The Hills Shire Council v C F Pye Pty Ltd

[2014] NSWLEC 49

Land and Environment Court

New South Wales

Medium Neutral Citation:

The Hills Shire Council v C F Pye Pty Ltd [2014] NSWLEC 49

Hearing dates:

23 April 2014

Decision date:

23 April 2014

Jurisdiction:

Class 5

Before:

Craig J

Decision:

1. In proceedings 50452 of 2013 the summons is dismissed.

2. In proceedings 50453 of 2013 the summons is dismissed.

3. In proceedings 50454 of 2013 the summons is dismissed.

Catchwords:

PROSECUTION - three charges of failure to comply with clean-up notice - s 91(5) of the Protection of the Environment Operations Act 1997 - defendant seeking leave to withdraw its plea of guilty - leave not opposed - object of clean up notices achieved - objects of Protection of the Environment Operations Act 1997 met - interests of justice - leave granted - no evidence offered by prosecutor - each summons dismissed

Legislation Cited:

Protection of the Environment Operations Act 1997 (NSW)

Category:

Principal judgment

Parties:

The Hills Shire Council (Prosecutor)
C F Pye Pty Limited (Defendant)

Representation:

M L Wright (Prosecutor)
S A Duggan SC with S B Nash (Defendant)
The Hills Shire Council (Prosecutor)
A R Conolly & Company (Defendant)

File Number(s):

50452, 50453 and 50454 of 2013

EX TEMPORE Judgment

1. The defendant has been charged with three offences against s 91(5) of the Protection of the Environment Operations Act 1997 (NSW). Those offences are said to arise following the service upon the defendant of three Clean-up Notices issued under s 91(1) of the Protection of the Environment Operations Act. The Notices issued under the provisions of that section related to three parcels of land, two of which were owned by the defendant and the third, being a Crown Public Road, separated the two parcels of land owned by the defendant.

1. Shortly after commencement of the present prosecutions, the defendant entered a plea of guilty to each of the offences with which it was charged. Directions were given for the preparation of the matter for hearing, as on a plea of guilty, and that hearing was fixed to commence today.

1. When the matter was called for hearing, the defendant announced that it wished to withdraw its pleas of guilty. The circumstances in which this application was made are unusual. Therefore, a brief description of those circumstances is necessary.

1. At the time at which the application of the defendant to withdraw its pleas was made, the prosecutor, through its counsel, Mr M Wright, stated that the principal object that the Hills Shire Council, as prosecutor, sought to achieve by issuing the Notices in question was to secure the removal of a volume of fill material that had been deposited on each of the three sites that are the subject of those Notices.

1. That object has now been achieved. The Council is satisfied that each of the three sites in question have been cleared of all imported fill material and that each site has been appropriately remediated.

1. Mr Wright also stated that the Council did not oppose the withdrawal of the guilty pleas entered by the defendant. Further, he accepted that the withdrawal of the pleas was, in the circumstances, in the interests of justice. That interest was said to be achieved in that the objects of the Protection of the Environment Operations Act had been met by the actions of the defendant in carrying out the clean up and remediation works that were the subject of the Notices, albeit, that the work may not have been completed within the time nominated in those Notices.

1. It is also accepted by the prosecutor that considerable expense has been incurred by the defendant in carrying out the clean up operation and remediating the sites in question, that expense being a sum approximating $112,000. The prosecutor further accepts as being relevant that the act of depositing fill on the three sites to which I have referred has been the subject of separate prosecutions brought by the Council in the Local Court at Hornsby. Those proceedings have concluded with orders made against the defendant in that Court.

1. While the circumstances that I have identified are unusual and provide no precedent for the circumstances in which an application to withdraw a plea of guilty will be favourably considered, I am satisfied that it is in the interests of justice in the present case to allow the defendant's pleas of guilty to be withdrawn. The prosecutor's acceptance that this course is appropriate, coupled with the related prosecution in the Local Court, resulting in orders made against the defendant, are among the factors that I have taken into account in reaching that conclusion.

1. The plea of guilty having been withdrawn, the prosecutor offers no evidence in any of the three proceedings that it has commenced against the defendant. It applies to have each summons dismissed.

1. In accordance with that application and in the absence of evidence in support of those proceedings, I make the following orders:

1. In proceedings 50452 of 2013 the summons is dismissed.

2. In proceedings 50453 of 2013 the summons is dismissed.

3. In proceedings 50454 of 2013 the summons is dismissed.

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