Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd

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.

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

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

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:

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.

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.

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).

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

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:

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”.

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

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

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).

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:

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:

Clause 2.1.2 of the SEE provided as follows:

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:

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:

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:

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 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”.

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”.

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.

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

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”.

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”.

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”.

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.

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.

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”.

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”.

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.

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”.

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]:

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].

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.

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.

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

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”.

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”.

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.

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”.

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”.

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

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.

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.

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.

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]:

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”.

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:

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

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.

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”.

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.

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).

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.

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.

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.

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”.

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.

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

In the result, I would make the following orders:

FULLERTON J: I agree with the Chief Justice.

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