Secretary, Department of Planning and Environment v Goodman Property Services (Aust) Pty Ltd; Secretary, Department of Planning and Environment v Burton Contractors Pty Ltd T/as Burton Civil Engineering Contractors.. - [2021] NSWLEC 34

Land and Environment Court

New South Wales

Medium Neutral Citation: Secretary, Department of Planning and Environment v Goodman Property Services (Aust) Pty Ltd; Secretary, Department of Planning and Environment v Burton Contractors Pty Ltd T/as Burton Civil Engineering Contractors (No 2) [2021] NSWLEC 34
Hearing dates: 9 and 10 December 2020
Date of orders: 16 April 2021
Decision date: 16 April 2021
Jurisdiction: Class 5
Before: Moore J
Decision:
See orders at [152]-[153]

Catchwords:
PRACTICE AND PROCEDURE - earlier charges (identical for each Defendant) found to be defective - Prosecutor provided with the opportunity to replead the charge - Prosecutor seeks to rely on an Amended Summons against each Defendant - Defendants oppose the proposed repleaded charge - several further iterations of a repleaded charge proposed by the Prosecutor (including during the hearing) - Prosecutor seeks and is granted leave during the course of the hearing to rely on a final version of a proposed Amended Summons - Defendants attack the final version of the proposed Amended Summons on a number of discrete bases - the first complaint was that the proposed Amended Summons seeks to plead a charge not known to the law - held that the proposed Amended Summons pleads a charge not known to the law - the second complaint was that the charge in the proposed Amended Summons is patently duplicitous - held that the charge in the proposed Amended Summons is patently duplicitous - the third complaint was that the charge in the proposed Amended Summons is latently duplicitous - held that the charge in the proposed Amended Summons is latently duplicitous - the fourth complaint was that the charge in the proposed Amended Summons is a fresh charge laid after the expiry of the relevant statutory limitation period - held that the charge in the proposed Amended Summons did constitute a fresh charge sought to be laid, impermissibly, after the expiry of the relevant statutory limitation period - the fifth complaint was that the charge in the proposed Amended Summons is impermissibly uncertain - held that the charge in the proposed Amended Summons is impermissibly uncertain - each of these five defects separately warrants refusal of leave being granted to the Prosecutor to rely upon the proposed Amended Summons - not appropriate to provide the Prosecutor with any further opportunity to seek to replead - proceedings to be dismissed - costs reserved.

Legislation Cited:
Criminal Procedure Act 1986, s 21
Environmental Planning and Assessment Act 1979, ss 76A(1) and 125(1)
Land and Environment Court Act 1979, s 68

Cases Cited:
Attorney General (NSW) v Built NSW Pty Ltd (2013) IR 102; [2013] NSWCCA 299
Director of Public Prosecutions (Vic) v Kypri (2011) 33 VR 157; [2011] VSCA 257
Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77
Kiangatha Holdings Pty Ltd v Water NSW [2020] NSWCCA 263
Kirk v Industrial Relations Commission (2010) 239 CLR 531; [2010] HCA 1
Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2018] NSWCCA 202
Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2020] NSWCCA 74
S v R (1989) 168 CLR 266; [1989] HCA 66
Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26

Texts Cited:
Managing Urban Stormwater: Soils and Construction, Landcom, 4th ed, March 2004

Category: Procedural rulings
Parties:
Matter No 87062 of 2019
Secretary, Department of Planning and Environment (Prosecutor)
Goodman Property Services (Aust) Pty Ltd (Defendant)
Matter No 87038 of 2019
Secretary, Department of Planning and Environment (Prosecutor)
Burton Contractors Pty Ltd T/as Burton Civil Engineering Contractors (Defendant)
Representation:
Counsel:
Matter No 87062 of 2019
Mr P Singleton/Ms A Rose, barristers (Prosecutor)
Mr T Howard SC/Mr J Johnson, barrister (Defendant)

Matter No 87038 of 2019
Mr P Singleton/Ms A Rose, barristers (Prosecutor)
Mr C Ireland, barrister (Defendant)

Solicitors:
Matter No 87062 of 2019
Secretary, Department of Planning and Environment (Prosecutor)
Allens Linklaters (Defendant)
Matter No 87038 of 2019
Secretary, Department of Planning and Environment (Prosecutor)
Colin Biggers & Paisley (Defendant)

File Number(s): 87062 and 87038 of 2019
Publication restriction: No

TABLE OF CONTENTS

Introduction

The Prosecutor’s first Notices of Motion

The Prosecutor’s second Notices of Motion

Challenges to the proposed amended charges

Representation

Further amendment to the proposed amended charges

Goodman and Burton’s Notices of Motion

The hearing of 10 December 2020

Relevant documentation

The Prosecutor’s submissions on the Amended Summons

Burton’s submissions on the Amended Summons

Introduction
A charge not known to law
Patent duplicity
Latent duplicity
The charge is a new charge
The charge is impermissibly uncertain
Identification of Catchment 1
The problem of the words “the approach”
Injustice to the parties
Finality

Goodman’s submissions on the Amended Summons

The Prosecutor’s reply submissions

Consideration

Introduction
A charge not known to law
Patent duplicity
Latent duplicity
This is a fresh charge
The charge is impermissibly uncertain
The necessity for finality

Conclusion

Costs

Orders

In Matter no 87062 of 2019:
In Matter no 87038 of 2019:

Annexure A

Annexure B

Judgment

Introduction

On 19 March 2019, the Secretary of the Department of Planning and Environment (the Prosecutor) commenced criminal proceedings against Goodman Property Services (Aust) Pty Ltd (Goodman) and Burton Contractors Pty Ltd t/as Burton Civil Engineering Contractors (Burton). Goodman and Burton are also, subsequently, referred to collectively as “the Defendants” when it is appropriate to do so.
In each instance, a single charge was laid alleging that development had been carried out at the Oakdale South Industrial Estate (the site), a location at Kemps Creek in Sydney’s west, in breach of a condition of the development consent approving development of the site.
On 16 August 2019, Burton filed a Notice of Motion challenging the validity of the Summons directed to its activities.
On 20 August 2019, Goodman also filed a Notice of Motion challenging the Summons that had been issued to it.
Following a hearing on 6 February 2020, on 13 May 2020, I handed down my decision in Secretary, Department of Planning and Environment v Goodman Property Services (Aust) Pty Ltd; Secretary, Department of Planning and Environment v Burton Contractors Pty Ltd T/as Burton Civil Engineering Contractors [2020] NSWLEC 52.
In each instance, I found that the Summons was bad for duplicity. The Prosecutor was given time to consider whether to seek leave to amend the Summonses.

The Prosecutor’s first Notices of Motion

Following a hearing on 10 June 2020, the Prosecutor filed Notices of Motion in each of the proceedings seeking leave to rely upon an Amended Summons, as against each of Goodman and Burton. These Notices of Motion were listed for hearing on 9 and 10 December 2020. The proposed amended charges were, relevantly, in identical terms.

The Prosecutor’s second Notices of Motion

On 14 September 2020, the Prosecutor filed further Notices of Motion in each matter seeking to substitute alternative draft Summonses to replace those that had been filed on 23 June 2020. Goodman and Burton indicated that they did not oppose the substitution of these new draft Summonses as forming the basis of matters to be dealt with when I considered the Prosecutor’s Notices of Motion on 9 and 10 December 2020.
All parties proposed that I deal with this substitution in chambers in order to ensure that the parties had sufficient time to address the new draft Summonses in their written submissions prior to the scheduled December 2020 hearings. As a consequence, on 1 October 2020, I made consent orders effecting, in the Notices of Motion in each of the Goodman and Burton proceedings, the substitution of the two proposed replacement Amended Summonses.
The proposed revised amended charges remained, relevantly, in identical terms.

Challenges to the proposed amended charges

At a mention before me on 10 July 2020, counsel for each of Goodman and Burton indicated that they wished to resist leave being given to the Prosecutor to amend in the fashion sought in the Notices of Motion filed on 23 June 2020. These challenges were said to be on the basis that the proposed reformulated charges were also duplicitous. A hearing for the purposes of addressing these challenges was set down for 9 and 10 December 2020.

Representation

Mr P Singleton and Ms A Rose, barristers, appeared for the Prosecutor while Mr T Howard SC and Mr J Johnson, barrister, appeared for Goodman and Mr C Ireland, barrister, appeared for Burton. The Prosecutor’s application was heard on 9 and 10 December 2020, the hearing being held, as a consequence of the COVID-19 pandemic, using Microsoft Teams software without the necessity for any physical attendance in the courtroom. The hearing was conducted in accordance with the Court's then applicable COVID-19 Pandemic Arrangements Policy.

Further amendment to the proposed amended charges

For the purposes of understanding that which arose to give rise to the Prosecutor filing a further, subordinate Notice of Motion seeking leave to amend the proposed Summonses, thus leaving the 23 June 2020 Notices of Motion seeking to rely on Amended Summonses significantly different to those which were originally proposed in June 2020, it is necessary to recount a little of what occurred during the hearing on 9 December 2020.
The critical element of understanding what follows is the fact that the charges in the proposed June 2020 Summonses sought to particularise the “Manner Of Breach”, in each instance, in some more than 130 lines of text said to describe how Goodman and Burton had breached Condition E25.
One critical element of this descriptive material addressed matters relating to a sediment retention basin, with a second element being infrastructure appurtenant to and servicing such a basin. It is to be noted, here, that for the purposes of what was said to be involved by the Prosecutor, only one basin potentially provided a basis for the charge.
However, during the course of the early stage of the hearing, I drew the attention of the Prosecutor to the fact that, in the first paragraph in the particulars under the heading “Manner of Breach”, the word utilised was “basins”, a term in the plural. The Prosecutor sought and was granted leave to rectify this plural designation by turning the term to “basin” in the singular in the two instances where the plural appeared. Leave for this purpose was granted.
The next procedural step arose when, in response to the written submissions that had been filed for Goodman and Burton, the Prosecutor sought leave to amend the particulars in a further (more significant) respect by removing three separate references that had sought to incorporate the concept of infrastructure appurtenant to the sediment retention basin so as to confine the charge simply to the basin itself. I declined to grant leave for this amendment.
After an adjournment to permit the Prosecutor to consider its position, it was indicated that the Prosecutor wished to consider filing further Notices of Motion to seek leave to amend the proposed Amended Summonses provided for in the June 2020 Notices of Motion. The proceedings were adjourned to permit the Prosecutor to pursue further this course.
Later that day, the Prosecutor filed further Notices of Motion (one in each proceedings) seeking leave to amend the proposed Summonses that had been filed on 23 June 2020. In doing so, the Prosecutor no longer sought to rely on any of the alternative Summonses that had been sought to be supported in earlier Notices of Motion. The Notices of Motion seeking to amend the June 2020 Summonses now proposed a concise statement of the Manner of Breach, being a statement, in each instance, in the following terms:

(e) Manner of breach
The Defendant failed in respect of the catchment area labelled “1” in the diagram in the Schedule hereto to satisfy the requirement imposed by clause 6.1.3 (d) (ii) of Managing Urban Stormwater: Soils and Construction [Landcom, 4^th ed., March 2004] (‘the Blue Book’).

Goodman and Burton’s Notices of Motion

On 3 December 2020, Notices of Motion were filed on behalf of Goodman and Burton. These Notices of Motion, being in identical terms, sought that the proceedings be dismissed and that the Prosecutor pay the costs of the relevant Defendant.

The hearing of 10 December 2020

The further revised proposed wording in the proposed Amended Summons attached to the 9 December Notices of Motion became the subject of the contest at the hearing on 10 December 2020. This decision addresses the objections pressed on behalf of Goodman and Burton to this proposed revised wording.

Relevant documentation

There is no necessity to set out any of the relevant statutory provisions. It is, however, appropriate to set out:

The terms of Condition E25. The condition is in the following terms:

E25. During construction works, the Applicant shall implement and maintain best practice erosion and sediment control measures on-site, in accordance with the relevant requirements in the latest version of the Managing Urban Stormwater: Soils and Construction Guidelines (Landcom).

The terms of the relevant element of the Blue Book, which is cited in the particular, setting out the alleged Manner of Breach of Condition E25. The relevant clause of the Blue Book was in the Joint Tender Bundle (Exhibit A) at folio 323. The clause is in the following terms:

6.1.3   General Recommendations
(a)   ...
(b)   …
(c)   ….
(d)   The approach should be implemented completely to ensure that the desired degree of soil and water management is achieved. To be effective, it should address control/mitigation of pollution of suspended solids through reduction of soil erosion and minimisation of sediment pollution using:
(i)   …; and
(ii)   system controls that reduce the quantity of suspended solids reaching receiving waters, such as sediment retention basins, sediment traps and constructed wetlands.

The Prosecutor’s submissions on the Amended Summons

The Prosecutor submitted that, in seeking to counter any arguments of duplicity, the Prosecution was only relying upon a single alleged breach - being a breach of cl 6.1.3(d)(ii) of the Blue Book - as providing a proper foundation to establish the charge in the now relied upon proposed Amended Summons.
The Prosecutor submitted that the proposed Amended Summons was now only relying on the breach of one requirement, this being that “there is a requirement to use system controls that reduce the quantity of suspended solids reaching receding waters such as sediment retention basin, sediment traps and constructed wetlands. The proper construction of that is that there must be used system controls that have that effect, and three examples are given, and we are alleging that that requirement and only that requirement has been breached by the Defendants” (Transcript 10 December 2020, page 8, lines 41 to 47).
The Prosecutor submitted that all other potentially engaged requirements are now absorbed into that one breach.
Therefore, the Prosecutor submitted that all potential areas of duplicity had been resolved with the new particularisation of the manner of alleged breach of the particularised provision of the Blue Book.
The Prosecutor submitted that the removal of the various paragraphs of detailed explanatory particularisation in earlier proposed Summons’ versions completely removed any suggestion that the Prosecutor’s case was being mounted in a series of alternative cases.
In anticipation of any argument that the proposed Amended Summons constituted a “new charge”, and thus had not been laid within the relevant statutory time limit, the Prosecutor commenced by submitting (Transcript 10 December 2020, page 9, lines 14 to 18):

Firstly, we accept the principle and if it is a new charge brought outside the time bar then we can’t proceed. It would be banned. However, we submit that it is not, and the essential issue is whether the particulars or particular on which we now rely is a subset of the particulars on which we previously sought to rely or outside what we previously sought to rely on.

On this potential basis for challenge, the Prosecutor submitted that:

Prosecution has always relied upon an allegation of breach of cl 6(3)(1)(d)(ii) of the Blue Book in the current and previous versions of the Manner of Breach pleaded (Transcript 10 December 2020, page 9, lines 37 to 39);

The new expression of the Manner of Breach falls within the scope of sedimentation and erosion controls as mandated by cl 6(3)(1)(d)(ii) of the Blue Book;

The change in provision is as a result of a request and the updated provision identifies the trigger instead of what the requirement is (Transcript 10 December 2020, page 9, lines 44 and 45; page 10, line 1);

The particularisation has been narrowed to a subset of the previous particulars. There is no discussion “about fences, and piping, and whatever else” so, not only does this remove any possibility of duplicity, its absence does not add anything new;

An examination of the various steps in the particularisation process, including the responses from the Prosecutor to requests for further particularisation, discloses, the Prosecutor had asserted, for example, that the Defendants had “failed to construct basins B, C and D as indicated in the precinct plan consistent with ss 6.1.3 (d)(ii) and some other provisions of the Blue Book” and the now pleaded Manner of Breach merely narrowed this to a confined and precise breach (Transcript 10 December 2020, page 10, lines 8 to 12); and

At the time of filing of the Statement of Facts, the reference to sediment control earlier in the Summons relied not only upon the terms of cl 6(3)(1)(d)(ii) of the Blue Book but its substance as well.

Burton’s submissions on the Amended Summons

Introduction

Mr Ireland identified five bases upon which he proposed that the now proposed charge was defective. In summary, these were that:

The charge was not known to the law as it does not allege a breach of Condition E25 in the terms of that condition;

The charge, as a matter of substance rather than of form, alleges a breach of multiple requirements of the Blue Book and is thus patently duplicitous;

The wording of cl 6.1.3(d)(ii) itself gives rise to an issue of latent duplicity;

The terms of cl 6.1.3(d)(ii) cause the charge to be impermissibly uncertain; and

The charge now proposed is a fresh charge and is, therefore, impermissible as it is out of time.

A charge not known to law

Mr Ireland outlined what he described as the elements of the charge in the proposed Amended Summons. These were:

The first element was a failure in relation to Catchment 1 as defined by reference to the diagram in the schedule attached to the Amended Summons. He noted, however, that Catchment 1 had not been identified in that fashion in the precinct plan that formed an essential part of the original charge as particularised or informed by the Prosecutor’s Statement of Facts;

The second element of the charge is a failure to satisfy. He noted that this was not within the language of Condition E25 and that it was not the language of “implementation and maintenance” (Transcript 10 December 2020, page 12, lines 12 to 15);

The failure to satisfy was to do that with respect to the requirements of cl 6.1.3(d)(ii). Mr Ireland submitted that “the use of the singular in the charge cannot escape or avoid the implications of the plain language of 6.1.3 which is a clause that employs multiple requirements” (Transcript 10 December 2020, page 12, lines 19 to 21.

These three elements, looked at together, do not identify a charge which is known to law, he submitted - a position able to be understood when compared to the formulation of the charge as originally filed on 19 March 2019.

In this regard, Mr Ireland relied upon the decision of Gaudron and Gummow JJ in Walsh v Tattersall [1996] 188 CLR 77 (Walsh v Tattersall), at page 91, to the effect that when a statute (in that instance) creates a specific offence, the terms of a charge must reflect expressly the terms of the statutory provision and not otherwise. If it is otherwise, such a charge would not constitute one created by the relevant statute. The express language of the relevant statutory term was departed from and thus could not give rise to a valid charge.
Mr Ireland explained what he said was the application of this principle in the present circumstances in the following terms (Transcript 10 December 2020, page 14, lines 6 to 21):

The words “implement” and “maintain” are important words in E25, that’s why no doubt are picked up in the original Summons. A simple failure to satisfy, that is a different concept to a failure to specifically implement and maintain during construction works, mess [best] practice, sediment and erosion controls in the requirements of or in accordance with the relevant requirements of the Blue Book.
So there has been both the addition of a new element, the failure to satisfy, and in addition there has been the omission of existing elements of any proper charge brought consistently with the statutory language of condition E25. There has been a complete omission of a reference to during construction works, for example, or indeed to the concept of best practice erosion and sediment controls. But the key point over and above the omission of elements that also indicates and on which I rely as indicating that the charge as sought to be brought is not one known to the law, the key thing that makes that argument, I submit, not able to be controverted is the addition of this new element.

Mr Ireland further relied on the decision of Bathurst CJ (Beazley P and Hoeben CJ at CL concurring) in Attorney General (NSW) v Built NSW Pty Ltd (2013) IR 102; [2013] NSWCCA 299, at [137], for the proposition that the adding of any new element which is not part of the relevant statutory language (as is here the case, he submitted) has the effect of rendering such a charge one which is unknown to the law and is, therefore, a nullity.
The combination of the above cited decisions, as I understood his submission, was that the departure from the language used in Condition E25 and by the addition of a new element absent from Condition E25 to the wording of the charge, rendered the charge unknown to law in the fashion discussed in those decisions.

Patent duplicity

Mr Ireland submitted that the language of cl 6.1.3(d)(ii), itself, identified in terms three specific types of structure that constituted a “system control” for the purposes of the provision. In addition, he submitted that the definition of “sediment traps” contained in the Blue Book made it clear that, at the very least, sediment traps were conceptually different from sediment retention basins. He further submitted that the concept of sediment traps, as used by the Blue Book, is broad enough to include “sediment fences” (Transcript 10 December 2020, page 21, lines 13 to 15).
He further submitted that the Blue Book, itself, made it clear that sediment traps, as a concept, not only referred to built structures but could also be a concept inclusive of grassed or natural depressions that had the effect of trapping sediment.
Mr Ireland submitted that the charge was patently duplicitous - citing Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2018] NSWCCA 202 at [59] and [60]. Mr Ireland submitted (Transcript 10 December 2020, page 22, lines 16 to 19):

… either it’s impermissibly uncertain and gives rise to patent duplicity for this reason because it doesn’t select amongst the particular individual requirements of 6.1.3(d) or it’s duplicitous in the sense of including multiple requirements that are alleged to be infringed in the one charge …

His concluding submission on this point was that the issue of patent duplicity was to be determined on the material presently before the Court, being the terms of the now proposed Amended Summons sought to be relied upon by the Prosecutor. Issues of potential rectification by further particularisation were not relevant, as the charge presently formulated applied to multiple potential controls (a grouping of controls themselves to be regarded as examples by the use of the words “such as” and thus not to be taken as an exhaustive list) which meant that the lack of precision rendered the charges now formulated patently duplicitous.
Reinforcement of this, he submitted, is evidenced by the decision of Fagan J (Hoeben CJ at CL and Rothman J concurring) in Kiangatha Holdings Pty Ltd v Water NSW [2020] NSWCCA 263 (Kiangatha), at [70], where the necessity for compliance with the general criminal law prescriptions, with respect to not permitting multiple discrete infringements of environmental protection laws being prosecuted on single‑count summonses, was confirmed. Fagan J said, concerning the rule against duplicitous pleading:

The rule is essential to the administration of criminal justice and must be applied to prosecutions of offences of all kinds.

Latent duplicity

With respect to latent duplicity, Mr Ireland dealt with this topic comparatively briefly. His submission was that the use of the words “such as” in cl 6, created a degree of uncertainty in the fashion dealt with by the High Court in Johnson v Miller (1937) 59 CLR 467, [1937] HCA 77 as giving rise to latent duplicity.
This submission was in addition to, and separate from, that discussed above concerning the multiple potential structures nominated in the clause said to give rise to patent duplicity. The latent duplicity occurs, he submitted, as a consequence of the fact that the list in the clause is not a closed one. There would be, potentially, a range of other structures arising from the terms of the Blue Book potentially encompassed by the clause because the list was not closed and was not exhaustive. This, he submitted, rendered the charge latently duplicitous.

The charge is a new charge

Mr Ireland next turned to address the proposition that the charge, as now proposed by the Prosecutor, constituted an entirely new charge. This proposition was advanced on the basis that the plan in the schedule to the now proposed Amended Summons (see Annexure A to this decision) did not reflect the identifying elements of the site as forming part of the original charge. The original Summons was based on an area identified in a precinct plan, a plan which appeared at folio 348 of Exhibit A, the Joint Tender Bundle. For the purposes of understanding these submissions, I have incorporated a copy of that precinct plan as Annexure B to this decision.
Mr Ireland submitted that the Prosecutor’s selection of the basis for a charge upon which it now seeks to rely was a charge which ought not be permitted as permitting such an amendment would constitute a fresh charge out of time in circumstances where Burton and Goodman had not been given effective notice of the true substance of the proposed amended charge. This fresh charge submission, as I understood him, proposed that leave to rely upon the proposed Amended Summons ought be denied solely on this basis.
The fundamental difference to which Mr Ireland drew attention in a comparison between these two documents was that the plan in Annexure B did not identify any area on it as comprising Catchment 1 - a nominated element of the present proposed charge.
I interpolate here that, separately, I will later turn to a matter which I raised concerning whether or not Annexure A, in itself, was sufficiently precise to be able to found the charge in the Amended Summons now before the Court. This is a separate issue and one not to be confused with this issue raised by Mr Ireland.
In this context, Mr Ireland proposed that nothing in the initial particularisation of the original charge could be regarded as pleading a breach of cl 6.1.3(d)(ii) by reference to Catchment 1, given that no feature of that descriptor appeared anywhere in any of the material relied upon by the Prosecutor in its Statement of Facts (that document being behind Tab 17 of the Joint Tender Bundle and including the plan now reproduced as Annexure B). To the extent that the Prosecutor's Statement of Facts alleged a failure to construct any sediment basins, that was addressed at paragraph 42 of the Prosecutor's Statement of Facts with respect to identified sediment basins referred to by identifying letters able to be discerned on the precinct plan (Annexure B).
In this context, he submitted that the nature of the particularisation in the Prosecutor's Statement of Facts, to the extent that it referenced cl 6.1.3(d)(ii), could not be understood to form a sufficient basis for that which was proposed in the now formulated Manner of Breach pleaded by the Prosecutor.
This, he submitted, when considered overall, meant that that which was now said to be the Manner of Breach of Condition E25 constituted a new charge and not one having any proper foundation in the charge as originally formulated or in the material pleaded by the Prosecutor in its Statement of Facts in support of that original charge.
These differences, he proposed, inevitably lead to the conclusion that that which was now sought to be prosecuted in the proposed Amended Summons constituted, in reality, a fresh charge and a charge that was now sought to be brought after the expiry of the two‑year statutory limitation period. In support of this proposition, he cited elements from the decision of the Victorian Court of Appeal in Director of Public Prosecutions (Vic) v Kypri (2011) 33 VR 157; [2011] VSCA 257 (Kypri), at [37] (Nettle JA), [65] (Ashley JA) and [87] (Tate JA), to the effect that unambiguous information defining the charge sought to be relied upon had to be provided to a defendant within the relevant statutory time limit.
In this context, Mr Ireland submitted, as I understood him, that the differences between Annexure A, relied upon for the present Amended Summons, and Annexure B, relied upon for the original charge, were so sufficiently different that this principle could not be said to be satisfied. This meant that no proper notice of the (now) proposed charge had been given to the Defendants within the statutory limitation period.
This, he proposed, should lead to me concluding that that which was now sought to be prosecuted constituted a fresh charge which had been laid out of time and one which was, therefore, impermissible.
The decision of the Court of Criminal Appeal in Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2020] NSWCCA 74, at [45], established that Kypri reflected the position in this state, Mr Ireland submitted.

The charge is impermissibly uncertain

Mr Ireland submitted that his client was entitled to be informed of not only the legal nature of the offence with which it was charged, but also the nature of the particular act, matter or thing alleged to provide the foundation for the charge (citing the decision of the plurality in Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1 (Kirk)). It is sufficient, for the purpose of understanding this objection, to set out what Mr Ireland submitted as a summary of this defect (Transcript 10 December 2020, page 28, lines 44 to 50):

It doesn’t disclose the time, manner and place of offending but it covers a very large area of land, an undefined area of land and alleges the potentially multiple different kinds of defects. Failure to install various or failure to approach the management of that area with various system controls including basins, sediment traps and constructed wetlands and the word approach that I’ve just used that comes from clause 6.13dii and sort of calls out for proper particularisation of any charge alleging a brief of that clause.

Although the failure in Kirk to identify the particular act or omission, or set of acts or omissions, alleged to constitute the contravening conduct arose from a statutory misconstruction (Kirk at [74]), that which here arises is a failure of the Prosecutor to identify with sufficient specificity the necessary facts of the acts or omissions of the Defendants said to give rise to the charge.
For this reason, Mr Ireland submitted, the charge is defective as it is impermissibly uncertain.

Identification of Catchment 1

During the course the hearing on 10 December 2020, I enquired of Mr Ireland as to whether Catchment 1, as depicted on the schedule nominated in the “Manner of Breach” element of the now proposed Amended Summons, was adequately and accurately depicted on the document that is Annexure A to this decision. It is unnecessary to set out, at length, the matters submitted by Mr Ireland as demonstrating that there was significant uncertainty on Annexure A as to the boundaries of Catchment 1 (but his submissions were recorded in the transcript from page 16, line 25 to page 17, line 24). Mr Ireland also submitted that Catchment 1 did not form any part of the evidence of Mr McLeod, the Prosecutor's expert environmental scientist. Expert reports from Mr McLeod dated 21 December 2018 and 16 January 2019 were in evidence behind Tab 13 of Exhibit A with a supplementary report from him, dated 1 September 2020, also being in evidence behind Tab 14 of Exhibit A.
Mr Ireland submitted that the plan now sought to be relied upon (Annexure A) did not form any part of Mr McLeod's original reports. He submitted that, on the basis of a proper understanding of Mr McLeod's evidence, he approached his analysis on the basis of a site‑wide consideration and disavowed the proposition that the universal soil loss equation could be applied to particular parts or areas of the overall site (Transcript 10 December 2020, page 17, lines 34 to 41). This, as I understood him, supported the proposition advanced for Burton that reliance on the plan (Annexure A) made it clear that that which was now sought to be relied upon by the Prosecutor was an entirely fresh charge and one with respect to which the Defendants had not had proper notice.
In this context, it is appropriate to note that I raised with the Prosecutor, following the above discussed submissions from Mr Ireland, the following question concerning whether or not the sediment retention basin depicted on Annexure A was or was not within Catchment 1 as depicted on that plan, as there appeared to me to be insufficient definition on Annexure A to identify whether or not that sediment retention basin was within Catchment 1. I posed this question to Mr Singleton (Transcript 10 December 2020, page 18, lines 19 and 20):

Does that lack of definition not render the charges presently formulated simply incapable of being responded to by the Defendant?

That question was posed by me to the Prosecutor immediately prior to the taking of the morning adjournment on 10 December 2020. Following that adjournment, the transcript records the following with respect to the question which I had proposed (Transcript 10 December 2020, page 18, line 34 to page 19, line 14):

SINGLETON: Your Honour, before morning tea you raised the issue of the depiction of catchment number one, it being a schedule to the proposed Amended Summons and the issue your Honour has raised could have a couple of different elements. I propose with respect to deal with it starting with a reference to the fact that the issue has come up in the context of Mr Ireland’s contention that there is an in charge in the proposed Amended Summons as opposed to a narrower form of the old.
The schedule, that is the diagram, has only one purpose and that is to define what catchment one is. It is incorporated by reference the particular being Manner of Breach, that is the only reference in the entire document to the schedule and the only purpose to define what catchment one is. Insofar as this is related to the issue of whether there is a new charge, the question is--
HIS HONOUR: But that’s not the proposition I raised with you, it’s not the proposition that is of concern to me. The proposition that is concerned to me is that given that the diagram in the schedule is an element defining the nature of the charge, the diagram doesn’t tell me whether the kidney shaped sedimentation basin is in or out of catchment one.
SINGLETON: Yes. So the issue, your Honour, is properly analysed as one of whether or not further and better particulars could be requested or not and one way of framing a request for further and better particulars would be just to say give us a diagram that shows where the red dot line is underneath that blue kidney shaped blotch. Another way of asking might be does the red dotted line go by way of two straight continuations of the ones that we can see or does it go around one edge or the other of the kidney. There are various ways one could ask the question but that’s the issue, further and better particulars. The Defendants are perfectly entitled, if this document is filed, to write and ask for further and better particulars and we would provide them, that is how we analysed the issue.

At the conclusion of the above passage, Mr Ireland responded, submitting (Transcript 10 December 2020, page 19, lines 20 to 44):

IRELAND: … just briefly, the complete answer to that proposition is that to be an effective legally sufficient charge, essential particulars of time, manner and place must form part of a charge, they’re termed of course essential factual particulars and your Honour will recall the importance attached to these essential factual particulars in for example Kirk in the Industrial Court. It’s a jurisdictional matter, your Honour, it cannot provide it and plainly as your Honour has with respect correctly identified by the fact that this schedule leaves it completely open as to whether catchment one just includes for example the kidney shaped sediment basin or whether it goes on to include those two sediment basins shown to the north, also within the site area and areas to the north of the kidney shaped sediment basin. These things are just completely unknown and that goes to the relevant place of offending, apart from anything else as well as of course the manner of any offending where the alleged system controls to use the language of cl 6.1.3(d) existed, including those two additional basis that may be within or out of catchment one and of course we don’t even known whether the kidney basin itself is within or outside of catchment one.
With respect, it’s not, the submission was possibly faintly put by my learned friend but your Honour can’t properly conclude that to say to a Defendant in the face of such a fundamental deficiency in a charge, well, you can yourself formulate questions and try and get it right for us and you may ask the question along these lines. Your Honour, this is another key deficiency in the charge that would in my submission result in your Honour not granting leave to the amendment that is sought.

The problem of the words “the approach”

During the course of Mr Ireland’s submissions, I asked him how could I find the appropriate meaning for the words “the approach”, these being the introductory words to cl 6.1.3(d), the relevant chapeau to the (ii) element breach of which the Prosecutor relies upon to found the now proposed Amended Summons. The transcript records me raising this with Mr Ireland at page 29, lines 15 to 20 and at 25.
Mr Ireland's response, properly understood in my view, is that the use of such an ordinary English language phrase merely accentuates the defects that arise as a consequence of the Prosecutor selecting this provision as the basis upon which to particularise the “manner of the breach” underlying the charge laid against Burton and against Goodman. Mr Ireland continued, submitting that the generality of the language used demonstrated the absence of sufficient particularisation of the breaches alleged against each Defendant, given the general and open nature of matters potentially arising from the language of the provision.

Injustice to the parties

Mr Ireland then addressed s 21 of the Criminal Procedure Act 1986 (the Criminal Procedure Act) and s 68 of the Land and Environment Court Act 1979. In this context, he submitted that a proper comparison of the charge which I had found to be defective in May 2020 with that which was now advanced by the Prosecutor in the proposed Amended Summons would cause injustice to Burton if the Prosecutor was permitted to proceed on this new basis (submitting that such an approach would be contrary to s 21(1) of the Criminal Procedure Act). Such a process, he submitted, would be manifestly unfair to Burton and productive of injustice (Transcript 10 December 2020, page 30, lines 44 to 47).

Finality

Mr Ireland concluded by submitting that, if I was satisfied that that which was now proposed by the Prosecutor was fatally defective, the appropriate course was to grant the primary relief sought in Burton's Notice of Motion of 3 December 2020 and dismiss the proceedings. He summarised this position, saying (Transcript 10 December 2020, page 31, lines 17 to 22):

The Prosecutor has been given ample opportunity to respond and come up with an effective election to deal with the duplicity found in your Honour’s May 2020 judgment. What’s been provided for the reasons I’ve outlined no doubt the Prosecutor has done its best but an adequate and sufficient charge has not been arrived at so your Honour in my submission has no choice but to now dismiss the proceedings.

It is to be noted that Mr Ireland also submitted, in his closing remarks, that costs should be reserved rather than, as sought in Burton's Notice of Motion of 3 December 2020, an order for costs ought be made against the Prosecutor.

Goodman’s submissions on the Amended Summons

In addition to adopting the submissions made by Mr Ireland, Mr Howard next turned to the proposition that no charge known to law was proposed in the Amended Summons. Mr Howard submitted that there had been a failure to plead the elements of “implement or maintain” - this being a failure in this charge to plead the necessary operative elements of Condition E25. This, he submitted, was a fatal pleading defect (Transcript 10 December 2020, page 32, lines 14 to 17).
Mr Howard advanced a second reason why he said that what was proposed in the proposed Amended Summons did not constitute a charge known to law could be discerned from a detailed consideration of the language used in cl 6.1.3(d)(ii).
To enable an understanding of the nature of what was advanced in this regard by Mr Howard, it is appropriate first to repeat the terms of cl 6.1.3(d)(ii) and then to quote the entirety of the comparatively short element of the transcript where Mr Howard explained the basis for this submission.
First, cl 6.1.3(d)(ii) is in the following terms:

6.1.3   General Recommendations
(a)   ...
(b)   …
(c)   ….
(d)   The approach should be implemented completely to ensure that the desired degree of soil and water management is achieved. To be effective, it should address control/mitigation of pollution of suspended solids through reduction of soil erosion and minimisation of sediment pollution using:
(i)   …; and
(ii)   system controls that reduce the quantity of suspended solids reaching receiving waters, such as sediment retention basins, sediment traps and constructed wetlands.

Mr Howard then described the structural context of the above clause within Chapter 6 of the Blue Book. He said (Transcript 10 December 2020, page 33, lines 3 to 15):

It’s the chapter styled “Sediment and Waste Control”. There you’ll see it set out. At 6.1 you have an introduction which comprises background, pollutants and general recommendations. The particular part of the introductory section styled, “General Recommendations” is 6.1.3. That’s exactly where we are. The Prosecutor has decided to base a charge that needs to plead contravention of requirements of the Blue Book on a clause in an introductory section of chapter 6 dealing with general recommendations.
Before I leave the contents, what your Honour will see of course, is that after 6.1 of chapter 6 which has the introduction sections, you then have other sections. 6.2 deals with waste control and 6.3 deals with sediment control, 6.4 deals with constructed wetlands.

Mr Howard then adverted to a question which I had earlier addressed to Mr Ireland seeking to understand the meaning of the words “the approach” contained in cl 6.1.3(d)(ii) (my exchange with Mr Ireland on this point appears in the transcript at page 29, line 15 to page 30, line 1).
This question leads into the submission which Mr Howard made concerning the lack of precision in cl 6.1.3(d)(ii) and the resulting conclusion to be drawn, as I understood his submission, that a proper reading of the clause rendered it impossible to conclude that the charge as proposed to be framed could be one known to law. Mr Howard said (Transcript 10 December 2020, page 33, lines 17 to 39):

If I can now take your Honour back to p 323, your Honour’s question to Mr Ireland in which your Honour asked, “What is ‘the approach’?” It was a really good question with respect, it isn’t clear. It’s absolutely unclear what this means. They’re the first two words and it’s an inauspicious start for a Prosecutor seeking to rely on this to plead a requirement as it must.
If you look then at, obviously, the particular subclause is 6.1.3(d)(ii), in order to understand that, as is clearly recognised by Mr Ireland in his address, one doesn’t just look at some of the words in (ii), one looks at the chapeau and then continues down to (ii) skipping over (i). The more one looks at this, particularly the chapeau, the more one can see, there’s no requirement. It’s not capable of being construed as imposing a requirement.
If I could just amplify that by going to the words. “The approach”, so it’s a general recommendation referring to an unidentified approach, presumable some broad approach, and it “should be implemented completely”, whatever that means, “to ensure that the desired degree”, whatever that means, “of soil and water management”, whatever that might precisely mean, “is achieved”. To be effective it should address control and mitigation of pollution of suspended solids through the reduction of soil erosion and minimisation of sediment pollution using system controls that reduce the quantity of suspended solids reaching receding waters such as sediment retention basins, sediment traps and constructed wetlands.

This lack of precision of language, Mr Howard submitted, should be contrasted with an earlier (and now abandoned) form of particularisation in support of an earlier version of a charge in these proceedings. Mr Howard drew attention to the fact that, by way of example, some elements of the Blue Book were capable of leading to a conclusion of mathematical precision concerning a particular requirement necessary for compliance. In this regard, he drew attention to an element of cl 6.3.4(i) which could be used to derive a minimum volumetric requirement for a sediment retention basin required in particular circumstances.
He submitted that this was to be contrasted with the complete imprecision of the language used in cl 6.1.3(d)(ii) and that that imprecision of language could not provide a proper basis for a charge which would be known to the law.
He submitted, however, if I was to conclude that the language of cl 6.1.3(d)(ii) was capable of being regarded as imposing requirements, then it did not impose a single requirement but imposed multiple ones. This, he said, reinforced the submission made by Mr Ireland concerning the patent duplicity of the charge as now proposed.
Mr Howard then turned to address the proposition that the now proposed charge constituted a new charge not falling within the scope of that which had been advanced in the original Summons. On this basis, Mr Howard supported the submission made by Mr Ireland that the now proposed charge was to be regarded as a fresh charge laid, impermissibly, out of time.
In this context, Mr Howard took me to Mr McLeod's supplementary report of 16 January 2019 (commencing at folio 237 of Exhibit A). He particularly took me to paragraphs 23 and 24 (on folio 248) which, he submitted, made it clear that, although referring to a different clause in the Blue Book compared to that pleaded in the Manner of Breach element in the proposed Amended Summons, individual catchments were not appropriate bases for assessment but that the assessment in the provision needed to be applied across the totality of the site. Mr Howard then took me to Mr McLeod's third report (dated 25 September 2020) where, at folio 290, Mr McLeod records that he:

… instructed one of my staff to determine the amount of disturbed ground at the Oakdale South site (i.e. land that appears in the aerial image to have been exposed and disturbed as a result of earthworks) with in each of the five catchments within the site.

Mr Howard then had me turn to folio 294 where there were diagrammatically represented a number of catchments within the site. I noted, in this context, that the catchments identified on folio 294 do not appear, as best one can understand any interrelationship between that which is depicted on that folio and the schedule at Annexure A to this decision, to have a precise coincidence with those in Annexure A. I drew to Mr Howard's attention this lack of coincidence between the catchment maps in the supplementary report and those in Annexure A (Transcript, page 36, lines 39 to 43). Mr Howard indicated that this was not, in his submission, a significant defect in itself, but was representative of the wide range of defects with which this proposed Amended Summons was replete.
However, the effect of the submissions from Mr Howard on this overall point, as I understood it, was that the identification of catchments in this fashion only arose in September 2020, significantly after the filing of the original Summonses against Burton and Goodman. This belated catchment identification, as I understood this submission, clearly demonstrated that Mr McLeod's September 2020 third report provided new, fresh evidence resulting from his instruction to his staff and made it clear that any charge based on this new evidence had to constitute a new (and therefore impermissible) charge.
Finally, Mr Howard took me to paragraph 20 of the written submissions filed on behalf of Goodman on 28 October 2020. Although these submissions had been made with respect to an earlier (and now abandoned) iteration by the Prosecutor of that which was alleged against Goodman, Mr Howard suggested that the remarks of Gaudron and McHugh JJ in S v R (1989) 168 CLR 266; [1989] HCA 66 (S v R), at 284, remained equally valid in the context of that with which I was now required to consider. The relevant passage from the decision of their Honours in this context was [citations omitted]:

The rule against duplicitous counts in an indictment originated as early as the seventeenth century. It may be, as suggested by Salhany in "Duplicity - Is the Rule Still Necessary?", that the rule grew out of the strict formalities associated with criminal pleadings at a time when the difference between misdemeanour and felony was the difference between life and death. However, the rule against duplicitous counts has, for a very long time, rested on other considerations. One important consideration is the orderly administration of criminal justice. There are a number of aspects to this consideration: a court must know what charge it is entertaining in order to ensure that evidence is properly admitted, and in order to instruct the jury properly as to the law to be applied; in the event of conviction, a court must know the offence for which the Defendant is to be punished; and the record must show of what offence a person has been acquitted or convicted in order for that person to avail himself or herself, if the need should arise, of a plea of autrefois acquit or autrefois convict.
The rule against duplicitous counts has also long rested upon a basic consideration of fairness, namely, that an accused should know what case he or she has to meet. See, for example, R. v. Robe where it was said "this is so general a charge, that it is impossible any man can prepare to defend himself on this prosecution ... ". Of course, the degree of unfairness or prejudice involved will vary from case to case, and it may be, as suggested by Professor Glanville Williams in "The Count System and the Duplicity Rule", (1966) Criminal Law Review 255, at p 264, that on occasions the uncertainty is not "such as to disable the Defendant from meeting the charge".

In the context of the above passage, Mr Howard submitted that, having regard to a proper analysis of the language of cl 6.1.3(d)(ii), it is impossible to know any specific charge levelled at Goodman in these proceedings (this proposition, by necessary inference, is also to apply to Burton). It is, as Mr Howard specifically said, “so general a charge that it is impossible for the Defendant to prepare itself to defend itself on that prosecution” (Transcript 10 December 2020, page 37, lines 35 to 37).
Mr Howard concluded his submissions by saying (Transcript 10 December 2020, page 37, lines 39 to 48):

We are long beyond the point now of the institution off the proceedings, particularisation of the original Summons, we are beyond the point where your Honour found the Summons to be duplicitous in May, we are beyond the amendments. We’re really at the point now where it is too late for the Prosecutor to say this can be cured by some further particulars. Of course it can’t be in any event because it’s a charge not known to the law. Your Honour, the ultimate reason why your Honour should find that this Summons should not be substituted on the ground of duplicity is that it’s so uncertain that the Defendant, indeed the Defendants, obviously by reasoning cannot know what the allegation is they will have to defend.

The Prosecutor’s reply submissions

The reply submissions on behalf of the Prosecutor commenced by addressing the proposition advanced for Goodman and Burton that the proposed Amended Summons constituted a fresh charge because there had been no reference to Catchment 1 in that which had originally been charged.
In this respect, the Prosecutor referred to the diagram in the schedule to the proposed Amended Summons (reproduced, as earlier noted, as Annexure A to this decision). Catchment 1 was entirely within the outer boundary of the site and that the geographic scope of the charge as originally laid applied to the whole property. This was clear, it was submitted, from the diagram annexed to the Prosecutor’s Statement of Facts filed in May 2019. As a consequence, as Catchment 1 is completely within the boundaries of the property, it is irrelevant as to how it is labelled (by being labelled Catchment 1) and thus must fall within the scope of the original charge. Catchment 1, no matter how labelled, has always been a subset of the property which is the subject of the charge and thus subject to compliance with Condition E25.
With respect to the proposition that there was a distinction between the language of Condition E25 and the description of a failure to satisfy that condition, attention was drawn to what was described as the actual charge, being that which was set out in the final three lines of the charge description, namely:

… in carrying out development pursuant to a development consent granted under section 89E of the Act, the Defendant did not comply with a condition to which the project approval was subject, contrary to section 76A of the Act.

The particularisation, relevantly, identified Condition E25 as being that with which there had not been compliance and that the Manner of Breach particularised was a failure to satisfy. The Prosecutor submitted that there was no difference arising from the use of these words, putting (Transcript 10 December 2020, page 40, lines 29 to 41):

There is no relevant distinction between the language of did not comply and fail to satisfy. And indeed the Manner of Breach in one sense ought to be more specific than just the condition. We’ve identified the condition and the charge says didn’t comply with the condition. Then we go and particularise how you didn’t comply with the condition, be more precise, did not satisfy this particular clause. There is simply no merit in the proposition that they are not related to one another or that in some way we are pleading something not known to the law.
To say that the Defendants have failed to satisfy the condition is a particular way of saying that you have not complied with the condition and just as a matter of ordinary English language, failed to satisfy is substantively within or very similar to, did not comply.

The Prosecutor submitted that there was no vice in the use of the word “should” in cl 6.1.3(d)(ii) as, properly constructed, it should be regarded as a command (that is, imposing a mandatory obligation).
At this point, I raised with the Prosecutor a concern relating to the wording of the now proposed charge in circumstances where cl 6.1.3(d)(ii) uses the language of aspiration, not of definition. The Prosecutor proposed, as I understood his submissions, on page 42 of the transcript, that cl 6.1.3(d)(ii) needed to be read in the context of broader elements of the Blue Book. Specifically, with respect to the context of how the words “the approach” are to be understood, the Prosecutor submitted (Transcript 10 December 2020, page 42, lines 40 to 46):

So properly construed the requirement is in that second sentence, (a) the approach, and now is a good time to address that conundrum, (2) says the approach to the input should be implemented. We submit, in context, particularly para (a) at the top of the page where it refers to erosion and sediment control at land development sites, we say that (d) must be construed as meaning the approach taken to control the erosion and sediment should be implemented completely.

The Prosecutor submitted that this would establish the necessary evidentiary burden for the Prosecutor to discharge at trial, describing this in the following terms (Transcript 10 December 2020, page 43, lines 1 to 11):

At worst for us, we would have to show that whatever was done, if anything, did not reduce the suspended solids reaching receding waters. If there was some reduction then we would have to go to other provisions of the Blue Book and to evidence to show that there was a definition of how much it was to be reduced and they didn’t meet that standard, and maybe it’s there, the Defendants are entitled to point to it if the charge proceeds. However, if we can prove that there was no reduction at all, or to perhaps more precisely state the requirement, that no systems controls that did reducing, or calculated to reduce, were put in place then the charge would survive, or the conviction would be obtained, all other elements being satisfied of course.

As a consequence, the Prosecutor put that this was not a new charge now proposed against each of the Defendants but was a narrowing of that which had previously sought to be encompassed and that this narrowing was effected in a permissible fashion.
At this point in the Prosecutor's submissions in reply, I raised a number of concerns that I had as to how I could read and understand the diagram in Annexure A, particularly as to how the boundaries of that which was marked as Catchment 1 interacted with the large object identified as a sediment basin in the generally northern corner of that catchment. That discussion is recorded in the transcript between page 43, line 39 and page 46, line 2. It is unnecessary to address any of this material in detail, given that which followed immediately from this passage. What then occurred is recorded in the transcript at page 45, line 49 to page 46, line 8. This passage is in the following terms:

The second point is there was no sediment basin. The diagram to that extent is apt to confuse but not in a way that makes the charge defective. There are
many drawings kicking around this brief, any one of which might have been chosen for annexure. This drawing happened to have proposed sediment basins on it but this is no indication that it was actually there.
HIS HONOUR: So you’re saying to me I should read it as if it’s a metaphysical sediment basin?
SINGLETON: Yes or just a proposed planned one.

The Prosecutor noted that, although there was a degree of imprecision in what was depicted in Annexure A, the Prosecutor accepted, if leave was given to rely on the Amended Summons, that both Goodman and Burton could, thereafter, make a proper request for particulars - whether in this regard or generally. The Prosecutor submitted that there was no prejudice in being required to ask for a more precise delineation of Catchment 1 (Transcript 10 December 2020, page 47, lines 2 and 3).
With respect to the complaint on behalf of the Defendants as to duplicity, it is appropriate to reproduce a short extract from the transcript of 10 December 2020 (page 47, lines 10 to 27) as explaining the Prosecutor’s response at a general level of principle. The passage is in the following terms:

… On its true construction cl 6.1.3(d)(2) has one requirement. It is a requirement to use system controls that reduce the quantity of suspended solids reaching receding waters or to truncate it, to use system controls of that kind. That’s the requirement, it is a singular requirement and we say it’s breached in respect of a singular location in the nature of things. The location ought to be a catchment area and we’ve nominated one.
There are many ways in which a defendant or a developer could satisfy this single requirement but that doesn’t make it a multi-faceted requirement, it makes it perhaps easier of satisfaction. Certainly there’s a flexibility in the way it can be satisfied and it lists three examples, basins, traps and wetlands. They are not the only ones as the words “such as” indicate. But on its true construction this clause does not give rise to multiple requirements, it doesn’t say you must have retention basins and you must have sediment basins and you must have wetlands and you must have other unspecified things adopted by the words “such as”. This is not a clause that says you must do several things, it’s a clause that says there are several ways to achieve the one objective. Our case as charged is a crime of omission.

The Prosecutor further submitted that, had the Prosecutor sought to plead failures to construct each of the elements in cl 6.1.3(d)(ii) as separate charges, the Defendants would then have been entitled to plead double jeopardy because there was no requirement in the clause that all three types of construction needed to be implemented. The fact that this risk would arise from multiple charges demonstrated, the Prosecutor submitted, that a single charge could not be duplicitous. In this regard, the Prosecutor submitted that there was an important distinction between what was here involved when compared to Kiangatha - it being, in Kiangatha, that there were multiple acts in that charge which could not be regarded as being part of a single course of conduct. In this instance, that which was here alleged was an act of complete omission rather than one of commission.
In a following exchange with me concerning matters of fact and degree arising from elements of cl 6.1.3(d)(ii), the Prosecutor submitted that that was, relevantly, a matter for evidence should the proposed Amended Summons proceed to trial. I accept that proposition and, therefore, it is not necessary to address this matter further in this decision.
The Prosecutor then took me to paragraph 42(d) of the Prosecutor's Statement of Facts, this being in the following terms:

d failed to implement and maintain sediment controls that were adequate for the size of the Site and the contributing catchments, overly relying on sediment fences in areas where there should have been sediment basins, inconsistent with ss 6.1.3(d)(ii); 6.3.2(b) and (d); and 6.3.7(a) and (e) of the Blue Book;

With respect to this element of the Statement of Facts, the Prosecutor submitted (Transcript 10 December 2020, page 49, lines 34 to 39):

There your Honour will see that it is alleged that the defendants failed to implement and maintain sediment controls that were adequate for the size of the site and the contributing catchments. To the extent that it might be said against us that the whole concept of catchments is new, we say is not, and we have no just picked one of the catchments.

The Prosecutor then addressed the proposition advanced on behalf of the Defendants concerning latent duplicity saying (Transcript 10 December 2020, page 49, lines 43 to 50):

SINGLETON: In respect of the proposition that we have introduced latent duplicity because we have averred to be compliant with a clause in the Blue Book that has the words ‘such as’. That in substance picks up the point or is at least rebutted by the point previously made that on it’s true construction it does not impose multiple requirements, it imposes only one requirement that could be satisfied in multiple different ways and the Prosecutor must show that none of them were done. The latent and patent duplicity alleged is in fact the same and it is in fact not duplicity at all.

The Prosecutor’s submissions in reply concluded by responding to the submission advanced by Mr Howard that the third report from Mr McLeod provided support for the proposition that that which was now contained in the proposed Amended Summons constituted a new charge. The Prosecutor rejected the proposition that such a conclusion could be drawn from the fact that new evidence had been filed or that further new evidence might be needed to be filed.

Consideration

Introduction

Before proceeding to address each of the separate bases upon which Goodman and Burton propose that leave should not be granted to permit the Prosecutor to rely on the proposed Amended Summons in the now Amended Notice of Motion (the Notice of Motion being originally filed on 22 June 2020), it is appropriate to set out, again, both the terms of the particularised Manner of Breach set out in that proposed Amended Summons and the terms of the provision of the Blue Book, cl 6.1.3(d)(ii), that contains the detailed textual basis providing the foundation upon which the Prosecutor now relies to establish the breach.
The Manner of Breach is proposed to be defined in the following terms:

(e) Manner of breach
The Defendant failed in respect of the catchment area labelled “1” in the diagram in the Schedule hereto to satisfy the requirement imposed by clause 6.1.3 (d) (ii) of Managing Urban Stormwater: Soils and Construction [Landcom, 4^th ed., March 2004] (‘the Blue Book’).

The terms of cl 6.1.3(d)(ii) of the Blue Book are:

6.1.3   General Recommendations
(a)   ...
(b)   …
(c)   ….
(d)   The approach should be implemented completely to ensure that the desired degree of soil and water management is achieved. To be effective, it should address control/mitigation of pollution of suspended solids through reduction of soil erosion and minimisation of sediment pollution using:
(i)   …; and
(ii)   system controls that reduce the quantity of suspended solids reaching receiving waters, such as sediment retention basins, sediment traps and constructed wetlands.

Finally, for introductory purposes, it is appropriate to note that there are two relevant plans requiring comparative analysis for the purposes of this decision. The first of them is that which is designated “Schedule 1” in the “Manner of Breach” particularisation set out above. That diagram, as earlier noted, is reproduced as Annexure A to this decision. The second relevant diagram is that which is reproduced as Annexure B to this decision. It is a diagram incorporated in the Prosecutor’s Statement of Facts filed on 17 May 2019 in support of the Summons as originally filed, being the Summons for which leave is now sought to be substituted by the proposed Amended Summons in the now Amended Notice of Motion of 22 June 2020.

A charge not known to law

For the purposes of this consideration, I had earlier indicated ton the Prosecutor I would accept, I start with the assumption that the use of the word “should” is not, in its context, hortatory but is one imposing obligations in each instance where it is used in cl 6.1.3(d)(ii).
In the submissions made by Mr Ireland and Mr Howard on this point, they drew attention to the fact that, unlike the originally proposed charge, the language now used did not complain of a failure to implement and maintain (being the language used in Condition E25) but now sought to complain of a failure to satisfy the terms of cl 6.1.3(d)(ii) of the Blue Book.
As I earlier noted in my summary of Mr Ireland's submissions, in this regard, he relied upon what had been said by Gaudron and Gummow JJ at page 91 in Walsh v Tattersall.
Although that which was being dealt with by their Honours concerned the necessity in a charge to adopt language precisely reflective of a statutory provision, I am satisfied that that principle is also to be applied when analysing whether a proposed charge alleging a breach of development consent accurately reflects the terms of the obligation imposed by the condition alleged to have been breached.
The defects which gave rise to my May 2020 findings of duplicity did not arise because of any defect by failure to describe the manner of the breach then pleaded in a fashion reflective of the language of Condition E25.
However, that is not the position with respect to the language now sought to be relied upon in the “Manner of Breach” particularisation in the proposed Amended Summons. That which is now sought to be relied upon is not appropriately reflective of the language of Condition E25 and does not plead a breach of the requirements of the condition.
It is not appropriate to permit the effective failure to use language appropriately reflective of the obligation sought to be imposed by Condition E25. The failure to use such reflective language does render, in the fashion addressed by their Honours in Walsh v Tattersall, this proposed charge one not known to law.

Patent duplicity

The charge is patently duplicitous for the reasons submitted on behalf of Burton and Goodman. The concluding portion of cl 6.1.3(d)(ii) (making the assumption that the clause in fact mandates anything for the purposes of this consideration and that which follows concerning latent duplicity) purports to mandate compliance with respect to three separate and distinct types of structure by using the words “sediment retention basins, sediment traps and constructed wetlands”.
Indeed, for the reasons explained by Mr Ireland, the use of the term “sediment trap”, within that list itself, lacks precision as the definition of that term in the Blue Book to which I was taken makes it clear that it, in itself, encompasses a range of potential structures.
For this reason, the charge for which the Prosecutor now seeks leave to rely upon is patently defective. This defect in itself warrants the refusal of leave, the denial of which necessarily requires the dismissal of the proceedings.

Latent duplicity

That the charge for which leave to rely upon is now sought is latently duplicitous can also be demonstrated comparatively briefly.
Latent duplicity, as submitted by Mr Ireland, arises from the use of the words “such as” in cl 6.1.3(d)(ii). This demonstrates that the three nominated categories of structure which follow from those words are merely exemplars of a broader but unspecified range of potential structures to be found elsewhere in the Blue Book - ones the construction of which would satisfy what would be, on the Prosecutor's case, the mandated outcomes said to arise from the terms of the clause. This lack of precision caused by the non-exhaustive but unspecifiedly broad nature of the obligation said, again on the Prosecutor's case, to arise from cl 6.1.3(d)(ii) renders the charge latently defective.
This defect, also in itself, warrants the refusal of leave, the denial of which necessarily requires the dismissal of the proceedings.

This is a fresh charge

One of the critical elements required to be particularised in a sufficient fashion to enable a Defendant to understand the nature of the charge alleged is the identification of where the alleged act charged did, or (in the case of an omission as is here alleged against Goodman and Burton) did not, take place. The complaint made with respect to this element of the Manner of Breach in the proposed Amended Summons is that the geographic location now sought to be identified by reference to Catchment 1 on Annexure A constitutes identification of the location of the offending conduct in a fashion unrelated to any potentially relevant matter pleaded with respect to the charge against each of the Defendants that had been found to be defective in my May 2020 decision.
Although, as earlier discussed, issues concerning the accuracy of that depicted in Annexure A arose during the course of the current hearing - leading to the explanation from the Prosecutor that the sedimentation basin identified on the plan as relating to Catchment 1 did not, in fact, exist, and was thus merely a depiction of a proposed sedimentation basin. As a consequence, as I understood this element of the Prosecutor’s submission, this meant that where the boundary of Catchment 1 lay with respect to that marked area was a distraction, rather than a critical element of the proposed charge.
As it does not impact on my finding on the present point, I set aside that imprecision for the purposes of this consideration.
The complaint pressed on behalf of Burton and Goodman in this regard is that the now proposed geographic identifier (Catchment 1) was not an identifier arising out of anything pleaded by the Prosecutor with respect to the original defective charge against each of the Defendants.
This was clear, it was submitted for both Defendants, because no such geographic identifier existed prior to the instruction by Mr McLeod that the various catchments within the site be ascertained - with that instruction only being given for the purposes of preparing Mr McLeod's third report - a document dated September 2020. Nothing of such an identifying nature for this fundamental element of the offending conduct had been pressed previously by the Prosecutor.
The Prosecutor’s response to this, as I understood the relevant portion of the reply submissions, was twofold:

First, the offending conduct had always been identified as a failure to satisfy Condition E25, a condition applicable to the whole of the site and that identification of Catchment 1 merely narrowed the location of the alleged offending conduct with greater precision within that already encompassed by overall site area; and

Second, to the extent that it might be considered necessary for permitting the charge as now proposed to be formulated in the proposed Amended Summons for which leave is sought, Goodman and Burton were not precluded from requesting further and better particulars from the Prosecutor in this (or indeed, in any other) regard after leave to rely on the Amended Summons had been granted.

This, it is to be inferred from this submission, was an appropriate, potentially curative position arising from the fact that, if leave was granted, the proceedings still effectively remained at a comparatively preliminary stage.
The submissions advanced on behalf of Burton and Goodman are to be preferred on this point.
A close examination of the details contained in the Prosecutor's Statement of Facts filed on 17 May 2019 (and comprising 16 pages, including the precinct plan at Annexure B) reveals that it contains no express reference to separately identified catchments within the site. It contains no material which would enable, by necessary implication, sufficient information that would permit the identification of Catchment 1 as a discrete geographic element of the site. Indeed, to the extent that there appears to be some coincidence (but not what would appear to be complete coincidence) between the relevant identified sediment basin in each plan, the identifiers relevant to this sediment basin in Annexure B appear to be:

It is identified as “Basin C”;

It is immediately adjacent to an area identified as the “Amenity Precinct”; and

It falls within Stage 2 of the development.

Stage 2 encompasses, it would appear from Annexure A, all of what is now described as Catchment 1 and most (but not all) of Catchment 2. Importantly, nowhere on Annexure B does the word “catchment” appear.
I earlier reproduced, in my summary of the Prosecutor’s reply submissions, paragraph 40(d) of the Prosecutor's Statement of Facts. That paragraph is the only element of the Prosecutor's Statement of Facts that uses the words “catchment” or “catchments”. It does so in an entirely non-specific sense, not relating to any element or feature depicted on Annexure B.
As a consequence, there is nothing in the Prosecutor's Statement of Facts (whether from Annexure B or otherwise) that would permit either Goodman or Burton to discern the geographic location of the Prosecutor’s now proposed to be pleaded offending conduct. The Defendants would certainly not be able to do so by having regard to any element arising out of matters pressed by the Prosecutor in the terms of the original Summons or the Statement of Facts in support of it.
This means that there is no “where” element from the case originally commenced by the Prosecutor against either Goodman or Burton that could be said to provide any proper or sufficient geographic foundation for that which is now contained in the proposed Amended Summons, as supported by the incorporation of Annexure A, in the “Manner of Breach” for which leave is now sought.
For reasons discussed by the High Court in Walsh v Tattersall and S v R, a defendant is entitled to know with a sufficient degree of precision the “where” of the “what, when, where and how” of the ingredients necessary to provide a proper foundation for a charge.
In the present instance, that identification now sought to be relied upon as present in Annexure A (and entirely absent in Annexure B) only came into existence as an identifying concept able to be known to the Defendants in any fashion as a consequence of Mr McLeod's third report of September 2020. That location‑identifying element constitutes a fundamental element of the charge for which leave is sought in the proposed Amended Summons and is a critical element of information brought into being (in the sense of being specified in a relevant fashion) after the expiry of the relevant limitation period.
The conclusion following from this is that the charge for which leave is now sought in the proposed Amended Summons does not constitute some appropriate and legally acceptable refinement of the earlier charge found to be defective but, correctly understood, constitutes a fresh charge laid out of time in circumstances where no sufficient information of a relevant identifying nature had been made available by the Prosecutor to the Defendants prior to the expiry of the statutory time limit.
The consequence which therefore necessarily follows is that this provides a further basis rendering it impermissible to grant the Prosecutor leave to rely upon the proposed Amended Summons.

The charge is impermissibly uncertain

The basis upon which this complaint is levelled by Mr Ireland is one which effectively (and separately) rolls up the propositions advanced in support of the complaints of patent and latent duplicity coupled with the matters addressed above where I explain why I am satisfied that the descriptive bases in Annexures A and B are so significantly different that that which is said to arise from Annexure A constitutes a fresh charge for the reasons explained.

It is the combination of these factors considered as a composite complaint rather than as separate component parts that is said to render that which is now proposed in the Amended Summons as being impermissibly uncertain.
I am satisfied that this combination supports a conclusion separately to be drawn in the fashion proposed by Mr Ireland.
Such a conclusion is one separate from, and in addition to, each of the separate conclusions arising from my discrete analyses of the more specific complaints dealt with above. The composite conclusion that these various elements result in a charge which is impermissibly uncertain is established. This, in itself, provides a further basis as to why the Prosecutor should not be granted leave to rely on the now proposed Amended Summons.

The necessity for finality

As the result of my decision of 13 May 2020 holding that the charges against Goodman and Burton were defective, it was appropriate to permit the Prosecutor the option of seeking to rectify the position and have this opportunity to utilise the potentially available and facultative provisions of the Criminal Procedure Act to seek to rely on an amended charge to be laid against each of Goodman and Burton.
By Notices of Motion filed on 22 June 2020, the Prosecutor sought to follow this course in each matter.
As is also their right, Goodman and Burton have also sought to challenge that which was proposed by the Prosecutor in the originally proposed amendments advanced by the Prosecutor in June 2020.
Further iterations of articulating the “Manner of Breach” proposed to be relied upon by the Prosecutor have emerged during the course of this phase of the proceedings. That process culminated in the Prosecutor's Notice of Motion of 9 December 2020 seeking leave to substitute a new proposed Amended Summons sought to be relied upon as curative of the earlier found defects. On 10 December 2020, I granted leave to amend the Prosecutor's Notices of Motion of 22 June 2020, in order that the Prosecutor could now seek leave to rely upon this final iteration of a proposed Amended Summons.
As I have now determined that this proposed Amended Summons has multiple defects (with each found defect being fatal), it is necessary that I determine whether or not some further opportunity should be afforded to the Prosecutor to seek, yet again, to reformulate a charge against each of Goodman and Burton.
It is to be observed that no such further opportunity was contingently foreshadowed as being appropriate on behalf of the Prosecutor.
I am satisfied that the Prosecutor has had every reasonable opportunity to seek to articulate a charge against each of Goodman and Burton in a fashion which could be tested, as has here occurred, as to validity. The Prosecutor has not succeeded in doing so. As a consequence, I am satisfied that the appropriate outcome is to bring each of the proceedings to finality by denying leave to rely on the now proposed Amended Summons and to dismiss the proceedings in each instance.

Conclusion

I have concluded that the complaints made on behalf of Goodman and Burton concerning the charge for which the Prosecutor now seeks leave to rely upon by the substitution of the proposed Amended Summons via the vehicle of the now Amended Notice of Motion of 22 June 2020 in each proceedings are to be sustained. Each of the complaints which I have upheld individually warrant refusal of leave to rely upon the proposed Amended Summons. The necessary consequence which arises from the establishment of any one of these complaints is that the Prosecutor’s Amended Notices of Motion of 22 June 2020 must be rejected. The further necessary consequence of this is that the proceedings against each of Goodman and Burton are to be dismissed (this being the outcome sought by each of Goodman and Burton in their Notices of Motion filed on 3 December 2020).
In summary, I have found that the proposed Amended Summons is defective because:

The proposed charge as now articulated is one unknown to the law; and

The proposed charge as now articulated is patently duplicitous; and

The proposed charge as now articulated is latently duplicitous; and

The proposed charge as now articulated is to be characterised, correctly, as a fresh charge, thus being a charge impermissibly sought to be relied upon after the expiry of the relevant statutory time limit; and

The charge is impermissibly uncertain.

As these proceedings had their genesis in my decision of May 2020, holding that the original charges against each of Goodman and Burton as set out in the Summonses filed by the Prosecutor on 22 June 2018 were defective, it is to be noted that, through these present proceedings, the Prosecutor had sought to propose (and then abandoned) various iterations of a possible repleaded charge to be levelled against each of Goodman and Burton. Under those circumstances, I am satisfied that there is no proper basis upon which it could be considered appropriate to provide the Prosecutor with any further opportunity to seek to revise or amend to cure the defects I have now found to have been established by the Defendants.
In summary, I have determined that each of the five complaints levelled against the proposed Amended Summons is well‑founded. Each of these separately warrants refusal of permitting the Prosecutor being granted leave to rely on the proposed Amended Summons for Goodman or Burton. The Prosecutor has had more than ample opportunity to formulate a valid charge to be laid against each Defendant. It therefore follows that the dismissal of the proceedings against each of Goodman and Burton is appropriate.

Costs

Although the Prosecutor indicated a preparedness to have me deal with the question of costs without the necessity for further submissions or hearing, the position taken on behalf of both Goodman and Burton was that costs should be reserved. In light of there being no agreement to have me deal with the matter on the basis of that which has already transpired, I am satisfied that the outcome in each of the proceedings makes it appropriate to accede to each Defendant's request that costs be reserved.

Orders

In Matter no 87062 of 2019:

The orders of the Court are:

The Prosecutor’s Notice of Motion of 22 June 2020, as amended on 10 December 2020, is refused;

The proceedings are dismissed;

Costs are reserved; and

The exhibits are returned.

In Matter no 87038 of 2019:

The orders of the Court are:

The Prosecutor’s Notice of Motion of 22 June 2020, as amended on 10 December 2020, is refused;

The proceedings are dismissed;

Costs are reserved; and

The exhibits are returned.

**********

Annexure A

Annexure A Oakdale South Estate (1191045, pdf)

Annexure B

Annexure B Stage 1 (1700928, pdf)

Decision last updated: 16 April 2021

Medium Neutral Citation:	Secretary, Department of Planning and Environment v Goodman Property Services (Aust) Pty Ltd; Secretary, Department of Planning and Environment v Burton Contractors Pty Ltd T/as Burton Civil Engineering Contractors (No 2) [2021] NSWLEC 34
Hearing dates:	9 and 10 December 2020
Date of orders:	16 April 2021
Decision date:	16 April 2021
Jurisdiction:	Class 5
Before:	Moore J
Decision:	See orders at [152]-[153]
Catchwords:	PRACTICE AND PROCEDURE - earlier charges (identical for each Defendant) found to be defective - Prosecutor provided with the opportunity to replead the charge - Prosecutor seeks to rely on an Amended Summons against each Defendant - Defendants oppose the proposed repleaded charge - several further iterations of a repleaded charge proposed by the Prosecutor (including during the hearing) - Prosecutor seeks and is granted leave during the course of the hearing to rely on a final version of a proposed Amended Summons - Defendants attack the final version of the proposed Amended Summons on a number of discrete bases - the first complaint was that the proposed Amended Summons seeks to plead a charge not known to the law - held that the proposed Amended Summons pleads a charge not known to the law - the second complaint was that the charge in the proposed Amended Summons is patently duplicitous - held that the charge in the proposed Amended Summons is patently duplicitous - the third complaint was that the charge in the proposed Amended Summons is latently duplicitous - held that the charge in the proposed Amended Summons is latently duplicitous - the fourth complaint was that the charge in the proposed Amended Summons is a fresh charge laid after the expiry of the relevant statutory limitation period - held that the charge in the proposed Amended Summons did constitute a fresh charge sought to be laid, impermissibly, after the expiry of the relevant statutory limitation period - the fifth complaint was that the charge in the proposed Amended Summons is impermissibly uncertain - held that the charge in the proposed Amended Summons is impermissibly uncertain - each of these five defects separately warrants refusal of leave being granted to the Prosecutor to rely upon the proposed Amended Summons - not appropriate to provide the Prosecutor with any further opportunity to seek to replead - proceedings to be dismissed - costs reserved.
Legislation Cited:	Criminal Procedure Act 1986, s 21 Environmental Planning and Assessment Act 1979, ss 76A(1) and 125(1) Land and Environment Court Act 1979, s 68
Cases Cited:	Attorney General (NSW) v Built NSW Pty Ltd (2013) IR 102; [2013] NSWCCA 299 Director of Public Prosecutions (Vic) v Kypri (2011) 33 VR 157; [2011] VSCA 257 Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77 Kiangatha Holdings Pty Ltd v Water NSW [2020] NSWCCA 263 Kirk v Industrial Relations Commission (2010) 239 CLR 531; [2010] HCA 1 Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2018] NSWCCA 202 Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2020] NSWCCA 74 S v R (1989) 168 CLR 266; [1989] HCA 66 Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26
Texts Cited:	Managing Urban Stormwater: Soils and Construction, Landcom, 4th ed, March 2004
Category:	Procedural rulings
Parties:	Matter No 87062 of 2019 Secretary, Department of Planning and Environment (Prosecutor) Goodman Property Services (Aust) Pty Ltd (Defendant) Matter No 87038 of 2019 Secretary, Department of Planning and Environment (Prosecutor) Burton Contractors Pty Ltd T/as Burton Civil Engineering Contractors (Defendant)
Representation:	Counsel: Matter No 87062 of 2019 Mr P Singleton/Ms A Rose, barristers (Prosecutor) Mr T Howard SC/Mr J Johnson, barrister (Defendant) Matter No 87038 of 2019 Mr P Singleton/Ms A Rose, barristers (Prosecutor) Mr C Ireland, barrister (Defendant) Solicitors: Matter No 87062 of 2019 Secretary, Department of Planning and Environment (Prosecutor) Allens Linklaters (Defendant) Matter No 87038 of 2019 Secretary, Department of Planning and Environment (Prosecutor) Colin Biggers & Paisley (Defendant)
File Number(s):	87062 and 87038 of 2019
Publication restriction:	No