Wyong Shire Council v Thomas Hughes Homes Pty Limited
[2000] NSWLEC 234
•12/06/2000
Reported Decision: (2000) 111 LGERA 371
Land and Environment Court
of New South Wales
CITATION: Wyong Shire Council v Thomas Hughes Homes Pty Limited [2000] NSWLEC 234 PARTIES: PROSECUTOR
DEFENDANT
Wyong Shire Council
Thomas Hughes Homes Pty LimitedFILE NUMBER(S): 50056 of 1999 CORAM: Cowdroy J KEY ISSUES: Environmental Offences - Prosecution :- alleged waste facility - proceedings initiated by local authority - local authority prohibited from instituting proceedings for an ‘excluded offence’ as defined - no power of local authority to institute proceedings - jurisdiction of Court to consider order to issue summons - proceedings dismissed. LEGISLATION CITED: Land and Environment Court Rules 1996 Pt 15 r 9
Protection of the Environment Operations Act 1997 s 6, s 217, s 218, s 219CASES CITED: DATES OF HEARING: 30/10/00 DATE OF JUDGMENT:
12/06/2000LEGAL REPRESENTATIVES:
PROSECUTOR
Mr W Davison SCSOLICITORS
Abbott ToutDEFENDANT
SOLICITORS
Mr J Johnson (Barrister)
Stephen Marks Solicitors
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESMATTER No. 50056 of 1999
CORAM: Cowdroy J
DECISION DATE: 6/12/00
Prosecutor
Defendant
Background
1. Thomas Hughes Homes Pty Ltd is the defendant to a class 5 prosecution instituted by Wyong Shire Council (“the prosecutor”) on 11 October 1999. The defendant was charged that it committed an offence against s 5 of the Environmental Offences and Penalties Act 1989 (“the EOP Act”). The charge alleges the defendant disposed of waste in a manner which was likely to cause harm to the environment at Lot 100 DP 71114 upon land known as 80 Collies Lane, Mardi (“the site”) without lawful authority.
2. By notice of motion dated 30 June 2000 the defendant seeks an order that the proceedings be dismissed.
Submissions
3. Section 324 and Schedule 3 of the Protection of the Environment Operations Act 1997 (“the PEO Act”) repealed the EOP Act. Schedule 5 of Pt 1 of the PEO Act provides for regulations to be made containing savings or transitional provisions.
4. Pursuant to cl 17(1) of the Protection of the Environment Operations (Savings and Transitional) Regulation 1998, Pt 8.2 and Pt 8.4 of the PEO Act apply to proceedings of offences committed against a repealed Act. Sections 217, s 218, s 219 of the PEO Act now govern the institution of proceedings.
5. Section 217 of the PEO Act provides for the institution of proceedings as follows:-
217 EPA or other appropriate regulatory authority may institute proceedings
(1) EPA
Proceedings for an offence against this Act or the regulations may be instituted by the EPA
(2) Other appropriate regulatory authoritiesAny such proceedings may also be instituted by the appropriate regulatory authority, if it is not the EPA, in connection with the matter for which it is the appropriate regulatory authority.
Section 218 of the PEO Act provides:-
218 Other authorities who may also institute proceedings
(1) Local authority - offences other than excluded offences
A local authority may institute proceedings for any offence against this Act or the regulations (other than an excluded offence).
6. An ‘excluded offence’ is defined in s 218(6) of the PEO Act to include an offence committed in relation to ‘scheduled activities’ (see s 218(6)(a)). A waste facility is a ‘ scheduled activity’ since it is defined in the dictionary to the PEO Act as ‘ an activity listed in Schedule 1’ . A non-scheduled activity is defined in such dictionary as meaning ‘ an activity that is not a scheduled activity and is not a scheduled development work’ .
7. Section 6(2) of the PEO Act provides inter alia, that ‘ the local authority is the appropriate regulatory authority for non-scheduled activity in its area’, subject to certain exceptions which are not presently relevant.
8. For the purpose of these proceedings the defendant and prosecutor agree that upon the site the defendant has conducted a ‘waste facility’ as defined in Schedule 1 to the PEO Act which was within 40 m of a permanent waterbody. The site therefore constituted a ‘ landfill site in environmentally sensitive areas’ as defined in subclause 1(g) of the definition of ‘waste facility’ in Schedule 1 to the PEO Act. The definition of ‘ waste facility’ (“the definition”) as contained in 1(g) relevantly defines such activity as follows:-
Landfill or application sites in environmentally sensitive areas, being landfill or application sites that are located in an environmentally sensitive area described in Technical Appendix 8 of the Waste Guidelines, except those:
(i) …
(ii) that are situated on residential premises, or on land used principally for farming operations, and only if the disposal of waste is carried out on site,
9. The defendant submits that as a waste facility is a scheduled activity the prosecutor is not the ‘ appropriate regulatory authority’ since it is only entitled to regulate non-scheduled activities.
10. In response the prosecutor submits that the definition of landfill, paragraph (g) of Schedule 1 of the PEO Act contains an important exception as set-out in subparagraph (ii) thereof. Such exception is directed to activities carried out on land used principally for farming operations. The prosecutor submits that since the site is included in comprises land zoned 1(a) (Rural Zone) pursuant to the Wyong Local Environmental Plan 1991 and is used principally for farming purposes or in the alternative for residential purposes (with consent), such subparagraph applies to exempt it from the definition of ‘waste facilities’. Accordingly the alleged activity at the site is not a scheduled activity.
11. In rejoinder the defendant relies upon the words of subparagraph (ii) of paragraph (g) of the definition namely, ‘ only if the disposal of waste is carried out on site ’ which it says exempts it from the exception contained in the definition. The words ‘ on site’ have a specified meaning as contained in Pt 3 Div 2 of Schedule 1 of the PEO Act namely:-
on site - a reference to something being done in relation to waste on site is a reference to that thing being done only on the premises on which the waste was generated.
Accordingly the defendant submits that the waste in question was not generated on the site because such waste was collected from Sydney and transported to the site. Therefore the exception as set out in subparagraph (ii) to paragraph (g) of the definition has no application. As such the alleged actions of the defendant remain a scheduled activity for the purposes of the provisions of the PEO Act.
12. In its written submissions dated 8 November 2000 the prosecutor concedes that it cannot maintain that the waste the subject of the charge was ‘ generated ’ on site. In consequence of such concession, it follows that the requirements of the exception to subparagraph (ii) of the definition are not satisfied. Accordingly the alleged activity being conducted by the defendant is a ‘scheduled’ activity for the purposes of the provisions of the PEO Act.
13. Only the Environment Protection Authority pursuant to s 217(1) of the PEO Act, or ‘ the appropriate regulatory authority’ as prescribed by s 217(2) may institute prosecution for a scheduled activity. In the present circumstances because of the nature of the alleged offence the prosecutor, being a local authority, does not possess the requisite power to prosecute the defendant.
Power to dismiss charge
14. The defendant relies upon the provisions of Pt 15 r 9 of the Land and Environment Court Rules 1996 (“the Rules”) to support the relief claimed in its Notice of Motion. Such rule relevantly provides:-
9 The Court, may, on terms, set aside or vary an order in any of the following cases:-
(a) if the order has been made in the absence of a party, whether or not the absent party is in default of appearance or otherwise in default, and whether or not the absent party had notice of the motion for the order;
(b) - (f) not relevant
The defendant contends that it was not present when the order of 11 October 1998 was made and accordingly the Court has jurisdiction to entertain this notice of motion. The prosecutor submits that a class five proceeding is initially commenced it is of necessity ex-parte and that accordingly the provisions of Pt 15 r 9 do not apply to the initiation of such proceedings.
15. The Court does not adopt the prosecutor’s construction of Pt 15 r 9 of the Rules. Such rule is not expressly restricted in its application to civil proceeding nor is there any necessity to imply such a restriction. Accordingly the Court possesses the requisite jurisdiction to entertain the notice of motion of the defendant.
16. The proceedings have been instituted by a prosecutor who does not possess the requisite legislative power to prosecute in relation to a scheduled activity. Accordingly the Court dismisses the charge against the defendant and orders the prosecutor to pay the defendant’s costs pursuant to s 52(1)(b) of the Land and Environment Court Act 1979.
Orders
17. In view of the foregoing the Court orders:-
1. The proceedings be dismissed.
2. The prosecutor pay the defendant’s costs.
3. The exhibits be returned.
1
0
2