Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd

[2018] NSWCCA 202

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2018] NSWCCA 202

Hearing dates:

16 March 2018

Date of orders:

21 September 2018

Decision date:

21 September 2018

Before:

Bathurst CJ at [1]; Fullerton J at [63]; Campbell J at [64]

Decision:

(1) Answer the questions submitted to the Court pursuant to s 5AE of the Criminal Appeal Act 1912 (NSW) as follows:

 

Question 1:   Did I err in finding that the charge in Summons 16/381473 alleging a breach of Condition 1 of the consent was a charge that it was not open to lay, because the terms of Condition 1 (by its incorporation of the Statement of Environmental Effects) provided a limitation on the capacity of the plant rather than on the actual operation of the plant to produce not in excess of 150 tonnes per day as this limitation is an obligation only found in the terms of Condition 4?

 

Answer:   No.

 

Question 2:   Did I err in finding that the charge in Summons 16/381474 was bad for duplicity, because it nominated a range of dates on which the offending conduct being a breach of Condition 4 is alleged to have occurred rather than only a single day?

 

Answer:   No.

 

Question 3:   Did I err in finding that the charge in Summons 16/381475 was bad for duplicity, because it nominated a range of dates on which the offending conduct being a breach of Condition 6 is alleged to have occurred rather than only a single day at any one time?

 

Answer:   No.

 

(2)   Remit the application to the Land and Environment Court of New South Wales to be dealt with according to law.

 (3)   Order the applicant to pay the respondent’s costs of the proceedings in this Court.

Catchwords:

ENVIRONMENT AND PLANNING – Consent – Conditions – Construction – condition required development to be carried out substantially in accordance with a statement of environmental effects – whether statement imposed a limit on the maximum daily production of a plant

  ENVIRONMENT AND PLANNING – Offences – Prosecutions – Practice and procedure – charges laid for breach of conditions imposing maximum daily limits on plant operations without specifying particular day – whether charges bad for duplicity

Legislation Cited:

Criminal Appeal Act 1912 (NSW)
Environmental Planning and Assessment Act 1979 (NSW)
Environmental Planning and Assessment Regulation 2000 (NSW)
Rivers and Foreshores Improvement Act 1948 (NSW)

Cases Cited:

Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd [2017] NSWCA 263
CSR Ltd v Environmental Protection Authority [2000] NSWCCA 373
Director of Public Prosecutions v Merriman [1973] AC 584
Director-General of Department of Land and Water Conservation v Greentree (2003) 140 A Crim R 25; [2003] NSWCCA 31
Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125; [2013] NSWCCA 204
Ex parte Polley; Re McLennan (1947) 47 SR (NSW) 391
Hakim v Waterways Authority (NSW) [2006] NSWCCA 376
Hannes v Director of Public Prosecutions (Cth) (No 2) [2006] NSWCCA 373
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
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
R v Hamzy (1994) 74 A Crim R 341
R v Moussad [1999] NSWCCA 337
S v The Queen (1989) 168 CLR 266; [1989] HCA 66
Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26
Westfield Management Ltd v Perpetual Trustee Company Ltd [2006] NSWCA 245

Category:

Principal judgment

Parties:

Snowy Monaro Regional Council (applicant)
Tropic Asphalts Pty Ltd (respondent)

Representation:

Counsel:
C R Ireland (applicant)
T Hale SC with M Fleeton (respondent)

  Solicitors:
Bradley Allen Love Lawyers (applicant)
Kemp Strang (respondent)

File Number(s):

2017/325604

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Land and Environment Court of New South Wales

Jurisdiction:

N/A

Citation:

[2017] NSWLEC 109

Date of Decision:

25 August 2017

Before:

Moore J

File Number(s):

2016/381473; 2016/381474; 2016/381475

HEADNOTE

[This headnote is not to be read as part of the judgment]

Snowy Monaro Regional Council charged Tropic Asphalts Pty Ltd with several offences against s 125(1) of the Environmental Planning and Assessment Act 1979 (NSW) for contravening s 76A(1)(b) of that Act. The contraventions related to the operation of a “temporary mobile asphalt batching plant” on a property at Springs Road, Rock Flat, New South Wales, other than in accordance with the development consent which was in force for that property. The charges were brought in the Land and Environment Court of New South Wales.

The particulars of contravention for the First Charge stated that Tropic Asphalts had “engaged in a course of conduct” by operating the plant “to a maximum daily production capacity of more than 150 tonnes” during the period from 20 January 2015 to 18 March 2015 contrary to condition 1 of the consent conditions.

The particulars of contravention for the Second Charge stated that Tropic Asphalts had “engaged in a course of conduct” by operating the plant “to produce more than 150 tonnes per day” during the period from 20 January 2015 to 18 March 2015 contrary to condition 4 of the consent conditions.

The particulars of contravention for the Third Charge stated that Tropic Asphalts had “engaged in a course of conduct” by operating the plant “so that more than 12 trucks per day were accessing and exiting its site” during the period from 20 January 2015 to 18 March 2015 contrary to condition 6 of the consent conditions.

Tropic Asphalts moved to strike out each of the charges. The primary judge struck out the First Charge on the ground that it did not allege an offence known to law and held the Second and Third Charges bad for duplicity. However, after dismissing an earlier application to amend, the primary judge granted the Council’s application for leave to further amend the Second and Third Charges. At the request of the Council, the primary judge submitted three questions to the Court of Criminal Appeal for determination.

The main issues arising out of these questions were:

1   Whether the primary judge erred in striking out the First Charge on the ground that it did not allege an offence known to law; and

2   Whether the primary judge erred in finding the Second and Third Charges bad on the ground of duplicity.

The First Charge

(i)  The primary judge did not err in striking out the First Charge on the ground that it did not allege an offence known to law. Condition 1 of the consent conditions did not impose a requirement that the plant not produce more than 150 tonnes per day: [37] (Bathurst CJ); [63] (Fullerton J); [64] (Campbell J).

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28; Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd [2017] NSWCA 263, referred to.

The Second and Third Charges

(ii)   The primary judge did not err in finding the Second or Third Charges bad on the ground of duplicity. A separate contravention of conditions 4 and 6 occurs on each day that the plant produces more than 150 tonnes or that more than 12 trucks enter or leave the site. It is duplicitous to assert that those conditions are contravened by engaging in a “course of conduct” over a period of time: [58]-[60] (Bathurst CJ); [63] (Fullerton J); [64] (Campbell J).

Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77; Hakim v Waterways Authority (NSW) [2006] NSWCCA 376; Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26, considered.

Judgment

1. BATHURST CJ: By three separate summonses brought by Snowy Monaro Regional Council (the prosecutor) in the Land and Environment Court of New South Wales, Tropic Asphalts Pty Ltd (the respondent) was charged with offences against s 125(1) of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act) by carrying out a development in contravention of s 76A(1)(b) of that Act, namely, the operation of a “temporary mobile asphalt batching plant” on a property on Springs Road, Rock Flat, New South Wales, other than in accordance with the development consent which was in force.

2. The particulars of contravention for the First Charge, so far as they are relevant, were in the following terms:

“Manner of contravention

The development was carried out otherwise than in accordance with the development consent by being carried out contrary to Condition 1 of the development consent (which provided that the development was to be carried out substantially in accordance with the approved documents/plans listed in the Schedule within Condition 1), in that the development was not carried out substantially in accordance with the Statement of Environmental Effects prepared by KHA Development Managers received on 23 December 2014 (SEE), in that during the charge period, from 20 January 2015 and continuing to 18 March 2015, the defendant engaged in a course of conduct being the operation of the plant to a maximum daily production capacity of more than 150 tonnes.”

3. The Second Charge alleged a similar breach. The particulars of contravention were set out in the following terms:

“Manner of contravention

The development was carried out otherwise than in accordance with the development consent by being carried out contrary to Condition 4 of the development consent which provided that the production at the plant must not exceed 150 tonnes per day at any time during operations, in that during the charge period from 20 January 2015 and continuing to 18 March 2015, the defendant engaged in a course of conduct being the operation of the plant to produce more than 150 tonnes per day.”

4. In the summons in which the Third Charge was brought, a similar breach was alleged, with the particulars of contravention being set out as follows:

“Manner of contravention

The development was carried out otherwise than in accordance with the development consent by being carried out contrary to Condition 6 of the development consent which provided that the number of trucks accessing and/or exiting the site is not to exceed twelve (12) per day, in that during the charge period, from 20 January 2015 and continuing to 18 March 2015, the defendant engaged in a course of conduct being the operation of the plant so that more than 12 trucks per day were accessing and exiting its site (being the land) at any one time.”

5. By notice of motion, the respondent sought an order that the proceedings be dismissed or permanently stayed. The respondent claimed that the First Charge did not allege an offence known to law while the Second and Third Charges were bad for duplicity. During the course of the hearing of the motion, the prosecutor sought to amend the particulars of contravention for the Second and Third Charges set out above by excluding particular days from the period “20 January 2015 and continuing to 18 March 2015”, namely, the days from 24 January 2015 until 28 January 2015 and all Sundays in February and March 2015 within that period.

6. The primary judge found in favour of the respondent on its notice of motion in relation to each of the three charges. Further, he held that the amendments proposed by the prosecutor to the particulars of the Second and Third Charges did not cure the defects. However, he gave the prosecutor leave to apply to further amend the charges.

7. At the request of the prosecutor, the primary judge submitted the following questions of law to this Court, pursuant to the provisions of s 5AE of the Criminal Appeal Act 1912 (NSW).

“1.   Did I err in finding that the charge in Summons 16/381473 alleging a breach of Condition 1 of the consent was a charge that it was not open to lay, because the terms of Condition 1 (by its incorporation of the Statement of Environmental Effects) provided a limitation on the capacity of the plant rather than on the actual operation of the plant to produce not in excess of 150 tonnes per day as this limitation is an obligation only found in the terms of Condition 4?

2.   Did I err in finding that the charge in Summons 16/381474 was bad for duplicity, because it nominated a range of dates on which the offending conduct being a breach of Condition 4 is alleged to have occurred rather than only a single day?

3.   Did I err in finding that the charge in Summons 16/381475 was bad for duplicity, because it nominated a range of dates on which the offending conduct being a breach of Condition 6 is alleged to have occurred rather than only a single day at any one time?”

8. Question 1 related to the First Charge, while Questions 2 and 3 related to the Second and Third Charges respectively.

The relevant legislation

9. Section 76A(1) of the EPA Act imposed requirements for the carrying out of a development which requires consent. It was in the following terms:

“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.”

10. It was not in issue between the parties that the development carried out by the respondent could not have been carried out “except with development consent”.

11. Section 125(1) of the EPA Act was a general offence provision. It provided as follows:

“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.”

12. The EPA Act envisaged continuing offences. That was clear from the provisions of s 126(1), which was in the following terms:

“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.”

Background

13. The charges relate to alleged breaches of a development consent permitting the respondent to operate a “temporary mobile asphalt batching plant” (the plant) on a property on Springs Road, Rock Flat New South Wales. The development consent was granted following an application to the Council pursuant to s 78A of the EPA Act. The application was accompanied by a statement of environmental effects (SEE) as required by cl 2(1)(c) of Schedule 1 to the Environmental Planning and Assessment Regulation 2000 (NSW).

14. The development consent was granted pursuant to s 80 of the EPA Act subject to conditions which were imposed by the Council pursuant to s 80A. The relevant conditions for present purposes were conditions 1, 3, 4 and 6, which were in the following terms:

“1)   The development being carried out substantially in accordance with the approved documents/plans listed in the Schedule below and development application except where amended by the conditions of this Consent as set out in the following conditions or by any subsequently approved Section 96 modification.

Document/Plan Schedule

Ref	Description	Prepared/Drawn by	Received
–	Statement of Environmental Effects	KHA Development Managers	23/12/2014
091204T- SK01	Proposed Plant Location Plan	KHA Development Managers	23/12/2014
–	Equipment Plans	Benninghoven	23/12/2014

Reason: Requirement that the development is completed in accordance with Council’s consent.

…

3)   This approval is for temporary use only and the plant must cease to operate no longer than 4 months from the date of this consent. All machinery is to be removed from the site within 5 months of the date of this consent and the site returned to its original state.

Reason: The application was for temporary use of the site only and its environmental impacts have been assessed on this basis.

4)   The plant production must not exceed 150 tonnes per day at any time during operations.

Reason: Production above this threshold would result in the proposal being designated development and would require substantially more environmental impact assessment.

…

6)   The number of trucks accessing and/or exiting the site is not to exceed twelve (12) per day at any one time.

Reason: To ensure the traffic impacts from the development do not exceed SEPP 3 Guideline thresholds.”

15. Condition 1 thus required the development to be carried out “in accordance with” the SEE, except where amended by the other conditions of consent. The First Charge, which alleges that the development was “carried out contrary to” condition 1, arises out of certain statements contained in the SEE relating to the operation of the plant. Clause 1.2 of the SEE describes the development in the following terms:

“1.2   Description of the Proposed Development

The plant will take aggregate and sand, heat and dry them before blending and mixing with bitumen and fillers to produce asphalt. During the contract period the asphalt plant will produce no more than 18,000 tonnes of asphalt and may operate 24 hours / 7 days to avoid traffic disruption.”

16. Clause 2.1.2 of the SEE provided as follows:

“2.1.2   Proposed production, in terms of tonnage

CAPACITY	TONNAGE
Maximum Daily Production	150
Anticipated Typical Annual Production	18,000

17. Clause 3.1.3 of the SEE deals with the reason why the development was not a “designated development” for the purpose of Part 5 of Schedule 3 of the Environmental Planning and Assessment Regulation 2000 (NSW). It was in the following terms:

“3.1.3   Environmental Planning & Assessment Regulation 2000

Schedule 3 of this planning instrument outlines those developments that are classified ‘designated development’. The proposed temporary mobile asphalt plant does not meet the criteria for designated development under Part 5 ‘Bitumen pre-mix and hot-mix industries’:

(1)   Bitumen premix or hot-mix industries (being industries in which crushed or ground rock is mixed with bituminous materials:

(a)   That have an intended production capacity of more than 150 tonnes per day or 30,000 tonnes per year, or

(b)   That are located:

(i)   Within 100 metres of a natural water body or wetland, or

(ii)   Within 250 metres of a residential zone or dwelling not associated with the development.

The proposed development has an intended production capacity of less than 150 tonnes per day and 18,000 tonnes per year. It is proposed to be located within a previous operating quarry and will not be located within 100 metres of a natural water body or 250 metres of a dwelling not associated with the development.”

18. Part 5 of the SEE was described as a “Compilation of Mitigation Measures” in respect of the plant. One of the “operational” mitigation measures was described in the following terms:

Mitigation Measure	Design	Construction	Operations
Production
The production capacity of the temporary asphalt plant will be limited to 150 tonnes per day of finished product. The plant will be operated generally between 7am and 5pm Monday to Friday. However, subject to RMS contract conditions the plant may need to operate outside of these hours to provide bitumen to the RMS during night work operations.	[Tick]

19. The SEE also dealt with certain matters relevant to the Third Charge. In cl 1.4.5, under the heading “Traffic and Transport”, the following remarks were made:

“1.4.5   Traffic and Transport

Approval for the proposed temporary development would result in negligible impact on the level of service, capacity and vehicular safety of Monaro Highway at Rock Flat, with only an [sic] 12 truck movements and 4 car movements likely generated.”

Clause 4.6 elaborated on cl 1.4.5 as follows:

“4.6   Traffic and Transport

The proposed temporary development is compatible with existing quarry development.

Maximum daily output (150 tonnes per day) is expected to generate up to 12 truck movements and 4 car movements.”

20. As can be seen from the particulars of contravention for the First Charge, it is alleged that the development was not carried out “in accordance with” the SEE since the respondent operated the plant to a “maximum daily production capacity of more than 150 tonnes” during the period of time specified.

The primary judgment

21. The primary judge stated that the First Charge was “expressed in terms of the plant operating to produce more than 150 tonnes per day of road-making product”. He referred to the provisions in cl 3.1.3 and Part 5 of the SEE to which I have referred at [17]-[18] above and stated that they related to the “capacity” of the plant and that those provisions in cl 2.1.2 and cl 4.6 dealt with its “intended operation”.

22. The primary judge stated that the first two of these provisions “clearly relate to the design of the plant and its potential to produce asphalt materials as being limited in a physical capability sense”. He stated that “any charge properly founded on those elements of the SEE” would have been available for any day “during which the plant was located at the approved site and could have produced more than 150 tonnes of output whether it was operating or not”.

23. The primary judge also stated that, assuming that “such a design capacity breach actually occurred”, even though the plant was “capable of operating at a production rate of greater than 150 tonnes per day and was, in fact, so operating”, this did not constitute a breach of condition 1 “by virtue of the exclusionary provision in condition 1 making anything in the SEE subordinate to any express condition of consent”, condition 4 subsumed and set aside” the relevant provisions in the SEE.

24. For these reasons, the primary judge struck out the First Charge.

25. So far as the Second and Third Charges were concerned, the primary judge stated that the proposed amendments to those charges made it clear that the “course of conduct” alleged was not “continuous”. He said that it may have been “predictable” but that it was also “intermittent”. The primary judge stated, referring to Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125; [2013] NSWCCA 204 at [47]-[48] (Truegain), that a properly founded charge based on a “course of conduct” could be sustained if it was “continuous”. However, he stated that, in the present case, the conduct complained of could not be regarded as a “continuous course of conduct”.

26. In that context, the primary judge concluded that the charge was defective, “by analogy, of the approach taken in the High Court” in Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77. He stated that this approach required that, “when there is a list of potential triggers to found a charge, the defendant in such an eventuality is entitled to know which specific event triggered that charge”. He stated that “as there is no ‘continuous conduct’ for either charge, each of the [Second and Third Charges] is defective by virtue of failing to nominate, precisely, an identified day upon which the relevant condition was said to have been breached”.

27. The primary judge stated that, as a matter of discretion, the defects in the Second and Third Charges were “potentially amenable to amendment to cure these defects” and that it was not appropriate to strike them out. However, he stated that the proposed amendment by the prosecutor did not overcome the defects and that the effect was to simply “leave standing the concept of a ‘course of conduct’, but merely one of a more confined nature”. He stated that this did not address the “fundamental deficiency” which arose from what would then become “a more confined and broken list of instances when the conduct was alleged to have occurred without specifying a particular date”.

The submitted questions

28. It is convenient to deal with Question 1 relating to the First Charge separately and then deal with Questions 2 and 3 relating to the Second and Third Charges together.

The First Charge

The prosecutor’s submissions

29. Counsel for the prosecutor referred to condition 3 of the development consent, which I have extracted at [14] above, and noted that the maximum amount of material that could be produced at a production rate of 150 tonnes per day over a period of 120 days or four months was 18,000 tonnes.

30. Counsel for the prosecutor stated that cl 2.1.2 of the SEE clearly set out the requirement the subject of the First Charge. In its written submissions, the prosecutor contended that cl 2.1.2 was not “a statement that [the plant] would have a mechanical design so that it physically, no matter how operated, could not produce more than 150 tonnes per day”, but rather, a statement that the plant, as operated, would not produce more than 150 tonnes per day. It also emphasised that there was no reference in the SEE to the plant having a “design limitation” such that it could not produce more than 150 tonnes per day. At the hearing, counsel for the prosecutor emphasised that, while the word “capacity” was used, reference was also made to “maximum daily production”.

31. In its written submissions, the prosecutor submitted that condition 4 imposed a “discrete requirement” which was additional to the requirement in condition 1 since condition 1 required that “the carrying out of the development must be substantially in accordance with the SEE”, where the prosecutor placed emphasis on the phrase “substantially in accordance with the SEE”.

32. Counsel for the prosecutor submitted that condition 4 of the consent conditions was simply an “independent condition” that the production must not exceed 150 tonnes per day and was not intended to amend the requirements of the SEE. The prosecutor also referred to cl 3.1.3 and that portion of Part 5 of the SEE to which I have referred at [18] which it submitted supported its contention. However, it is difficult to see why condition 4 was required if the SEE already contained that requirement.

33. At the hearing, counsel for the prosecutor submitted that the construction of the SEE favoured by the primary judge was “logically at odds with the incorporation by condition 1 of the engineering and design plans for the facility” because the plant would have “whatever capacity those plans dictate”. However, he acknowledged that there was no evidence that the engineering plans were inconsistent with a capacity of 150 tonnes per day. He pointed to the fact that the plant was a mobile plant and was, in those circumstances, “no doubt subject to various different approvals, regimes”, as it moved about the country, while maintaining the same “uniform physical production capacity”.

Consideration

34. The principles governing the construction of a development consent were summarised by Payne JA in Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd [2017] NSWCA 263 (Bunderra Holdings) in the following terms at [158]:

“(1) the nature and extent of the approved development must be determined by construing the document of approval, including any plans or other documents which it incorporates, aided only by that evidence admissible in relation to construction which establishes, or helps to establish, the true meaning of the document as the unilateral act of the relevant authority, not the result of a bilateral transaction between the applicant and the Council. Thus evidence of the nature of the site would always be admissible for this purpose, as would be, in appropriate cases, evidence as to the meaning of the marks on plans, or indeed, the meaning of the absence of particular marks: Parramatta City Council v Shell Co of Australia Ltd [1972] 2 NSWLR 632 at 637; (1972) 27 LGRA 102 at 107 per Hope JA;

(2) a development consent is to be construed according to its terms, having regard to its enduring nature. A development consent has an enduring nature because it is not personal to the applicant but is a public document operating in rem for the benefit of third parties such as subsequent owners, occupiers and security holders, and in some respects is equivalent to a document of title: House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; 106 LGERA 440 at [23]; Winn v Director-General of National Parks and Wildlife (2001) 130 LGERA 508 at [4]: The enduring nature of a development consent encourages a fair but liberal reading of the rights it confers upon a landowner who may spend considerable money acting upon it and who is likely to wish to sell the land sooner or later: House of Peace at [41];

(3) a development consent is to be construed not as a document drafted with legal expertise, but to achieve practical results: Westfield Management Limited v Perpetual Trustee Company Limited [2006] NSWCA 245 at [36]; Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd (2009) 167 LGERA 395, at [105]; and

(4) as a general rule, a development consent, being a public document operating in rem for the benefit of third parties, should be construed without reference to extrinsic evidence other than to identify a thing or place referred to in it. That extrinsic evidence is not led to vary the consent but to identify a thing or place referred to in it. Evidence as to the nature or physical features of the land may also be admissible for that purpose, at least those features observable by a third party at the time of the consent: Allandale Blue Metal Pty Ltd v Roads and Maritime Services (2013) 195 LGERA 182 at [44]; Shell Co of Australia at 637; 107.”

See also the judgment of Leeming JA at [56], [63]-[64].

35. Although I accept, as Leeming JA pointed out in Bunderra Holdings at [56], quoting Westfield Management Ltd v Perpetual Trustee Company Ltd [2006] NSWCA 245 at [36], that “conditions of consent are to be construed not as documents drafted with legal expertise, but to achieve practical results”, I am of the opinion that, nevertheless, principles of statutory construction can be of assistance in construing a development consent. In particular, the development consent should be construed to produce a “harmonious” result and to “give meaning to every word” of its provisions: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [70]-[71].

36. In the present case, condition 4 expressly places a limit on plant production. The SEE does not expressly do so. Rather, cl 2.1.2 and cl 3.1.3 of the SEE each deal with “capacity”. While Part 5 of the SEE refers to the “production capacity” being “limited to 150 tonnes per day” and cl 4.6 refers to a “maximum daily output” of 150 tonnes per day, there is no express limitation on plant production as contained in condition 4. Further, the reference in cl 4.6 to the “maximum daily output” of 150 tonnes per day was made in the context of a statement that the output was expected to generate up to “12 truck movements and 4 car movements” per day.

37. While it may be possible to construe the SEE as imposing a limit on plant production, it does not expressly do so and I think that this is something recognised by the Council in imposing condition 4 as a condition of the development consent. In my opinion, in these circumstances, where the SEE does not expressly impose the limit on plant production, the provisions of the SEE to which I have referred at [37] above should not be construed as doing so.

38. It follows that Question 1 of the submitted questions should be answered “No”.

The Second and Third Charges

The prosecutor’s submissions

39. In relation to the Second Charge, the prosecutor emphasised that it was a contravention of s 76A(1)(b), namely, a failure to carry out the development “in accordance with” the consent. Counsel for the prosecutor submitted that what was alleged was an offence of a “continuing nature”, although he said, “not on every day, that’s not the nature of continuing when used in this context. The plant’s closed on a Sunday after all and it was closed over the Australia Day period”. He submitted that, when the plant was operating, the respondent engaged in a “course of conduct” to produce more than 150 tonnes per day. He emphasised that s 126(1) envisaged a “continuing offence” in providing for the imposition of daily penalties. He submitted that it was well-established that a continuing offence need not continue “on each and every day within the charge period”.

40. Counsel for the prosecutor referred to the judgment of Kirby J in Walsh v Tattersall (1996) 188 CLR 77 at 108; [1996] HCA 26 (Walsh v Tattersall), and submitted that the indicia referred to by his Honour, namely, the “connection of the events in point of time”, the “similarity of the acts”, the “physical proximity of the place where the events happened”, and “the intention of the accused throughout the conduct”, all pointed to the offence being a “continuing offence” in the present case. He submitted that there was “unity of time” and “complete similarity of the acts”, and noted that it was “production from the same plant in the same spot to the same effect as part of the same project”.

41. Counsel for the prosecutor submitted that the approach to be taken was correctly set out by Leeming JA in Truegain at [50]-[52]. He submitted, referring to that judgment, that the “starting point” was the construction of the statute and reiterated that the offence could be treated as a “continuing offence” by reason of the penalty provisions in s 126(1) and the terms of s 76A itself. He submitted that this approach was supported by what was said by Gaudron and Gummow JJ in Walsh v Tattersall at 91.

42. Counsel for the prosecutor submitted that this approach was also supported by the decisions of this Court in CSR Ltd v Environmental Protection Authority [2000] NSWCCA 373 at [44]-[45], R v Moussad [1999] NSWCCA 337 at [32]-[33], [64], R v Hamzy (1994) 74 A Crim R 341, and Director-General of Department of Land and Water Conservation v Greentree (2003) 140 A Crim R 25; [2003] NSWCCA 31 at [43]. He noted that the last case determined that unauthorised land clearing over a period of time could constitute a “continuing offence”.

43. Counsel for the prosecutor placed particular reliance on Hakim v Waterways Authority (NSW) [2006] NSWCCA 376 at [82]-[88] (Hakim), where he submitted that a charge of carrying out unauthorised excavation involving two acts some three months apart was held to be able to be charged as a single offence since there was “sufficient unity in terms of time, place and purpose”.

44. In relation to the Third Charge, the prosecutor repeated the submissions made in relation to the Second Charge.

The respondent’s submissions

45. The respondent submitted that the date on which condition 4 was breached by producing more than 150 tonnes was “an essential factual ingredient of the actual offence”. It submitted that the failure to identify that essential ingredient was “not merely technical”, but was “fundamental”, and as such, the charge was defective. Senior counsel for the respondent submitted that condition 4 looked at “24-hour periods” and that whether there was a breach on one day was not relevant to the question of whether there was a breach on another day.

46. Senior counsel for the respondent submitted that the position in the present case was the same as that described by Gaudron and Gummow JJ in Walsh v Tattersall at 91, where, in the context of the offence of obtaining by dishonest means any payment or other benefit, it was said that a “discrete offence” arose upon the receipt of any one payment or benefit.

Consideration

47. There is no doubt that, where acts form part of the “same transaction or a criminal enterprise”, they can be charged as a single count: Truegain at [48]. This approach has been affirmed in many cases, including a number involving environmental protection legislation.

48. In Hakim, the appeal was concerned with the offence of carrying out excavation work on protected land without a permit contrary to s 22B(2) of the Rivers and Foreshores Improvement Act 1948 (NSW). The particulars to the charge identified several distinct excavations described in the judgment as the “slab excavation”, which took place in October and November 2003, and the “rock fall excavation” and “ramp excavation”, which both took place on February 2004. The charge was found not to be bad for duplicity. Spigelman CJ made the following remarks at [85]-[87]:

“[85]   At all times the prosecution advanced a case that there was a single overall enterprise, in the sense that there was one construction project which encompassed all acts of excavation necessary or convenient to be carried out for its fulfilment. The charge encompassed every act of excavation within the foreshore area, howsoever separated in time or location. With respect to one aspect of the charge – whether the Appellant caused the rock fall – the Appellant succeeded. With respect to what came before – the slab excavation and what came after – the ramp excavation, the Appellant failed.

[86]   I do not find anything unreasonable in a charge of this character. A single construction project can involve numerous acts, capable of separate treatment for different purposes. This case focused on two locations: the area of the slab and the area of the cliff face. It does not appear that the two locations necessarily exhausted the full range of acts capable of constituting an excavation on the site. If some other act within the period were to be the subject of a charge, the Appellant could, in my opinion successfully, plead autrefois convict.

[87]   Nothing in the scope and purpose of the legislative scheme suggests that the word ‘excavation’ requires a process of specification of each distinct act capable of constituting, in some technical or other sense, a different excavation. It is appropriate that the prohibited conduct should be understood as extending to a course of conduct over a period of time pursuant to an overall scheme.”

49. It is important to note that his Honour’s conclusion was based on the fact that nothing in the “scope and purpose” of the relevant legislation required a “specification of each distinct act capable of constituting, in some technical or other sense, a different excavation”. As Leeming JA pointed out in Truegain at [52], referring to what was said by Basten JA in Hannes v Director of Public Prosecutions (Cth) (No 2) [2006] NSWCCA 373 at [9] and Jordan CJ in Ex parte Polley; Re McLennan (1947) 47 SR (NSW) 391 at 392, the question of “whether an enactment creates one offence or several depends upon its subject matter and language considered in their context”.

50. Nonetheless, despite some relaxation of the principle in the United Kingdom, as demonstrated in Director of Public Prosecutions v Merriman [1973] AC 584 at 607, the strict approach to the question of duplicity remains the law in this country. In Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77 (Johnson v Miller), to prove a charge that, during prohibited hours, certain persons were seen coming in or out of premises of which the defendant was the licensee, it was proposed to particularise that about 30 men were seen coming in or out of the premises at the relevant times. Only four men were able to be identified by the prosecution. Dixon J stated at 483 that he was unable to agree that the departure of persons from the premises “on distinct occasions however close in point of time” could be treated as constituting one offence. His Honour made the following remarks at 489:

“For, in many cases, evidence of more than one offence cannot be admitted, and under one charge to take evidence of a number of separate instances of the commission of the same offence because each will indifferently fit the complaint is to pursue a course contrary to law. It cannot be enough to require the complainant to elect among the instances he has proved after his evidence has been given in full. Where an information or complaint is so drawn as to disclose more than one offence and one set of facts amounts to each of the various offences covered by the charge, as was the case in Johnson v. Needham [[1909] 1 KB 626], the proper course is to put the complainant to his election. In such a case, to wait to the end of his evidence before doing so may be convenient and may cause no injustice. But it is the converse of the present case, where the question is whether the prosecutor should not be required to identify one of a number of sets of facts, each amounting to the commission of the same offence as that on which the charge is based. In my opinion he clearly should be required to identify the transaction on which he relies and he should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint. For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge.”

51. In the same case, Evatt J explained the rule in the following terms at 497-498:

“It is an essential part of the concept of justice in criminal cases that not a single piece of evidence should be admitted against a defendant unless he has a right to resist its reception upon the ground of irrelevance, whereupon the court has both the right and the duty to rule upon such an objection. These fundamental rights cannot be exercised if, through a failure or refusal to specify or particularize the offence charged, neither the court nor the defendant (nor perhaps the prosecutor) is as yet aware of the offence intended to be charged. Indeed the matter arises at an even earlier stage. The defendant cannot plead unless he knows what is the precise charge being preferred against him. If he so chooses, a defendant has a right to plead guilty, and therefore to know what it is he is being called upon to answer.”

See also John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508 at 519; [1987] HCA 42; S v The Queen (1989) 168 CLR 266 at 284; [1989] HCA 66.

52. In Walsh v Tattersall, the defendant was charged under the Workers Rehabilitation and Compensation Act 1986 (SA) with obtaining by dishonest means “payments or benefits” under the Act. A series of payments was alleged. The defendant was convicted and this conviction was upheld by the Full Court of the Supreme Court of South Australia, but was later quashed by the High Court. Kirby J, who formed part of the majority, held that the count was bad for duplicity.

53. His Honour affirmed the approach taken in Johnson v Miller indicating at 110 that he could not agree to any reduction to the “strict approach to resolving questions of duplicity in the pleading of criminal charges”. He stated at 108 that a consideration of whether criminal acts were sufficiently close in time and space to “fairly and properly be identified as part of the same criminal enterprise” involved consideration of various indicia including the “connection of the events in point of time”, the “similarity of the acts”, the “physical proximity of the place where the events happened” and the “intention of the accused throughout the conduct”.

54. Although Gaudron and Gummow JJ, the other members of the majority, did not decide the question on the ground of duplicity, they held that the defendant was not properly charged with an offence under the Act because the Act dealt with “discrete offences” which were completed on the receipt of each payment. They contrasted the offence under the Act with one defined in terms of a course of conduct or state of affairs: Walsh v Tattersall at 91.

55. Section 76A(1) of the EPA Act is plainly a provision which can apply to a continuing course of conduct such as, for example, the use of premises contrary to the terms of a development consent, or engaging in construction on premises not in accordance with the terms of such a consent. This is recognised by the fact that s 126(1) imposes a daily penalty for ongoing contraventions of provisions of the Act, which would include a contravention of s 76A(1)(b).

56. However, s 76A(1) also extends to breaches of particular provisions of the consent. It is not disputed that such breaches can be charged as separate offences. That is illustrated in the present case by the separate charges in respect of the alleged contraventions of conditions 4 and 6.

57. In the present case, the prosecutor contends that what was involved in each of the Second and Third Charges was a “continuing offence” and that, in effect, there was one contravention of the same nature which continued on each day that the plant was open. By contrast, the respondent contends that condition 4 and condition 6 envisage “discrete offences” on each day that the conditions were breached. However, the respondent did not seem to adopt the approach of Gaudron and Gummow JJ in Walsh v Tattersall and contend that the charge was bad in law for that reason, but rather, simply asserted that it was duplicitous.

58. Thus, the question is whether the particularised charges relate to “discrete” contraventions of s 76A(1)(b) occurring on each day that the condition was contravened or whether the contravention is capable of being seen as a “continuing course of conduct” constituting one offence. If the former is the correct characterisation, then the charges are bad for duplicity. If the latter, then they are not.

59. In my opinion, each breach of condition 4 and condition 6 constitutes a separate contravention of s 76A(1)(b) of the EPA Act because the relevant contravention is the carrying out of the relevant act stated in the condition on a particular day. A separate contravention occurs on each day that the plant produces more than 150 tonnes (the Second Charge) or where more than 12 trucks enter or leave the site of the plant on the day in question (the Third Charge). This is consistent with the plain language of each of the conditions, which refer in terms to the particular limitations being imposed “per day”.

60. The question may be tested in the following way. During the course of its submissions, the prosecutor indicated that it would seek to prove that the contraventions occurred on each day in the period specified in the Second and Third Charges. Notwithstanding if it could only be proved that a contravention occurred on only one of the days in that period, the offence as charged would be made out. In my opinion, this demonstrates that the charge encompasses multiple separate offences rather than a single offence.

61. For these reasons, the Second and Third Charges are bad for duplicity.

62. In the result, I would make the following orders:

1. Answer the questions submitted to the Court pursuant to s 5AE of the Criminal Appeal Act 1912 (NSW) as follows:

Question 1:   Did I err in finding that the charge in Summons 16/381473 alleging a breach of Condition 1 of the consent was a charge that it was not open to lay, because the terms of Condition 1 (by its incorporation of the Statement of Environmental Effects) provided a limitation on the capacity of the plant rather than on the actual operation of the plant to produce not in excess of 150 tonnes per day as this limitation is an obligation only found in the terms of Condition 4?

Answer:   No.

Question 2:   Did I err in finding that the charge in Summons 16/381474 was bad for duplicity, because it nominated a range of dates on which the offending conduct being a breach of Condition 4 is alleged to have occurred rather than only a single day?

Answer:   No.

Question 3:   Did I err in finding that the charge in Summons 16/381475 was bad for duplicity, because it nominated a range of dates on which the offending conduct being a breach of Condition 6 is alleged to have occurred rather than only a single day at any one time?

Answer:   No.

2. Remit the application to the Land and Environment Court of New South Wales to be dealt with according to law.

3. Order the applicant to pay the respondent’s costs of the proceedings in this Court.

63. FULLERTON J: I agree with the Chief Justice.

64. CAMPBELL J: I agree with the orders proposed by the Chief Justice for the reasons his Honour has expressed.

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Decision last updated: 21 September 2018