Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd

[2018] NSWLEC 114

Land and Environment Court

New South Wales

Medium Neutral Citation:	Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd [2018] NSWLEC 114
Hearing dates:	26 June 2018
Date of orders:	07 August 2018
Decision date:	07 August 2018
Jurisdiction:	Class 5
Before:	Pain J
Decision:	See [78] of judgment
Catchwords:	PROCEDURE – prosecutions – two offences of carrying out development contrary to condition of consent –continuing offences – second charge brought under amended legislation resulting in higher penalty not abuse of process – s 125A(a) and (b) of the Environmental Planning and Assessment Act 1979 are not elements of an offence under s 125(1)
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 ss 18, 19 Criminal Procedure Act 1986 ss s 247E, 247J, Environmental Planning and Assessment Act 1979 Pt 3A, ss 75D, 75J, 76A, Pt 4 Div 4, 125, 125A, 125B, 125C, 126 Environmental Planning and Assessment Amendment Bill 2014, Explanatory Note Interpretation Act 1987 s 34 Protection of the Environment Operations Act 1997 ss 115, 116, 117, 241
Cases Cited:	Canterbury-Bankstown Council v Naji [2016] NSWLEC 101 Council of the City of Sydney v Adams [2015] NSWLEC 206 Director-General, Department of Environment and Climate Change v Gleeson; Director-General, Department of Environment and Climate Change v Epacris Pty Ltd (2009) 165 LGERA 99; [2009] NSWLEC 42 Director-General, Department of Planning and Infrastructure v Glass Recovery Services Pty Ltd (2015) 207 LGERA 397; [2015] NSWLEC 49 Environment Protection Authority v Nechakoski (2002) 120 LGERA 426; [2002] NSWLEC 61 Environment Protection Authority v Terrace Earthmoving Pty Ltd (2013) 84 NSWLR 679; [2013] NSWCCA 180 Jago v District Court of New South Wales (1989) 168 CLR 23 John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508; [1987] HCA 42 Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77 Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 R v Ronen (2006) 161 A Crim R 300; [2006] NSWCCA 123 Smith v Moody [1903] 1 KB 56
Texts Cited:	Archbold, Criminal pleading, evidence and practice (43rd ed, 2017, Sweet & Maxwell) New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 22 October 2014 New South Wales Planning and Environment Prosecutions Guidelines
Category:	Procedural and other rulings
Parties:	Secretary, Department of Planning and Environment (Prosecutor)   Leda Manorstead Pty Ltd (Defendant)
Representation:	COUNSEL: T Howard SC and J Walker (Prosecutor) A Galasso SC and B Anniwell (Defendant)   SOLICITORS: Department of Planning (Prosecutor) Mills Oakley (Defendant)
File Number(s):	2017/186631, 2017/186632, 2017/186634

Judgment

Notice of motion on form of charges

1. The Defendant Leda Manorstead Pty Ltd has been charged with five offences arising from development activity at a large residential subdivision at Cobaki Lakes in northern New South Wales (the Site). The charges arise from the alleged failure of the Defendant to comply with Condition 21A of the Defendant’s approval under the now repealed Pt 3A of the Environmental Planning and Assessment Act 1979 (EPA Act) (the Project Approval). The Project Approval was issued under s 75J of the EPA Act as then in force. The Defendant has pleaded guilty to one charge (Summons 5). Another charge (Summons 3) has not been pressed by the Prosecutor.

2. The Defendant’s Amended Notice of Motion filed in court at the hearing on 26 June 2018 concerns in large part the second charge 2017/186632 (Summons 2). This charge must be understood in the context of the first charge 2017/186631 (Summons 1).

Amended Notice of Motion

3. The Defendant’s Amended Notice of Motion is set out below:

ORDERS SOUGHT

1.   An order that the summons in proceedings 2017/186632 be struck out on the ground that the conduct alleged in that summons is a component of a continuing act the subject of the summons in proceedings 2017/186631.

1A   In the alternative to Order 1, an order that proceedings 2017/186632 be permanently stayed as an abuse of process.

2   In the alternative to orders 1 and 1A, that the Court determine the questions of law identified in schedule “A” to this notice of motion.

3   If the answer to the questions of law as set out in the schedule are (a) “no” and (b) “yes” respectively, an order that at the hearing fixed for 26 November 2018 evidence going to, and the determination of, those elements is not to be adduced and addressed.

4   If the answer to the questions of law as set out in the schedule are (a) “yes” and (b) “no”, an order that the Prosecutor provide proper answers to particulars 11 and 12 in the Defendant's letter to the Prosecutor dated 23 February 2018 within 14 days.

5. An order that the Prosecutor file a further amended notice of the prosecution case pursuant to section 247E 427E of the Criminal Procedure Act 1986 (NSW) in proper form.

6. An order that the Prosecutor file an amended notice pursuant to section 247J 427J of the Criminal Procedure Act 1986 (NSW) in proper form.

7   Such further or other orders as this Court deems appropriate in the circumstances.

Schedule “A”

Question (a)

Are the matters comprising sub-sections 125A(1)(a) and (b) of the Environmental Planning and Assessment Act 1979 (the Act) elements of an offence constituted by section 125A of the Act?

Question (b):

Are the matters comprising sub-sections 125A(1)(a) and (b) of the Act elements concerning sentence for a breach of section 125(1) of the Act?

Environmental Planning and Assessment Act 1979

4. The EPA Act has had its provisions rearranged and renumbered effective from 1 March 2018. Relevant provisions of the EPA Act from 15 July 2015 to 30 July 2015 are as follows:

…

Part 4 Development Assessment

Division 1 Carrying out of development—the threefold classification

…

76A Development that needs consent

(1)   General

If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless:

(a)   such a consent has been obtained and is in force, and

(b)   the development is carried out in accordance with the consent and the instrument.

…

Part 6 Implementation and enforcement

…

Division 4 Offences

125 Offences against this Act and the regulations

(1)   Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Secretary, a council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act.

…

126 Penalties

(1)   A person guilty of an offence against this Act shall, for every such offence, be liable to the penalty expressly imposed and if no penalty is so imposed to a penalty not exceeding 10,000 penalty units and to a further daily penalty not exceeding 1,000 penalty units.

(2)   A person guilty of an offence against the regulations is, for every such offence, liable to:

(a)   the penalty (not exceeding 1,000 penalty units) expressly imposed by the regulations, or

(b)   if no such penalty is imposed, to a penalty not exceeding 1,000 penalty units.

…

5. Relevant provisions of the EPA Act from 31 July 2015 to 20 August 2015 are as follows:

Part 6 Implementation and enforcement

…

Division 4 Offences

125 Offences against this Act and the regulations [unamended]

…

125A Maximum penalties for offences against Act: Tier 1

(1)   This section applies to an offence against this Act under section 125(1) if the prosecution establishes (to the criminal standard of proof):

(a)   that the offence was committed intentionally, and

(b)   that the offence:

(i)   caused or was likely to cause significant harm to the environment, or

(ii)   caused the death of or serious injury or illness to a person.

For this section to apply, the court attendance notice or application commencing the proceedings must allege that those factors apply to the commission of the offence.

(2)   A person who is guilty of an offence to which this section applies is liable to a tier 1 maximum penalty, being a penalty not exceeding:

(a)   in the case of a corporation:

(i)   $5 million, and

(ii)   for a continuing offence—a further $50,000 for each day the offence continues, or

(b)   in the case of an individual:

(i)   $1 million, and

(ii)   for a continuing offence—a further $10,000 for each day the offence continues.

125B Maximum penalties for offences against Act: Tier 2

(1)   This section applies to an offence against this Act under section 125 (1), other than an offence to which section 125A applies or an offence for which a tier 3 maximum penalty applies.

(2)   A person who is guilty of an offence to which this section applies is liable to a tier 2 maximum penalty, being a penalty not exceeding:

(a)   in the case of a corporation:

(i)   $2 million, and

(ii)   for a continuing offence—a further $20,000 for each day the offence continues, or

(b)   in the case of an individual:

(i)   $500,000, and

(ii)   for a continuing offence—a further $5,000 for each day the offence continues.

(3)   However, this section is subject to any provision of this Act that declares a different maximum penalty for a particular offence to which this section applies.

125C Maximum penalties for offences against Act: Tier 3

(1)   This section applies to:

(a)   a certificate-related offence, or

(b)   any other offence against this Act under section 125 (1) for which a tier 3 maximum penalty is declared by this Act to apply.

(2)   A person who is guilty of an offence to which this section applies is liable to a tier 3 maximum penalty, being a penalty not exceeding:

(a)   in the case of a corporation:

(i)   $1 million, and

(ii)   for a continuing offence—a further $10,000 for each day the offence continues, or

(b)   in the case of an individual:

(i)   $250,000, and

(ii)   for a continuing offence—a further $2,500 for each day the offence continues.

(3)   In this section, a certificate-related offence is an offence under section 125 arising under any of the following provisions of this Act:

(a)   section 81A (except subsections (2) (a), (2) (b) (i), (4) (a) and (4) (b)),

(b)   section 85A (10A) and (11),

(c)   section 86 (except subsections (1) (a) (i) and (2) (a)),

(d)   section 109D,

(e)   section 109E (3) (d) and (e),

(f)   section 109F,

(g)   section 109G,

(h)   section 109H,

(i)   section 109J.

126 Additional provisions relating to penalties

(1), (2) (Repealed)

(2A) Part 8.3 of the Protection of the Environment Operations Act 1997 (Court orders in connection with offences) applies to an offence against this Act or the regulations in the same way as it applies to an offence against that Act or the regulations under that Act, but only in relation to proceedings before the Court and subject to any modifications prescribed by the regulations under this Act.

…

Explanatory note Environmental Planning and Assessment Amendment Bill 2014

6. The Prosecutor tendered the “Explanatory Note” for the Environmental Planning and Assessment Amendment Bill 2014 (EPA Amendment Bill) (Exhibit 1) extracted below:

Explanatory note

This explanatory note relates to this Bill as introduced into Parliament.

Overview of Bill

The object of this Bill is to amend the Environmental Planning and Assessment Act 1979 (the Principal Act):

(a) to increase substantially the maximum penalties for offences against the Principal Act and the regulations under the Principal Act, including the following:

(i)   a maximum penalty of $5 million in the case of a corporation or $1 million in the case of an individual and additional daily penalties for an intentional offence that caused or was likely to cause significant harm to the environment or caused the death of or serious injury or illness to a person (tier I maximum penalty),

(ii) a maximum penalty of $2 million in the case of a corporation or $0.5 million in the case of an individual and additional daily penalties for other offences against the Principal Act (except certain certificate offences and other offences to which a tier 3 maximum penalty is applied) (tier 2 maximum penalty),

(iii)   a maximum penalty of $1 million in the case of a corporation or $0.25 million in the case of an individual and additional daily penalties for certain certificate offences and other offences to which a tier 3 maximum penalty is applied (tier 3 maximum penalty),

(iv)   a maximum penalty of $110,000 for an offence against the regulations, and

(b)   to create additional offences, including for providing false or misleading information in. connection with planning matters, and

(c) to consolidate and expand the investigative powers of council and Departmental officers for the enforcement of the Principal Act and to make other provision for the enforcement of the Principal Act, including provision for cessation of utilities orders, and

(d)   to require the Secretary of the Department to establish and facilitate the online delivery of planning services and information (by means of the NSW planning portal), including to enable planning applications to be lodged and dealt with online and to facilitate public access to planning information, and

(e)   to make miscellaneous amendments, including to update references to the Director-General of the Department to the Secretary of the Department, and to clarify the obligation of directors of corporations to declare political donations in connection with planning matters.

The Bill also amends the Subordinate Legislation Act 1989 to further postpone the staged repeal of the regulations under the Principal Act.

Outline of provisions

Clause 1 sets out the name (also called the short title) of the proposed Act.

Clause 2 provides for the commencement of the proposed Act on a day or days to be appointed by proclamation (except Schedules 4 and 5 which are to commence on the date of assent).

Schedule 1 contains the amendments of the Principal Act outlined above relating to offences and penalties.

Schedule 2 contains the amendments of the Principal Act outlined above relating to enforcement powers.

Schedule 3 contains the amendments of the Principal Act outlined above relating to ePlanning.

Schedules 4, 5 and 6 contain the miscellaneous amendments of the Principal Act and other instruments outlined above.

Second reading speech Environmental Planning and Assessment Amendment Bill 2014

7. The Defendant referred to the second reading speech for the EPA Amendment Bill (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 22 October 2014 at 1644). Relevant parts are extracted below:

…

The bill provides tier 1 offences as the most serious offences, such as carrying out development without approval or contrary to existing approvals, or contravening a development control order. The offence must also have been committed intentionally and caused, or was likely to cause, significant harm to the environment or the death of or serious injury or illness to a person. If a corporation commits a tier 1 offence the maximum penalty will be $5 million. This is more than four times the current penalty for equivalent offences under the Act and is in line with penalties under State environment protection legislation, such as the New South Wales Protection of the Environment Operations Act. The maximum penalty for an individual will be $1 million.

The inclusion of the aggravating factors in tier 1 offences will act as a deterrent to serious deliberate breaches of the planning legislation, including where corporations make large financial gains by committing offences. It is appropriate to provide higher penalties for corporations to send a clear message to industry about the seriousness of committing offences under the Act. Tier 2 applies to tier 1 offences that were unintentional or did not cause, or were not likely to cause, significant harm to the environment or the death or serious injury of a person. For corporations that commit a tier 2 offence the new maximum penalty of $2 million will almost double the current penalty for equivalent offences under the current Act. The maximum penalty for an individual will be $500,000.

[Emphasis added by Defendant]

Condition 21A of Part 3A approval

8. Condition 21A of the Project Approval stated:

21A Bulk Earthworks

…

b. Bulk earthworks for the site are to be limited to a maximum exposed disturbed area (that has not been permanently vegetated) not exceeding a maximum of 5 ha at any time to reduce exposed areas, unless otherwise approved by the Director-General.

…

Crimes (Sentencing Procedure) Act 1999

9. Relevant provisions of the Crimes (Sentencing Procedure) Act 1999 (CSP Act) are as follows:

Part 2 Penalties that may be imposed

…

Division 5 Miscellaneous

18 Interpretation of provisions imposing penalties

(1)   The penalty:

(a)   specified at the end of a section of an Act (whether or not the section is divided into subsections), or

(b)   specified at the end of a subsection of a section of an Act, but not at the end of the section, or

(c)   specified at the end of a section of an Act or subsection of a section of an Act and expressed in such a way as to indicate that it applies to part only of the section or subsection,

indicates that a contravention of the section, subsection or part, respectively, is an offence against the Act, punishable on conviction by a penalty not exceeding the penalty so specified.

(2)   For the purposes of subsection (1), a penalty specified at the end of the last subsection of a section is taken not to be specified at the end of the section if a penalty is specified at the end of any previous subsection.

(3)   If:

(a)   a section of an Act, or a subsection of a section of an Act, provides that a person is guilty of an offence under specified circumstances, and

(b)   a penalty is specified at the end of the section or subsection and expressed in such a way as to indicate that it applies to the section or subsection,

a person who is guilty of such an offence is liable, on conviction, to a penalty not exceeding the penalty so specified.

…

19 Effect of alterations in penalties

(1)   If an Act or statutory rule increases the penalty for an offence, the increased penalty applies only to offences committed after the commencement of the provision of the Act or statutory rule increasing the penalty.

(2)   If an Act or statutory rule reduces the penalty for an offence, the reduced penalty extends to offences committed before the commencement of the provision of the Act or statutory rule reducing the penalty, but the reduction does not affect any penalty imposed before that commencement.

(3)   In this section, a reference to a penalty includes a reference to a penalty that is expressed to be a maximum or minimum penalty.

Protection of the Environment Operations Act 1997

10. Provisions of the Protection of the Environment Operations Act 1997 (POEO Act) referred to in my reasoning follow:

…

Chapter 5 Environment Protection offences

…

Part 5.2 Tier 1 offences

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.

…

116 Leaks, spillages and other escapes

(1)   If a person wilfully or negligently causes any substance to leak, spill or otherwise escape (whether or not from a container) 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 substance, the owner,

are each guilty of an offence.

(2)   If:

(a)   the person in possession of the substance at the time of the leak, spill or other escape, or

(b)   the owner of any container from which the substance leaked, spilled or escaped, or

(c)   the owner of the land on which the substance or any such container was located at the time of the leak, spill or other escape, or

(d)   the occupier of the land on which the substance or any such container was located at the time of the leak, spill or other escape, wilfully or negligently, in a material respect, caused or contributed to the conditions that gave rise to the commission of the offence under subsection (1), that person, owner or occupier is guilty of an offence.

…

Affidavit of Mr Brazier

11. The Defendant read the affidavit of its solicitor with the day-to-day carriage of the matter Mr Brazier sworn 8 June 2018. Copies of all correspondence referred to were annexed to Mr Brazier’s affidavit.

12. On 22 December 2017 the Prosecutor filed and served an amended notice of prosecution pursuant to s 247E of the Criminal Procedure Act 1986 (CP Act). The s 247E notice related to all five summonses. On 23 February 2018 the Defendant sent a letter to the Prosecutor regarding “[p]articulars of intention and harm under s 125A” of the EPA Act. On 23 February 2018 the Defendant sent a second letter to the Prosecutor requesting further and better particulars in relation to Summonses 1, 2 and 3.

13. On 1 March 2018 the Prosecutor sent a letter to the Defendant in response to the request for particulars. On 9 March 2018 the Prosecutor filed and served its notice of the prosecution case pursuant to s 247J of the CP Act. The s 247J notice related to all five summonses.

14. On 16 March 2018 Mr Gadiel solicitor for the Defendant sent an email to Ms McAndrew and Ms Coburn solicitors for the Prosecutor giving notice that the Defendant intended to enter a plea of guilty to the charge in Summons 5.

15. On 20 March 2018 the Prosecutor sent a letter to the Defendant in response to the s 125A issues raised by the Defendant in its first letter dated 23 February 2018.

16. On 23 April 2018 the Prosecutor sent a letter to the Defendant requesting that it formally enter a plea of guilty to Summons 5. The letter also stated that the Prosecutor had decided to withdraw Summons 3 and requested the Defendant’s agreement to the matter being relisted.

17. On 1 May 2018 Mr Brazier sent an email to the solicitors for the Prosecutor requesting that the Prosecutor file and serve amended notices under ss 247E and 247J of the CP Act following the withdrawal of Summons 3.

18. On 2 May 2018 the Defendant sent a letter to the Prosecutor in relation to the Prosecutor’s response to the request for particulars (see [13] above).

19. On 15 May 2018 the Prosecutor sent a letter to the Defendant in relation to the filing and service of the amended notices raised in Mr Brazier’s email of 1 May 2018 (above at [17]) and requesting the particulars raised in the Defendant’s letter of 2 May 2018 (above at [18]).

20. On 15 May 2018 the Defendant sent a letter to the Prosecutor in response to the matters raised by the Prosecutor in its letter of 20 March 2018 (at [15] above).

21. On 22 May 2018 the Defendant sent a letter to the Prosecutor requesting the withdrawal of Summons 2 on the basis that the conduct alleged in that summons was a component of a continuing act that was also the subject of Summons 1.

22. On 23 May 2018 the Prosecutor sent a letter to the Defendant responding to the Defendant’s letter of 22 May 2018 (above at [21]). On the same day Mr Brazier sent an email to Ms McAndrew and Ms Coburn clarifying that the Defendant proposed the withdrawal of Summons 2. On 24 May 2018 Ms Coburn sent an email to Mr Brazier clarifying that the Prosecutor did not agree to the withdrawal of Summons 2.

23. On 25 May 2018 the Defendant entered a plea of guilty to Summons 5. On the same day the Prosecutor withdrew the charges in Summons 3.

Form of Summons 1 and 2

24. In Summonses 1 and 2 the Prosecutor alleges that the Defendant committed offences against s 125(1) of the EPA Act for failing to comply with a condition to the Project Approval contrary to s 75D(2) of the EPA Act (as then in force).

25. The manner of the breach is particularised in each summons in the following terms:

The Defendant, in carrying out the development, did not comply with Condition 21 A of Schedule 2 to the Project Approval in that bulk earthworks for the site during the charge period continuously exceeded the maximum exposed disturbed area (that had not been permanently vegetated) of 5 hectares and was not otherwise approved by the Director General.

26. The alleged bulk earthworks were continuing in nature. Summons 1 alleges that the bulk earthworks in contravention of the Project Approval took place “on or from about 21 April 2014 and continuing to 30 July 2015”. Summons 2 alleges that the bulk earthworks took place “on and from 31 July 2015 and continuing to 7 March 2017”.

Prosecutor’s statement of facts

27. The Prosecutor’s statement of facts (SOF) included particulars for Summons 1 as follows (footnotes omitted):

…

Condition 21A(b) of the Project Approval

24   By letter dated 19 June 2013, the Director-General approved an exceedance of the maximum exposed disturbed area specified in Condition 21A of the Project Approval of up to 0.59 hectares in Phases 2, 4 and 6.

25   At all times between 21 April 2014 and 30 July 2015, the total exposed disturbed area of the Site exceeded 5.59 ha that had not been permanently vegetated, in particular:

a.   at 21 April 2014 the total exposed area was about 114 ha;

b.   at 25 June 2014 the total exposed area was about 142 ha;

c.   at 6 October 2014 the total exposed area was about 157 ha;

d.   at 9 April 2015 the total exposed area was about 136 ha; and

e.   at 21 July 2015 the total exposed area was at least 73 ha.

28. The SOF included particulars for Summons 2 as follows (footnotes omitted):

26   At all times between 31 July 2015 and 7 March 2017, the total exposed disturbed area of the Site exceeded 5.59 ha that had not been permanently vegetated, in particular:

a.   at 2 November 2015 the same areas were exposed as at 21 July 2015, although some rehabilitation works had commenced, affecting no more than 18 ha of the previously exposed area within the COS;

b.   at 23 November 2015 the total exposed area was at least 45 ha;

c.   at 23 Feb 2016 the same areas were exposed as at 23 November 2015;

d.   at 28 April 2016 the total exposed area was at least 42 ha;

e.   at 18 May 2016 the total exposed area was about 125 ha;

f.   at 2 August 2016 the total exposed area was at least 36 ha;

g.   at 19 September 2016 the total exposed area was at least 33 ha; and

h.   at 7 March 2017 the total exposed area was about 118 ha.

Prayers 1 and 1A – strike out of Summons 2

Defendant submissions

29. The Prosecutor does not dispute that the acts alleged in Summonses 1 and 2 are continuing offences. But for the change in the EPA Act effective from 31 July 2015 there would have been one offence for the period 21 April 2014 to 7 March 2017. There is one period of alleged conduct.

30. Council of the City of Sydney v Adams [2015] NSWLEC 206 (Adams) at [23] and Archbold, Criminal pleading, evidence and practice (43rd ed, 2017, Sweet & Maxwell) at 778 par 5-468 state that an increase in penalty will not be retrospective in the absence of express statutory language. Here the alleged offence is continuing. Once the bulk earthworks for the Site exceeded the 5 hectare limit imposed under the Project Approval a breach of Condition 21A occurred. According to the SOF this took place on 21 April 2014 and prior to the introduction of s 125A of the EPA Act (par 25 of the SOF). After that date, and until 7 March 2017, the extent to which the bulk earthworks were alleged to have taken place varied but were at all times said to exceed five hectares (pars 25-26 of the SOF). It follows that the alleged conduct that took place after 31 July 2015 was inextricably linked to all conduct that took place prior to that date.

31. The Defendant submits that where the essence of the alleged conduct pre-dated the introduction of s 125A, there is no retrospective operation of s 125A. As there is no factual disconnection between the conduct (pleaded to be continuing) in Summonses 1 and 2, there is no legal foundation for the bringing of the second summons. As it is a continuing offence it should be the subject of one charge. The Defendant’s position is consistent with the New South Wales Planning and Environment Prosecutions Guidelines which define continuing offences. Summons 2 results in the retrospective application of a different penalty to an offence already being committed. This approach is contrary to principle.

32. Where the conduct pre-dated the introduction of the new section, there is no retrospective operation of the section, there is no factual disconnection between the conduct (pleaded to be continuing) and the section, then there is no legal foundation for the bringing of the second Summons.

33. Summons 2 is an abuse of process and should be permanently stayed citing Director-General, Department of Environment and Climate Change v Gleeson; Director-General, Department of Environment and Climate Change v Epacris Pty Ltd (2009) 165 LGERA 99; [2009] NSWLEC 42 (Epacris) at [25]-[29].

34. If convicted of the offences alleged in Summonses 1 and 2 the Defendant may receive a higher penalty because two distinct counts instead of one have been brought by the Prosecutor. The second count applies a higher maximum penalty for the one continuing course of conduct. No two individual periods within the period of Summons 1 would serve to doubly penalise the Defendant, and the same can be said for Summons 2, but the two periods of Summonses 1 and 2 will.

35. The test of fairness involves a balancing of the interests of the accused and the community’s right to expect that persons charged with criminal offences are brought to trial, see Jago v District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46 per Mason CJ at 33. The Prosecutor’s decision to bring two charges cannot reasonably be said to be based on the identification of two courses of unlawful conduct by the Defendant, one more serious than the other, that must be brought to account in the interests of justice. Summons 2 is best characterised as an instrument that has been used to expose the Defendant to a higher statutory maximum penalty and to that extent, it is an instrument of unfairness. The Defendant’s concerns were advised to the Prosecutor in Mr Brazier’s letter dated 22 May 2018 (summarised above at [21]) and email dated 23 May 2018 (summarised above at [22]).

Prosecutor submissions

36. At the most fundamental level a complete answer to this complaint is that it is always for the Prosecutor, at its discretion, to select the appropriate charges. A court will only interfere if some manifest unfairness to the accused results. The Defendant has not demonstrated that the preferment of the two charges has resulted in any such unfairness. Unfairness would be occasioned to the community, whom the Prosecutor represents, if the Defendant were to be granted the relief it seeks. This would in effect result in immunity from criminal liability in respect of an alleged continuing breach of a condition of its Project Approval during the entirety of the charge period nominated in Summons 2. The Defendant is not entitled to any such immunity.

37. It was appropriate and arguably necessary for a separate offence to be charged for the period on and from 31 July 2015. That was the date on which material amendments to the EPA Act came into force which sensibly dictated a distinction in the pleading of the respective charges. For present purposes these amendments relevantly included the creation of the three-tier sentencing regime by the introduction of ss 125A-125C of the EPA Act. This materially altered the “un-tiered” penalty provision previously made by s 126(1) of the Act, which was in force up to and including 30 July 2015 (and for the entirety of the charge period in Summons 1).

38. The penalty regime under the EPA Act changed with effect from 31 July 2015 with the introduction of ss 125A and 125B inter alia. That penal legislation does not apply retrospectively in the absence of clear legislative expression that it does is a tenet of the criminal law and is also identified in s 19 of the CSP Act. Summons 2 does not result in the retrospective application of the new penalty regime.

39. An additional reason why the amendments that came into force on 31 July 2015 warranted the Prosecutor preferring the two charges in Summonses 1 and 2 is that the concluding words of s 125A expressly require the Prosecutor, if it wishes to call for a tier 1 penalty, to plead the matters of aggravation specified in subss (1)(a) and (b) in its summons charging the offence. As is clear from Summons 2 the Prosecutor calls for the imposition of a tier 1 penalty in respect of the alleged offence for the period from 31 July 2015. As required by the statute the Prosecutor has expressly pleaded in Summons 2 the threshold matters of aggravation. These matters of aggravation properly had to be pleaded in respect of the period from 31 July 2015 and conversely, could not properly have been pleaded in respect of the period prior to 31 July 2015. It would be difficult to find a better reason than this for the Prosecutor exercising its discretion to prefer separate charges for the two periods, as the Prosecutor has done by way of Summonses 1 and 2.

40. The Defendant should not be immune from exposure to the tier 1 penalty regime if the Prosecutor proves the offence charged in Summons 2 and proves the matters of aggravation specified in s 125A(1). The Defendant seems to consider that it cannot be subjected to the increased penalty that applied on and from 31 July 2015 just because the Prosecutor alleges that the Defendant first commenced to contravene Condition 21A(b) before the new penalty regime came into place.

41. Fairness to the accused and to the community will be attained and preserved by the accused facing the two charges that have been preferred. In that way the benefit of any diminution in the maximum penalty brought about by the legislative amendment in respect of conduct before the amendment came into force is afforded to the Defendant.

Finding on prayers 1 and 1A

42. It is appropriate to consider prayers 1 and 1A together as the complaint underpinning prayer 1, that Summons 2 is a component of the continuing offence the subject of Summons 1, underpins the Defendant’s alternative order sought in prayer 1A that Summons 2 be permanently stayed as an abuse of process.

43. I agree with a number of the Prosecutor’s submissions. In particular, as set out in [38] above, the effect of changes to the EPA Act effective from 31 July 2015 is that a different penalty regime exists from 31 July 2015 which encompasses the period in relation to which the Prosecutor wishes to charge the Defendant. The introduction of s 125A requires the identification of aggravating features, as the Prosecutor identified, set out in [39] above.

44. No issue of retrospective application of a new penalty regime applies as the Prosecutor submitted, set out in [39] above.

45. The circumstances in which changes to statutory charges and/or penalties can occur are myriad. The Prosecutor provided examples of three cases where prosecutors brought more than one charge to reflect material legislative amendments in the period to which charges were directed. R v Ronen (2006) 161 A Crim R 300; [2006] NSWCCA 123 at [4] concerned two charges of conspiracy to defraud the Commonwealth government of taxation revenue in the course of which changes in penalty were effected. In Environment Protection Authority v Nechakoski (2002) 120 LGERA 426; [2002] NSWLEC 61 at [2] the different charges reflected the repeal and replacement of the first section charged. In Environment Protection Authority v Terrace Earthmoving Pty Ltd (2013) 84 NSWLR 679; [2013] NSWCCA 180 at [3] the two charges reflected changes in the definition of “waste” in the POEO Act in the course of the impugned conduct. I realise that the matter raised in this case by the Defendant was not identified in those cases but they are nevertheless illustrative that different charges arise where there is a change in a statute.

46. There is no duplicity and no double punishment resulting from the two charges. The two charge periods while contiguous do not overlap. The two periods of the continuing offences are specified separately in each summons and do not overlap. There is no infringement of the principle that an increase in penalty is not retrospective unless there is clear statutory expression to that effect.

47. The Defendant complained that the particulars for Summons 2 as set out in par 26 of the SOF (above at [27]) relied on the period relevant to Summons 1 because par 26(a) refers to 21 July 2015 which is a date earlier than the commencement of the period in Summons 2. When the particulars are read as a whole the dates on which failure to comply with Condition 21A(b) is identified occur within the period specified for Summons 2. No unfairness to the Defendant arises from this matter.

48. There is no demonstrable unfairness to the Defendant in allowing Summons 2 to continue in its present form. The Prosecutor is properly responding to a change in the law giving rise to a different penalty regime. The charge happened to occur in the course of the continuing offence. That the same conduct can be subject to a different penalty regime from a certain date is a function of changes in the law and not the Prosecutor’s election to issue two summonses. The Prosecutor’s decision reflects the new penalty regime in place from 31 July 2015.

49. The broader interests of the community as represented by the Prosecutor are better served by the approach adopted in Summonses 1 and 2. These charges accurately reflect the penalty regime enacted by the New South Wales Parliament. I agree with the Prosecutor’s submission in [41] above.

50. Concerning whether to strike out a summons, in Epacris Lloyd J at [25]-[29] stated:

[25]   These powers include the power to protect the Court’s processes, which includes the power to stay criminal proceedings on the grounds of abuse of process where the processes of the Court are converted into instruments of injustice or unfairness: Walton v Gardiner (1993) 177 CLR 378 per Mason CJ, Deane and Dawson JJ at 392–393; Environmental Protection Authority v CSR Ltd (2001) 114 LGERA 217 at [51].

When should the power to stay proceedings be exercised?

[26]   The power to stay proceedings for abuse of process is discretionary and the categories of cases in which the court may stay its proceedings for abuse of process are various and not closed: R v Carroll (2002) 213 CLR 635 at 650–651; Rogers v R (1994) 181 CLR 251 at 255.

[27]   However, the power to stay is, in essence, a power to refuse jurisdiction and to interfere with prosecutorial discretion. It is therefore exercisable only in extreme and exceptional cases: Jago v District Court of New South Wales (1989) 168 CLR 23 per Mason CJ at 34 and per Gaudron J at 76.

[28]   A stay may only be granted in circumstances where there has been a misuse of the court process, and where continuation of the prosecution would be inconsistent with the recognised purposes of the administration of criminal justice: Jago v District court of NSW (1989) 168 CLR 23 per Mason CJ at 30, approving the statements of Richardson J in Moevao v Department of Labour [1980] 1 NZLR 464 at 482.

[29]   The discretion is determined by a weighing process which involves the subjective balancing of a variety of considerations. These considerations include fairness to the accused, the legitimate public interest in the disposition of charges of serious offences, the legitimate public interest in the conviction of those guilty of crime and the need to maintain public confidence in the administration of justice: Walton v Gardiner (1993) 177 CLR 378 per Mason CJ, Deane and Dawson JJ at 395–396.

51. The matters identified in Epacris in [28] have no role to play in the circumstances before me. As a result I do not consider the necessary balancing of interests to achieve fairness as referred to in [29] requires that Summons 2 be struck out.

52. No changes to Summonses 1 or 2 are required. Summons 2 should not be struck out. The orders sought in prayers 1 and 1A will not be made.

Prayer 2 – determination of questions of law

53. The Defendant asks the Court to answer two questions as set out above at [3]. At issue is the effect of s 125A(1) which came into effect on 31 July 2015.

Defendant submissions

54. The Defendant contends for question (a) to be answered “yes” and question (b) to be answered “no”. Section 125A creates an offence with reference to but distinct from s 125(1). As a matter of construction, the actus reus and mens rea elements are clear from the words of the section itself:

1. The physical element of the offence (actus reus) begins with the commission of an act or series of acts identified in s 125(1), namely conduct contrary to a direction or prohibition by the Act, the Minister, the Secretary, a council or any other person. The reference in s 125A to s 125 is, in context, merely an adoption by reference; s 125 does not operate alone in the current scheme of the Act and specifically not in the context of s 125A.

2. The mental element of the offence (mens rea) is prescribed by s 125A(1)(a). The offence must have been committed intentionally.

3. There is no additional physical element (actus reus) prescribed by s 125A(1)(b), namely that the conduct, being the s 125 acts, must have caused or were likely to cause significant harm to the environment or caused the death of or serious injury or illness to a person.

55. Critically and distinct from s 125(1), which by its operation with s 125B is a strict liability offence, s 125A creates an offence which requires proof of the accused’s state of mind beyond reasonable doubt. Mens rea is not an element of the offence against s 125 (and s 125B) and a prosecutor does not have to prove, beyond reasonable doubt, that a defendant intended to commit the offence (Canterbury-Bankstown Council v Naji [2016] NSWLEC 101 at [3] and [21]. As s 125A requires mens rea to be proven beyond reasonable doubt it is a standalone offence creating provision.

56. The offence under s 125A(1) is an aggravated offence of the “basic offence” in s 125(1). Examples of such regimes exist in the Crimes Act 1900 in relation to, for example, indecent assault and aggravated indecent assault.

Prosecutor submissions

57. The Prosecutor contends for question (a) to be answered “no” and question (b) to be answered “yes”. Considering the text in its context, s 125A does not create a separate offence to that created in s 125A(1). This is clear from the opening words of s 125A(1) and is consistent with the text and context of Pt 4 Div 4 of the EPA Act.

Finding on prayer 2

58. The issue arising for determination for the first time in the Court is the statutory construction of the amended EPA Act following the introduction of ss 125A, 125B and 125C with effect from 31 July 2015 in light of the unamended s 125(1). The focus must be on the words of the statute viewed in their context: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]-[70] (McHugh, Gummow, Kirby and Hayne JJ). As the Prosecutor submitted, the opening words of s 125A(1) state the section applies to an offence against the Act under s 125(1), suggesting an offence must have been proven to exist under s 125(1) before s 125A can arise.

59. The elements of an offence under s 125(1) require a prosecutor to prove beyond reasonable doubt that firstly, an act or matter is specified by or under the EPA Act, secondly, that act or matter is required or forbidden to be done under the EPA Act and thirdly, that a person has not done the act or matter required or done the act or matter forbidden by the EPA Act, inter alia per Director-General, Department of Planning and Infrastructure v Glass Recovery Services Pty Ltd (2015) 207 LGERA 397; [2015] NSWLEC 49 at [5]. If these elements are established, an offence is proved. The matters identified in s 125A(1) are not elements of the offence under s 125(1). They do not need to be established to prove an offence under s 125(1). This circumstance further supports the Prosecutor’s construction.

60. Extrinsic materials such as explanatory notes and second reading speeches can be reviewed, per s 34(2) of the Interpretation Act1987, as such instruments can provide relevant context for the introduction of particular amendments. Such material cannot generally provide much assistance in relation to the construction of specific words. As emphasised by the Defendant, the Second Reading Speech for the EPA Amendment Bill extracted above in [6] refers to increases in maximum penalties for offences against the Act for an intentional offence and the language of the extract does support the Defendant’s approach. Conversely, the Explanatory Note referred to by the Prosecutor refers to increasing maximum penalties substantially for offences against the EPA Act and regulations and is more reflective of the Prosecutor’s approach to construction. Neither of these documents can substitute for construing the particular words of s 125A(1).

61. Assistance can be gained from comparing and contrasting another similar statutory offence scheme where a tiered offence regimes exist. The POEO Act provides expressly for tier 1 offences in ss 115 (wilful or negligent disposal of waste), 116 (wilful or negligent escape of substances) and 117 (intentional emission of ozone depleting substances). Sections 115 and 116 are extracted above in [10]. Section 115 is described expressly as an offence at the outset. The terms of these sections expressly specify offences with the terms “...is guilty of an offence”. The terms of s 125A do not so provide.

62. The matters identified in s 125A(1) are essentially aggravating factors which are relevant to sentence. When viewed in that way this approach can be equated with s 241 of the POEO Act which cites matters to be considered in imposing penalty as matters relevant to sentence.

63. For completeness I have set out above ss 18 (interpretation of provisions imposing penalties) and 19 (effect of alterations in penalties) of the CSP Act. Section 19 supports the Prosecutor’s submissions in that an increase in penalty as occurs with Summons 2 can apply only to offences committed after the commencement of the provision increasing the penalty. Adams considered the effect of s 19(2). Section 18 has no direct application to the construction of s 125(1) and s 125A because the terms of these sections separately or in combination do not identify penalties in the manner addressed by s 18.

64. It is unnecessary to consider further the examples from the Crimes Act of “basic” offences and “aggravated” offences relied on by the Defendant as this approach has no relevance to the statutory context in the EPA Act I must consider. The approach in the amended EPA Act to matters of aggravation relevant to sentence appears unusual in a statutory criminal context. The practical matter of how such matters should proceed is immediately raised, the subject of prayer 3 in the Defendant’s notice of motion.

65. The answer to question (a), “[a]re the matters comprising sub-sections 125A(1)(a) and (b) of the Environmental Planning and Assessment Act 1979 (the Act) elements of an offence constituted by section 125A of the Act”, is “no”.

66. The answer to question (b), “[a]re the matters comprising sub-sections 125A(1)(a) and (b) of the Act elements concerning sentence for a breach of section 125(1) of the Act”, is “yes”.

67. A prosecutor seeking to rely on s 125A(1) in relation to sentencing must prove the mens rea aspects of subs (a) and matters relevant to subs (b) beyond reasonable doubt. I observe that the Court, in sentencing, considers a defendant’s state of mind at the time of commission of an offence on the basis that an offence committed intentionally or recklessly is objectively more serious than one which is not. Consideration of the matters required by s 125A(1)(a) is not greatly different in the sentencing context from this current approach.

Prayer 3 – evidence adduced at hearing

68. The Defendant seeks an order that if the Prosecutor’s construction of s 125A is accepted, as I have, that no evidence be adduced at the trial concerning aggravating factors relevant to the application of s 125A. I will make an order to that effect.

Prayer 4 – request for particulars

69. On 23 February 2018 the Defendant wrote to the Prosecutor requesting particulars in relation to Summons 2 (see [12] above). Paragraphs 11 and 12 of the Defendant’s letter were in the following terms:

11.   What particular acts, matters of [sic] things does the prosecutor say demonstrate intention by the defendant to commit the alleged offence?

12.   When does the prosecutor say that the defendant formed the requisite intention to commit the alleged offence?

70. On 1 March 2018 the Prosecutor responded to those questions as follows:

A11. This is not a proper request for particulars. This is a matter for evidence.

A12. This is not a proper request for particulars. This is a matter for evidence.

71. The Defendant submits that its request for particulars of intentional behaviour alleged by the Prosecutor contained in its letter dated 1 March 2018 needs to be answered and seeks an order to that effect. The common law requires that a defendant be told of the legal nature of the offence with which he or she is charged and also of the particular act, matter or thing alleged as the foundation of the charge see Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1 (Kirk) at [26] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). Material averments are required on the fact of an information or complaint so as to identify for the defendant the essential factual ingredients of the actual offence see Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77 (Johnson) at 486-487 (Dixon J), 501 (McTiernan J; John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508; [1987] HCA 42 at 519 (Mason CJ, Deane and Dawson JJ; Kirk at [26].

72. Where intention is an intrinsic element of a tier 1 aggravated offence a defendant is entitled to be apprised of the particular acts, matters or things relied on by a prosecutor that form the foundation of that element, particularly where a summons is silent on that point. The Prosecutor’s brief of evidence does not disclose any act or circumstance that occurred on 31 July 2015 demonstrating a change in the Defendant’s state of mind when carrying out earthworks. Without knowing who the individual alleged to have held the relevant intention was, the Defendant cannot properly respond to the allegation that it so existed or respond to common law principles concerning attribution.

73. The Prosecutor submits that the Defendant’s request is a matter for evidence not particulars. Where the Prosecutor has advised of the matters of fact on which it relies, the issue of intention is thereafter a matter for evidence.

74. This order is sought in the event I find in favour of the Defendant’s construction of s 125A. I have not. The issue does not therefore strictly arise at this stage of the proceedings. It is difficult to rule in broad terms on whether evidence of intention of a corporate entity requires a prosecutor to inform a defendant of the human agency to be relied on to establish that. The various cases referred to by both parties do not provide a clear answer with each inevitably reflecting its particular facts and circumstances. I would require further argument on this matter in order to rule finally. As the issue does not need to be finally resolved now I will not consider this issue further.

Prayers 5 and 6 notices under ss 247E and 247J Criminal Procedure Act 1986

75. Prayers 5 and 6 seek orders that amended notices under ss 247E and 247J of the CP Act be filed. Section 247E requires that a prosecutor give a defendant notice of the prosecution case by identifying and/or providing various documents on which it seeks to rely. Section 247J requires that a prosecutor give a defendant a notice containing the matters required to be included in a s 247E notice, a copy of any information or document in the prosecutor’s possession that would reasonably be regarded as relevant to the defendant’s credibility and a list identifying any affidavits or statements to be called on by the prosecutor.

76. The Defendant complains that despite the Prosecutor withdrawing Summons 3 the Prosecutor continues to rely on the purported facts underpinning that charge in the notices. These facts should be removed from the notices according to the Defendant. The Prosecutor submits that it is appropriately putting the Defendant on notice that the facts underpinning Summons 3 continue to be relevant to the factual matrix underpinning the cases in relation to Summonses 1 and 2. I accept that submission and no amendment of the notices is required on this basis.

77. A further complaint by the Defendant is that the Prosecutor states in the ss 247E and 247J notices that it relies on all or parts of various transcripts of interviews. The Prosecutor invites the Defendant to discuss which extracts of transcripts of interviews are relevant in the notices. What parts are to be relied on should be disclosed to the Defendant. The Prosecutor must clarify what parts of which transcripts it relies on regardless of any approach by the Defendant. Amendment of the notices in this regard is required.

Orders

78. The Court makes the following orders:

1. At the hearing fixed for 26 November 2018 evidence going to, and the determination of, s 125A(1) factors is not to be adduced and addressed.

2. The Prosecutor is to file a further amended notice of the prosecution case pursuant to s 247E of the Criminal Procedure Act 1986 in proper form.

3. The Prosecutor is to file an amended notice pursuant to s 247J of the Criminal Procedure Act 1986 in proper form.

4. The exhibit may be returned.

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Decision last updated: 09 August 2018