Secretary, Department of Planning and Environment v Sell and Parker Pty Ltd (No 2)

[2019] NSWLEC 73

Land and Environment Court

New South Wales

Medium Neutral Citation:	Secretary, Department of Planning and Environment v Sell & Parker Pty Ltd (No 2) [2019] NSWLEC 73
Hearing dates:	31 May 2019
Date of orders:	04 June 2019
Decision date:	04 June 2019
Jurisdiction:	Class 5
Before:	Robson J
Decision:	See orders at [53]
Catchwords:	PRACTICE AND PROCEDURE – criminal proceedings commenced alleging breach of conditions of development consent – summons duplicitous – application for leave to further amend summons – leave granted
Legislation Cited:	Criminal Procedure Act 1986 (NSW) ss 16, 20, 21 Environmental Planning and Assessment Act 1979 (NSW) ss 76A, 119J, 125, 127 Land and Environment Court Act 1979 (NSW) s 68
Cases Cited:	Australasian Meat Industry Employees Union v Sunland Enterprises Pty Ltd (1987) 36 A Crim R 418 Chaudhary v Ducret (1986) 11 FCR 163 Chief Executive, Office of Environment and Heritage v Geoffrey Phillip Manchee; Chief Executive, Office of Environment and Heritage v Bogamildi Investments Pty Ltd [2015] NSWLEC 117 Director of Public Prosecutions (Vic) v Kypri (2011) 33 VR 157; (2011) 207 A Crim R 566 Environment Protection Authority v CSR Ltd (2001) 114 LGERA 217 Environment Protection Authority v Du Pont (Australia) Pty Ltd (No 2) [2013] NSWLEC 99 Harrison v President of the Industrial Court of Queensland [2016] QCA 89 Marrickville Council v Danias [2002] NSWLEC 49 R v Manwaring [1983] 2 NSWLR 82 Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW [2007] NSWCA 128 S Kidman & Co v Lowndes (2016) 314 FLR 358 Secretary, Department of Planning and Environment v Sell & Parker Pty Ltd [2019] NSWLEC 48 Wakool Shire Council v Garrison Cattle Feeders Pty Ltd (2010) 177 LGERA 282
Category:	Procedural and other rulings
Parties:	Secretary, Department of Planning and Environment (Prosecutor) Sell & Parker Pty Ltd (Defendant)
Representation:	Counsel: A Rose (Prosecutor) T G Howard SC with J Johnson (Defendant)   Solicitors: Department of Planning and Environment (Prosecutor) Allens (Defendant)
File Number(s):	2018/00242443
Publication restriction:	Nil

Judgment

1. Before the Court is a notice of motion filed by the Secretary, Department of Planning and Environment (‘prosecutor’) on 18 April 2019 seeking leave to further amend the Amended Summons filed on 1 November 2018 in proceedings 2018/00242443. This motion was filed as a result of my decision on 12 April 2019 in Secretary, Department of Planning and Environment v Sell & Parker Pty Ltd [2019] NSWLEC 48 (‘earlier judgment’) wherein, having found that the formulation of the Amended Summons in each of proceedings 2018/00242442 (‘2017 Charge’) and 2018/00242443 (‘2016 Charge’) was duplicitous, I allowed the prosecutor the opportunity to seek leave to further amend the summonses.

2. The motion was heard on 31 May 2019. For reasons that follow, I have determined that the prosecutor should be granted leave to further amend the Amended Summons in respect of the 2016 Charge.

Background

3. I adopt and do not repeat the background facts and definitions set out in the earlier judgment and note that, although the earlier judgment and findings related to the summonses in respect of the 2016 Charge and the 2017 Charge, and that a motion for leave to further amend was filed in each proceedings, Sell & Parker (‘defendant’) agreed to the amendments sought in respect of the 2017 Charge. On 3 May 2019, Moore J granted the prosecutor leave to further amend the Amended Summons in relation to the 2017 Charge. Accordingly, it is only the motion in respect of the 2016 Charge that is presently before the Court.

4. The prosecutor seeks leave to further amend the Amended Summons in respect of the 2016 Charge pursuant to ss 16(2), 20(1)(a) and 21(1) of the Criminal Procedure Act 1986 (NSW) (‘CP Act’) and/or s 68(1) of the Land and Environment Court Act 1979 (NSW) (‘LEC Act’) by removing Schedule A in its entirety and amending the particulars to the charge so that it is clear that a breach of the annual limit is pleaded (‘Further Amended Summons’). The defendant opposes the amendment on the basis that it would result in a new charge being brought outside the prescribed statutory limitation period. The defendant also submits that the Amended Summons cannot be cured by further amendment as it discloses no offence whatsoever.

Prosecutor’s submissions

5. The prosecutor submits that it was apparent from the earlier judgment that the content of the schedules annexed to the amended summonses made the charges duplicitous, making it unclear if the prosecutor was pleading a breach of the annual limit imposed by Condition A8 or the weekly pro-rata limit.

6. To cure any defects, the prosecutor seeks to remove the schedule and amend the particulars of the charge to make it clear that it is pleading a breach of the annual limit. This includes moving the total amount of waste received by the defendant in the relevant period from the schedule to the body of the particulars.

7. The prosecutor submits that no injustice will result by permitting the amendment as: first, the amendment will not change the essential nature of the offence; secondly, the proceedings are still in their very early stages and neither party has filed any evidence (other than the prosecutor’s affidavits accompanying the original summons); thirdly, the delay and costs in making the amendment are likely to be minimal and can be accounted for at the completion of the proceedings; fourthly, no expert evidence has been filed by either party; and, finally, no trial date has been set.

Defendant’s submissions

8. The defendant cites various authorities to submit that it is well-established that an amendment to a charge cannot be permitted if the result would be to permit a new offence to be charged out of time.

9. The defendant submits that in its submissions filed 1 March 2019, the prosecutor’s position was that Condition A8 imposed different limits on the receipt of waste at the subject premises – a weekly pro-rata limit and an annual limit.

10. While the Amended Summons pleaded multiple breaches of the asserted pro-rata weekly limit, being 1730.769 tonnes, the defendant submits that the draft Further Amended Summons does not plead any breach of the asserted weekly pro-rata limit, but instead pleads a breach of the annual limit.

11. The defendant submits that properly construed, the consent did not impose a weekly limit, but a total limit in any calendar year of 90,000 tonnes. The phrase “on a weekly pro-rata basis” limits the total volume of waste which may be received where it is received under the condition during only part of a 12 month calendar year. The 90,000 tonne limit is reduced on a pro-rata basis depending on the number of weeks that waste was able to be received under the condition.

12. The defendant submits that a charge alleging a breach of an asserted pro-rata weekly limit on receipt of waste is distinct from a charge alleging a breach of an annual limit on receipt of waste. The defendant submits that this is so notwithstanding the fact that each of these alleged limits is created under the same condition, being Condition A8 of the consent. Different offences can be created within the same condition of consent, as different offences can be created within the same section of an Act: R v Manwaring [1983] 2 NSWLR 82 at 88-89 and Wakool Shire Council v Garrison Cattle Feeders Pty Ltd (2010) 177 LGERA 282 at [31]-[35], [39], [52], [57].

13. The defendant submits that there are certain circumstances in which a defect in an indictment cannot be cured. The defendant cites Chief Executive, Office of Environment and Heritage v Geoffrey Phillip Manchee; Chief Executive, Office of Environment and Heritage v Bogamildi Investments Pty Ltd [2015] NSWLEC 117 (‘Manchee’) at [62] for the proposition that a charge that discloses no offence whatsoever cannot be remedied.

14. Having regard to the particulars of the date on which evidence of the offence first came to the attention of an investigation officer, the defendant submits that the charge had to be brought no later than 20 September 2018 pursuant to s 127(5A) of the Environmental Planning and Assessment Act 1979 (NSW) (‘EPA Act’) as it was at the material time. Alternatively, even if the limitation period were to be calculated by reference to s 127(5) of the EPA Act as expiring two years after the end of the pleaded charge period, the defendant submits that the charge was required to be brought no later than 31 December 2018.

15. The defendant submits that as there was no weekly limit imposed by the consent, there was no offence of exceeding a weekly limit known to law. The defendant submits that the defect is not one to which s 16(2) of the CP Act applies and the charge cannot be cured by amendment. As such, the defendant submits that leave to amend the 2016 Charge should be refused and the charge should be struck out.

Prosecutor’s submissions in reply

16. The prosecutor submits that the proposed amendments to the 2016 Charge are identical in effect to those that the Court allowed the prosecutor to make to the 2017 Charge.

17. The prosecutor submits that it does not seek to amend the offence provision, nor does it seek to add any new information to the summons.

18. According to the prosecutor, the 2016 Charge always pleaded a breach of the annual limit imposed by Condition A8.

19. The prosecutor submits that nowhere in the primary judgment was it explicitly or implicitly stated that the Amended Summons did not plead a breach of the annual limit (in addition to discrete breaches of the weekly limit). Accordingly, it can be implied that Robson J determined it was duplicitous for pleading both an annual breach and multiple breaches of the weekly limit.

20. The prosecutor submits that the proposed amendments simply seek to remove the references to any breaches of the weekly limit so that the only charge remaining is that which was always pleaded, being a breach of the annual limit.

21. The prosecutor submits that whether the defendant received more than 1,730.769 tonnes of waste on any given week or more than 90,000 tonnes in a calendar year does not change the essential nature of the offence, even if the exact amount of waste received is an essential factual ingredient: Manchee at [73].

22. The prosecutor notes that the defendant has been apprised of the nature of the charge it faces since at least 30 November 2016, the date of the Department’s first notice to the defendant under s 119J of the EPA Act. This was well before the expiration of the limitation period for the 2016 Charge.

23. As the defendant proffered no evidence as to how the amendments will cause it injustice, the prosecutor presumes that the only prejudice it relies upon is the loss of the limitation defence which is not, of itself, a sufficient basis for refusing leave to amend: S Kidman & Co v Lowndes (2016) 314 FLR 358 (‘S Kidman & Co’) at [128].

24. The prosecutor submits that the defendant’s submission that the defects in the 2016 Charge cannot be cured by amendment pursuant to s 16(2) of the CP Act is baseless as: first, the Amended Summons clearly pleads a breach of the annual limit (even if it contains multiple breaches of the weekly limit); and, further, the defect of duplicity does not cause irredeemable unfairness to the defendant that cannot be cured given that the defendant has been on notice of the Department’s concerns regarding the alleged breaches since at least September 2016.

25. Even if the defect falls outside the scope of s 16(2) of the CP Act, the prosecutor submits that the Court can still grant leave to amend pursuant to ss 20 and 21 of the CP Act and/or s 68(1) of the LEC Act.

26. The prosecutor notes that the defendant calls upon the Court to consider the proper construction of Condition A8 on the basis that there can be no offence in the 2016 Charge because the condition does not impose a weekly limit. The prosecutor submits that it is not necessary for the Court to construe Condition A8, nor is the Court in a position to do so in the absence of further evidence and submissions. Despite this, the prosecutor submits that at the very least, the parties agree that it contains an annual limit (which is the basis of the charge that will remain if leave to amend is granted).

Consideration

27. As stated above, the prosecutor seeks leave to further amend the Amended Summons in respect of the 2016 Charge pursuant to ss 16(2), 20(1)(a) and 21(1) of the CP Act and/or s 68(1) of the LEC Act.

28. Sections 16(2) of the CP Act relevantly provides:

16 Certain defects do not affect indictment

…

(2)    No objection may be taken, or allowed, to any indictment by which criminal proceedings (including committal proceedings) in the Local Court or for any other offence that is to be dealt with summarily are commenced, or to any warrant issued for the purposes of any such proceedings, on the grounds of:

(a)   any alleged defect in it in substance or in form, or

…

29. Further, ss 20 and 21 of the CP Act relevantly state as follows:

20   Amendment of indictment

(1)   An indictment may not be amended after it is presented, except by the prosecutor:

(a)   with the leave of the court, or

(b)   with the consent of the accused.

(2) This section does not affect the powers of the court under section 21.

(3)   For the purposes of this section, an amendment of an indictment includes the substitution of an indictment.

21   Orders for amendment of indictment, separate trial and postponement of trial

(1)   If of the opinion that an indictment is defective but, having regard to the merits of the case, can be amended without injustice, the court may make such order for the amendment of the indictment as it thinks necessary to meet the circumstances of the case.

…

(6)   Any power of the court under this section is in addition to and not in derogation of any other power of the court for the same or similar purposes.

30. It should be noted that while ss 20 and 21 of the CP Act refer to an “indictment”, there is no relevant distinction for present purposes between amending pleadings on an indictment or a summons: Manchee at [70]. Further, these provisions allow the Court to overlook formal and technical objections being taken if proceedings are to be tried summarily, and to permit amendment of the summons in appropriate circumstances: Manchee at [60].

31. Section 68 of the LEC Act relevantly provides:

68   Amendments and irregularities

(1)   In any proceedings before the Court, the Court shall have power at any stage of the proceeding to order, upon such terms as to costs or otherwise as the Court thinks fit, any amendments to be made which, in the opinion of the Court, are necessary in the interests of justice.

…

32. The applicability of s 68(1) of the LEC Act to amendments in Class 5 proceedings was confirmed in Environment Protection Authority v Du Pont (Australia) Pty Ltd (No 2) [2013] NSWLEC 99 at [4] and Manchee at [78]. Further, in Manchee, at [70], Pepper J held that amendments may be made at any stage of the proceedings to both pleadings and particulars.

33. Various other authorities have considered the rationale underlying amendments to pleadings and whether the circumstances of the case warrant the exercise of the Court’s discretion to allow such amendments. In Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW [2007] NSWCA 128, at [123], Basten JA noted that “so long as a defect can be remedied by amendment, the informations are not “void”…nor are the proceedings based upon them a nullity”.

34. Amendments to particulars which would not alter the offence charged may take place after a limitation period has expired: Australasian Meat Industry Employees Union v Sunland Enterprises Pty Ltd (1987) 36 A Crim R 418 at 422. This is particularly so where the amendments clarify the charge (Director of Public Prosecutions (Vic) v Kypri (2011) 33 VR 157; (2011) 207 A Crim R 566 at [23]) and do not alter the essential elements or nature of the offence charged: Marrickville Council v Danias [2002] NSWLEC 49 at [10], Chaudhary v Ducret (1986) 11 FCR 163 at 172 and Harrison v President of the Industrial Court of Queensland [2016] QCA 89 at [152]-[160]. Such amendments to cure any defects will not be productive of injustice: S Kidman & Co at [111], [129].

35. In Manchee, at [73], Pepper J held that even though the dates when the offences were alleged to have occurred were “essential factual ingredients”, the amendment of those dates did not have the effect of charging the defendant with a different offence. Further, in Environment Protection Authority v CSR Ltd (2001) 114 LGERA 217 at [18], Pearlman J found that amending the dates in a summons did not change the essential nature of the offence.

36. Taking into account the facts (as detailed in the earlier judgment), I consider that the essential difference between the parties, and the determinative matter in the motion before me, is whether the amendment sought creates a “new charge outside the prescribed statutory limitation period”. My finding in this regard will dictate the applicability of the abovementioned authorities to this matter.

37. The defendant submits that Condition A8 imposes a single annual limit on the receipt of waste and that the Amended Summons pleaded multiple breaches of the weekly pro-rata limit, not a breach of the annual limit such that the Further Amended Summons creates a “new” charge being a breach of the annual (90,000 tonne) limit. If the defendant is correct, then the Further Amended Summons would be out of time.

38. For the reasons that follow, I do not consider that the Further Amended Summons raises a new charge. As such, the defendant’s submission that the limitation period to lay a fresh charge has expired is otiose.

39. First, in the earlier judgment I was of the view that the manner in which the schedules recording the various tonnages were in tabular form and annexed to each of the summonses caused the summonses to be duplicitous. I consider that the prosecutor by, in effect, abandoning the tabular formulation in the annexure, is changing one aspect of the particulars and does not seek to add any new material or lay a fresh charge.

40. Secondly, the particulars to the 2016 Charge (in the Amended Summons) under the heading “Manner of Breach of Development Consent” provide:

Contrary to Condition A8, the Defendant received more than 90,000 tonnes of waste (on a weekly pro-rata basis) at the Site between 26 May 2016 and 31 December 2016, as set out in Schedule A to this summons.

41. Condition A8 is set out earlier in the particulars under the heading “Development consent obtained and in force” as follows:

Development consent obtained and in force

Development consent SSD 5041 granted by the Minister for Planning dated 12 November 2015 (Development Consent) for increasing the processing capacity of the existing metal recycling facility, including reconfiguration and expansion of the facility into the adjoining site at 23-43 Tattersall Road, Kings Park (the Development).

Conditions A7 and A8 of the Development Consent provide:

A7.   The Applicant shall not receive or process on the site more than 350,000 tonnes per calendar year of waste, subject to Condition A8.

A8.   Despite Condition A7, the Applicant shall not receive or process on the site more than 90,000 tonnes per calendar year of waste (on a weekly pro-rata basis) until:

a)   the Emissions Collection System for the hammer mill has been commissioned in accordance with Condition B20 and approved by the Secretary for operation; and

b)   a Final Occupation Certificate has been issued for the Development.

42. It is clear, and I find, that Schedule A annexed to the Amended Summons, although not felicitously worded or presented, does provide for a “total” annual alleged tonnage exceedance (of “195386.751”) of waste received during the period of the 2016 Charge (26 May 2016 to 31 December 2016). That is, the total amount on the page opposite the word “Total” is “195386.751”.

42. Thirdly, although I stated at [53] in the earlier judgment that “...properly construed, the charges as pleaded relate to discrete breaches on each week Condition A8 was contravened”, this was not meant to convey that the Amended Summons only pleaded breaches of the weekly limit. To the extent that the language may be seen to be somewhat unclear, it was not meant to convey that there was no pleading of a breach of the annual limit. Nowhere in the earlier judgment do I implicitly or explicitly state that the Amended Summons did not also plead a breach of the annual limit. Indeed, it was my intention to convey that I considered that duplicity arose from the pleading which referred to both multiple breaches of the weekly limit and a breach of the annual limit (which I consider was relatively clearly raised in the Amended Summons but made somewhat unclear by the manner in which the schedule was prepared and presented). To the extent that it is necessary, I confirm that that was my view at the time, and remains my view.

43. I note that the prosecutor maintained in the earlier proceedings (see earlier judgment at [40]) that the Amended Summons, properly read, provided that the manner of the breach involved receiving more than 90,000 tonnes of waste per calendar year and the prosecutor accepted that it could have proceeded on a single charge for breaching the annual limit or on multiple charges for breaching the weekly pro-rata limit, however it chose to lay two charges for breaching the annual limit as opposed to 73 charges for breaching the weekly pro-rata limit. At [50] of the earlier judgment, I did not accept the prosecutor’s submission that it had only pleaded a breach of the annual limit imposed by Condition A8 as I found that, properly construed, the summonses also pleaded a breach of the pro-rata weekly limit during each of the weeks within the respective charge periods.

44. Accordingly, the Amended Summons could not be characterised as one that disclosed “no offence whatsoever” on a proper reading of the earlier judgment given my finding that it was duplicitous on the grounds that it pleaded both breaches of the weekly pro-rata limit and a breach of the annual limit for receiving waste.

45. Fourthly, I do not accept that injustice will result from the amendment primarily because, as submitted by the prosecutor, there is no change to the essential nature of the offence, being an offence against s 125(1) of the EPA Act for carrying out development otherwise than in accordance with the relevant consent, contrary to s 76A(1)(b) of the EPA Act, and the proceedings are still in their early stages in circumstances where neither party has filed any evidence (other than the prosecutor’s affidavits accompanying the original summons), no expert evidence has been filed by either party and no trial date has been set.

46. Fifthly, while I accept, as the defendant submits, that different offences can be created under the same condition of consent, I do not find that the Amended Summons solely comprised a charge alleging breaches of the asserted pro-rata weekly limit as distinct from a charge alleging a breach of the annual limit on receipt of waste. This is because: first, a proper reading of the charge and each of the particulars subjoined to par (1) in the Amended Summons does not, despite the somewhat ambiguous wording and presentation, necessarily abandon what I consider to be the primary charge, being a breach of the 90,000 tonne annual limit. In any event, the possible confusion caused by the table annexed to the summons (necessarily incorporated in the particulars) was the basis of my consideration leading to the finding of duplicity. Again, while I accept that there is a distinction between a charge alleging breaches of the pro-rata weekly limit on receipt of waste and a charge alleging a breach of an annual limit on receipt of waste, I do not consider that the Amended Summons, properly construed, necessarily or otherwise abandoned a charge alleging a breach of the annual limit.

47. Sixthly, as I do not find that a new offence is charged by granting leave to the prosecutor to further amend the summons in the form proposed, it follows, as noted above, that I do not accept that the time limit provided by ss 127(5) or 127(5A) of the EPA Act (as those provisions were at the material time) is relevant or requires consideration.

48. Seventhly, it follows that I do not accept the defendant’s submission that because there was no weekly limit imposed by the consent, that there was no offence exceeding a weekly time limit known to law and that the defect is not one to which s 16(2) of the CP Act applies. I find that the proposed amendments, properly understood, simply remove references to any breaches of the weekly limit so that the only charge remaining is a breach of the annual limit, a charge which was always pleaded albeit in a different form. Therefore, it is my view that the Amended Summons did plead a breach of the annual limit (notwithstanding that it also referred to and raised multiple breaches of the weekly limit).

49. In any event, I accept the prosecutor’s submission that the “defect of duplicity” does not cause irredeemable unfairness to the defendant and no injustice will be caused by allowing the amendment given that the defendant has been on notice of the prosecutor’s concerns since at least September 2016. Even if I was not of the view expressed in the previous paragraph, I would have found that I could have granted leave to the prosecutor to further amend the summons pursuant to either ss 20 or 21 of the CP Act as the summons can be amended without any injustice to the defendants to meet the circumstances of the case. Finally, although not specifically raised in chief by the prosecutor, to the extent that the defendant submits, as per [15] above, that s 16(2) of the CP Act does not apply, I consider that in addition to my findings above, including that the Amended Summons does not create a new offence, s 16(2) would have application.

50. For completeness, I note that the prosecutor also relied on s 68(1) of the LEC Act as an avenue to further amend the summons. I consider the proposed amendment to be necessary in the interests of justice as per s 68(1).

51. Although I consider it not necessary to consider the construction of Condition A8, to the extent that it may be relevant, I would have been of the view that Condition A7 and Condition A8 do primarily provide for a ceiling of 90,000 tonnes per calendar year on receipt of waste on the site. As such, I accept the prosecutor’s submission that at the very least, Condition A8 contains an annual limit which is the basis of the charge and that this basis will remain if leave to amend is granted.

Orders

53. The orders of the Court are:

1. The prosecutor is granted leave to further amend the Amended Summons filed 1 November 2018 in the form of annexure “C” to the affidavit of Alexander Charles Rollason affirmed 18 April 2019.

2. Costs are reserved.

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Decision last updated: 06 June 2019