no evidence whatsoever was obtained at that time verifying this speculation.

151. Between October 2012 and September 2015 Shaw was concerned, and Finch had his doubts, that the meters at the property were not capturing all of the water take (T66:04-21). An alleged breach notice was submitted by Finch and his concerns were reported to the compliance team, which included Shaw’s manager, Scott Barber (he was not called as a witness by either party and there is no evidence that he was an authorised officer at the relevant time) and there was nothing further that Shaw and Finch could do (T66:15-42).

152. According to Shaw’s affidavit, on 22 September 2015, when he visited the property with Finch, Shaw observed an upstream pump running with the flow meter recording zero flow. In addition, he recorded in his diary that a reading was unchanged from a previous meter reading taken three months earlier.

153. One explanation for the zero reading was that the pumping infrastructure was bypassing the flow meter and that water was being extracted but not recorded by the meter (T67:43-47). But the uncontested evidence was that the water could pass through any of the flow meters and that no recording was taken from any other meter that day. These meters could have recorded flows for the previous water year, 2014/2015 (the last of the charge periods).

154. Shaw stated that he did not have a concern that the flow meter was not working properly in September 2015 (T68:47). Later, however, he said that he did not “have a full understanding of…how it [the meter] worked” (T75:03-05) and he agreed with the proposition that he had some doubts as to whether it was a deliberate bypass or whether the flow meter was not working (T76:05-15). He had also contemplated that the flow meter could be faulty, that it was being replaced, and that it could be monitored in the future to ascertain if it was recording water take. This was consistent with the evidence that Finch gave.

155. Shaw and Finch did not ignore their concerns. On the contrary, they asked Littore about the zero reading and was told that it was because he was pressuring the pipeline. They also attended the property on 22, 23 and 24 September 2015 and tried by various means to locate the additional mainline but could not do so. I agree with the submission of the NRAR that the fact that Shaw and Finch undertook efforts to try to locate the third mainline demonstrate that they did not consider that they had evidence substantiating any particular offence – let alone “the alleged offence” as charged – at that time. This was reinforced by Shaw’s oral evidence. Shaw stated that he did not speak to anyone about what he had observed at the property in September 2015 because “our observation didn’t reveal another pipeline, so there was not a lot we could talk about” (T72:01-02).

156. In short, in September 2015 Shaw and Finch sought to obtain evidence to verify their suspicions, beliefs and concerns, but none was found. That is, they could find no evidence of any alleged offence, let alone the alleged offences with which Littore was subsequently charged.

157. At its very highest, there was a belief (as evident by Shaw’s diary entries) that unmetered water was being taken during the 2015/2016 water year. This was not a water year the subject of the charges. In other words, this was not evidence of “the alleged offence” (emphasis added), merely, an alleged offence.

158. Repeating the reasoning and findings above with respect to Reid and Finch, it was not until the existence of Mainline 3 was reported on 31 October 2019 that s 364(3) of the WMA was engaged and that time began to run.

The Evidence Relied Upon by Littore Does Not Fall Within a Water Year as Charged

159. Finally, it must be recalled that neither the events of 2010, almost all of 2011, nor 2015, fall within a water year the subject of the charges. This is fatal to Littore’s application in respect of the charges concerning the 2012/2013, 2013/2014 and 2014/2015 water years. Moreover, to the extent that Littore seemed to depart from his written submission during oral argument to disavow any reliance on acts or omissions occurring during 2010, 2011 and 2012 that came to the attention of Reid, Shaw or Finch during this period, this renders terminal his application in its entirety across all summonses. The events of September 2015 - which would fall within the 2015/2016 water year - are not the subject of a charge.

Conclusion and Orders

160. The proper construction of s 364(3) of the WMA means that time commences to run from the date upon which any such evidence first came to the attention of Reid, Finch and Shaw in their capacity as authorised officers, which in the case of Finch and Shaw, could not have occurred prior to 8 March 2018.

161. Littore has failed to prove that evidence of an act or omission constituting any of the alleged offences first came to the attention of any relevant authorised officer appointed under the WMA, including Reid, Finch or Shaw, prior to 31 October 2019.

162. It follows that:

1. the notice of motion is dismissed;

2. the exhibits are to be returned; and

3. the matters are listed before the List Judge on 31 May 2024 for further directions.

**********

Decision last updated: 17 May 2024