Cumberland Council v Tony Younan; Cumberland Council v Ronney Oueik; Cumberland Council v H & M Renovations Pty Ltd

Land and Environment Court (NSW)|2018-08-28|Before: Robson J

Solicitors: Bilias & Associates (Prosecutor) Ristevski & Associates (Defendants) File Number(s): 2018/00139316; 2018/00139368; 2018/00139380; 2018/00139360; 2018/00139374; 2018/00139375

Judgment

Before the Court is a preliminary question in relation to six Class 5 proceedings brought by Cumberland Council ('prosecutor'), two against each of the three defendants: Tony Younan, Ronney Oueik and H & M Renovations Pty Ltd. Where appropriate, Mr Younan, Mr Oueik and H & M Renovations Pty Ltd will be referred to collectively as 'the defendants'.
The proceedings were commenced on 3 May 2018 and relate to the prosecutor's allegation that in 2014 each of the defendants committed, either as principal or accessory, offences against s 125(1) of the Environmental Planning and Assessment Act 1979 (NSW) ('EPA Act').
One summons against each of the defendants relates to a charge pursuant to s 125(1) of the EPA Act ('s 125(1) Summonses') that each of the defendants commenced the erection of a building in accordance with a development consent but without a construction certificate in breach of s 81A of the EPA Act or, in the alternative, that each of the defendants aided, abetted, counselled or procured others to do so.
The other three summonses, again one against each defendant, allege that each defendant "aided, abetted, counselled or procured others" to commence the erection of a building without a construction certificate in breach of s 81A of the EPA Act ('s 125(3A) Summonses'). The s 125(3A) Summonses particularise the accessorial liability as arising from s 125(3A) of the EPA Act.

Background

For the purposes of the preliminary hearing before the Court, the following background facts are uncontroversial.
On 18 November 2008, Development Application 398/2008 ('Original DA') was lodged with what was then Auburn City Council ('Auburn Council'). The Original DA was lodged by the Australian Islamic Cultural Centre ('AICC') and sought approval for the demolition of existing buildings and the construction of a new mosque, comprising a three-storey building with two levels of basement parking at 43‑47 Harrow Road, Auburn ('site').
Auburn Council resolved to grant deferred commencement approval to the Original DA at its meeting of 25 January 2010. On 5 February 2010, Auburn Council issued an operational consent.
On 12 April 2012, Shafiq Khan, President of the AICC, lodged a s 96 modification application to "amend conditions of consent for exemptions of all monetary contributions to Auburn Council". On 26 June 2012, Auburn Council approved the s 96 application by resolution.
On 16 October 2012, a construction certificate was issued by Building Certificates Australia Pty Ltd for "the demolition of existing buildings, basement excavation and building works to ground floor slab only".
On 10 February 2014, Mr Khan lodged a s 96 modification application to modify the consent to "introduce an additional basement level of carparking". The modification application was approved under delegated authority on 5 May 2014.
On 9 May 2014, Steven Saad, a private certifier working at Certified Building Specialists Pty Ltd, issued a second construction certificate, being for the stage one works, comprising "site establishment works, bulk excavation, shoring, basement piling and capping beam" but specifically excluding "all other associated building and development works". Mr Saad provided a copy of this construction certificate to Auburn Council.
On 27 May 2014, Mr Saad issued a third construction certificate, being for the stage two works, including "the construction of the concrete elements of the three level basement car parking" but again excluding "all other associated building and development works". This construction certification was also provided to Auburn Council. Neither construction certificate issued by Mr Saad certified or purported to certify any above-ground works.
On 6 August 2014, Mr Khan lodged a s 96 modification application for "minor increases in building footprint, minor design changes to the façade", which was approved by council resolution on 18 February 2015. The consent was formally issued by Auburn Council on 25 February 2015.
On 17 September 2015, Auburn Council received a letter from Orlando Da Silva, of Building Certificates Australia Pty Ltd, which advised that works at the site had progressed beyond the scope of what was approved in the construction certificate that his company had issued on 16 October 2012 and inquiring whether a new certifier had approved the above-ground works.
The letter was addressed to the AICC but also sent to Auburn Council and relevantly provided: … This is a courtesy letter pertaining to the above mentioned development site. It has come to our attention that works at the above site have clearly progressed beyond the scope of what was approved under the Stage One Construction Certificate No. 338/12 issued by our office on 16/10/2012. As a matter of courtesy, we wish to remind you that a Principal Certifying Authority is required to be appointed prior to building works commencing. In this regard, we assume that another company was engaged to act in the capacity of Principal Certifying Authority, considering that an application was not received by our office for this and works have now progressed. I have also attached a copy of the letter sent to you on the 16 October 2012 which clearly identified this process. If you have any enquiries regarding the details contained within the above please do not hesitate to contact the undersigned. …
The letter came to the attention of Jason Mooney, an officer at Auburn Council, whose search of the council's records, including the council's electronic document management system known as "PATHWAY", indicated that there were three construction certificates on file. Mr Mooney noted that two of the construction certificates had been issued by Certified Building Specialists Pty Ltd, not Mr Da Silva's company Building Certificates Australia Pty Ltd.
The electronic entries for the construction certificates on the PATHWAY system described the two construction certificates issued by Certified Building Specialists Pty Ltd as being for "demolition of existing buildings including Heritage Item 7-3-3-102 known as Auburn Fire Station (former) and construction of three storey building with 2 levels of basement carparking for use as a place of public worship - mosque, library and youth/cultural centre" and "demolition of existing buildings. Construction of three storey building with 3 levels of basement carparking for use as a place of public worship" respectively.
In his affidavit, Mr Mooney attests that he assumed from the description of the construction certificates that a construction certificate had been issued for the above-ground works. He did not open the documents to read the construction certificates themselves. He took no further action in relation to the matter at that time.
On 2 October 2015, Mr Khan lodged a s 96 modification application for "internal modifications", which was approved on 15 December 2015. However, the application was only approved on the basis that circular void spaces approved in the Original DA but sought to be removed in the modification application would be maintained.
On 22 March 2016, a meeting was held at Auburn Council concerning the works at the site. There is some dispute as to whether the discussion focussed upon the in-filling of the voids, which had taken place contrary to the planning approvals, or construction works taking place above-ground without a construction certificate. In light of a concession made by the prosecutor during the course of hearing and explained further below, that dispute is not presently relevant.
A letter was sent by Auburn Council on 23 March 2016 to Mr Saad seeking an urgent response in relation to whether the works were approved. Again, it was not entirely clear from the evidence whether Auburn Council, in referring the matter to Mr Saad, harboured concerns in relation to the in-filling of the voids or the failure to obtain a construction certificate.
It might be thought that Mr Saad would more likely have been contacted in relation to the failure to obtain a construction certificate since he was the private certifier who had issued the two most recent construction certificates on file. However, given the prosecutor's concession that by 22 March 2016 the carrying out of works without a construction certificate had come to the attention of an authorised officer, it is unnecessary to reach a concluded view in this regard.
On 28 April 2016, Mr Khan lodged a s 96 modification application seeking approval for the "closure of the atrium well" (which related to the in-filling of the voids).
In a letter dated 4 May 2016 (but filed and stamped by Auburn Council on 9 May 2016), Mr Saad, presumably in response to Auburn Council's communication of 23 March 2016, included a Notice of Proposed Order pursuant to what was then s 121B of the EPA Act which required the AICC to "remove all above ground levels of the building constructed without a Construction Certificate approval".
Mr Saad's letter relevantly provided: … Please find herewith a Notice of Proposed Order with respect to the above Development Consent. Should you have any concerns regarding this matter do not hesitate to contact me during normal business hours. …
The Notice of Proposed Order attached to Mr Saad's letter relevantly provided as follows: … Circumstances giving rise to the issue of the Proposed Order: Concerns have been made to Steven Saad of Certified Building Specialists in regards to the construction of all above ground levels of the building at the above mentioned development. The Proposed Order: Order No 2 will require the Australian Islamic Cultural Centre to: 1. Remove all above ground levels of the building constructed without a construction Certificate Approval. Period of Compliance From the date of the actual Order, you will have 28 days to comply. Reasons for the Proposed Order: 1. Condition 6 of Development Consent Number DA-398/2008 has not been complied with in relation to obtaining a Construction Certificate prior to the commencement of the subject works. …
On 6 September 2016, the prosecutor (which had, by this time, been renamed Cumberland Council following a merger) received a complaint from a property adjoining the site regarding the "height of the approved brick boundary fence". On that day, Mr Mooney conducted an inspection and subsequently sent an email to Mr Khan in which he advised that there was no construction certificate for the boundary fence. After a conversation with Mr Saad and a search of council records, he determined that no construction certificate had been issued in respect of any of the above-ground works.
On 7 September 2016, there was a second inspection of the site carried out by officers of the prosecutor and on 8 September 2016, the prosecutor issued an order to AICC, signed by Mr Mooney, requiring that the AICC "cease all building works".
On 14 December 2016, the prosecutor approved the modification application referred to in [31] and which had been sought on 28 April 2016 in respect of the "closure of the atrium well", or the in-filling of the voids.
On 1 June 2017, Bradley Ferguson, an officer of the prosecutor, interviewed Mr Khan. This interview was followed by other interviews, as a result of which Mr Ferguson was provided with a bundle of documents making clear the alleged involvement of each of the defendants in the works.
Mr Ferguson formed the view from this correspondence and the interviews that Mr Oueik was the person who carried out the building works and employed contractors, that Mr Younan had been retained by Mr Oueik as the site supervisor, and that H & M Renovations Pty Ltd was the company which was hired to carry out the works.
On 3 May 2018, these proceedings were commenced.

Evidence

The prosecutor read a number of affidavits, with extensive background documentary material attached: an affidavit of Glenn Dawes, dated 20 July 2018; three affidavits of Mr Mooney, dated 20 April 2018, 12 July 2018, and 19 July 2018 respectively; an affidavit of Asadujjaman Md, which was undated but filed 3 May 2018; an affidavit of Mohammed Waniya, dated 11 April 2018; an affidavit of Mohammed Azeem, dated 11 April 2018; an affidavit of Mr Khan, dated 11 April 2018; and an affidavit of Mr Ferguson, which was undated but filed 3 May 2018.
In addition to their affidavit evidence, Mr Khan, Mr Ferguson, Mr Mooney, and Mr Dawes gave oral evidence at the hearing.
The defendants tendered a number of documents which were provided to the prosecutors' witnesses during their respective cross-examinations. These comprised various emails and other correspondence, a progress drawdown report, plans, and a Development Application Assessment Report.
During his cross-exemption of Mr Dawes, Mr Tomasetti, senior counsel for the defendants, made reference to an email sent on 10 March 2016 by Nasr Atie, an employee of CADPlans retained by the AICC, to Mr Dawes. A copy of the email was tendered. It relevantly provides: Subject: 43-47 HARROW RD AUBURN DA 398/2008/D Dear Glenn. I tried to contact you regarding the above job yesterday. The client has instructed me to organise a meeting with yourself and Glenn Francis to discuss the outstanding issues with this job and to work out a course of action going forward to finalise this project. The issues the client would like to discuss with you and resolve are as follows: 1. The reinstatement of the void areas as noted on the approved issue C of the architectural drawing D06 and D07. - as this was a major part of this section 96 application and it seems that the justification was completely disregarded. Do we need to lodge another Section 96 application for the council to reconsider the closure of the void areas with further justification for the closure? 2. The requirements for the building certificate application that needs to be lodged on the works completed to date. Can a building certificate application be lodged on the works to date given that the approved void reinstatement is already built enclosed. Also if a section 96 application is going to be lodged can we submit a building certificate application concurrently. Please let me know when you are available to meet as the client also has some other minor issues to discuss and is keen to finalise this project. Kind regards, Nasr Atie

Conduct of the hearing and concessions

When the proceedings came before the Court, the s 125(3A) Summonses were still on foot, notwithstanding the prosecutor's earlier concession (at a preliminary mention before Molesworth AJ) that they would have to be repleaded (because s 125(3A) of the EPA Act came into force after the date of the alleged offences). The prosecutor maintained that the necessity for the s 125(3A) Summonses arose because the defendants had earlier maintained that each of the s 125(1) Summonses, which alleged offences contrary to s 125(1) of the EPA Act as principal and, in the alternative, as an accessory, was duplicitous.
However, on the first day of hearing, the defendants advised that, on reflection, they were of the view that the fact that each of the s 125(1) Summonses alleged an accessorial offence in the alternative, did not make those summonses duplicitous. This concession had the effect of making the s 125(3A) Summonses otiose, and the Court accordingly entered orders by consent on 27 August 2018 dismissing the 125(3A) Summonses and reserving the question of costs.
After the defendants' cross-examination of Mr Khan, Mr Ferguson, Mr Mooney, and Mr Dawes on the second day of hearing, 28 August 2018, the prosecutor advised that in response to the evidence of those witnesses, it was accepted that evidence of the alleged offence, but not of the identity of the defendants, came to the attention of an investigation officer prior to 3 May 2016; that is, more than two years before the proceedings were commenced.
Mr Cheshire, senior counsel for the prosecutor, made the concession as follows (Tcpt, 28 August 2018, p 164 (21-39)): CHESHIRE: Your Honour, thank you for the time. In light of the evidence that has been given this afternoon, I have a concession to make which is that at least by 22 March 2016 evidence of an offence had come to the attention of an investigation officer, that offence being the offence with which each of the defendants is charged. And so on my case at the law what is still missing is I say the required element that evidence of the identity of the individual in connection with that offence also needs to have come to the attention of the investigation officer. As to the other parts of the evidence coming to the attention of the officer, your Honour need not be troubled with that because 22 March is more than two years prior to the commencement of the proceedings. On that basis I do not need to call any further evidence and do not seek to do so. There then will be an issue of law as to whether the identity of the relevant defendant is a required aspect of what needs to come to the attention within s 127(5A) and also then an analysis of the evidence in relation to that issue assuming that I am successful on it as a matter of law.
The prosecutor made this concession at least substantially due to the email extracted above at [44], and tendered during the cross-examination of Mr Dawes. The email contemplates the "requirements for the building certificate application that needs to be lodged on the works completed to date". This comment is indicative that a building certificate application would be required to be lodged because a construction certificate had not been obtained.
To the extent that there is any doubt (for example, because the building certificate referred to in the email may have been required to regularise the in-filling of the voids which had taken place despite not having received development consent), it is instructive to see Mr Dawes' notes about the meeting of 22 March 2016, contained in an email of that date which is included in the exhibit to Mr Ferguson's affidavit. The meeting notes relevantly provide: … Items Discussed … x Applicant sought advice on lodging a BC for works completed unlawfully (however approved under DA-398/2008/D) not relating to the void spaces. Council officers advised that BCs could be considered for works (with development approval covered by DA-398/2008/D) which did not relate to the void spaces. Any BC would have to specifically pinpoint the works it was seeking to cover. …
On the basis of that evidence, I am satisfied that the prosecutor's concession was properly made and that Mr Dawes had evidence that an offence had been committed relating to the commencement of development without a construction certificate.
In response to my question as to what precisely remained in dispute, Mr Cheshire (at Tcpt, 28 August 2018, pp 164-165) explained that the remaining dispute centred upon whether s 127(5A) of the EPA Act required that the evidence which came to the attention of an investigation officer articulated the precise identity of the defendants. Mr Cheshire said that, even if he was successful in that legal argument, he envisaged that Mr Tomasetti, senior counsel for the defendants, would make the submission that this was, in any event, established on the evidence.
Accordingly, the argument before the Court proceeded on a narrower basis than might otherwise have been the case, the necessity for argument about whether evidence of an offence came to the attention of an investigation officer having been obviated.

Whether the proceedings were commenced out of time

At the time of the alleged offences and until it was transposed to s 9.57 on 1 March 2018, s 127 of the EPA Act relevantly provided: 127 Proceedings for offences … (5) Proceedings for an offence against this Act or the regulations may be commenced not later than 2 years after the offence was alleged to be committed. (5A) However, proceedings for any such offence may also be commenced within, but not later than, 2 years after the date on which evidence of the alleged offence first came to the attention of an authorised officer within the meaning of Division 2C of Part 6. (5B) If subsection (5A) is relied on for the purpose of commencing proceedings for an offence, the information or application must contain particulars of the date on which evidence of the offence first came to the attention of an authorised officer and need not contain particulars of the date on which the offence was committed. The date on which evidence first came to the attention of an authorised officer is the date specified in the information or application, unless the contrary is established. (5C) This section applies despite anything in the Criminal Procedure Act 1986 or any other Act. …
The present proceedings were commenced on 3 May 2018. Therefore the prosecutor must rely upon s 127(5A), the time limit provided by s 127(5) having been exceeded. It is relevantly agreed that each of Mr Ferguson, Mr Mooney, and Mr Dawes was an authorised officer for the purposes of s 127(5A) at the time of the offences and thereafter.
It is further agreed, after the concession of the prosecutor, that "at least by 22 March 2016, evidence of an offence had come to the attention of an investigation officer, that offence being the offence with which each of the defendants is charged". However, as I have explained, the prosecutor contends that before the time period provided by s 127(5A) begins, it is necessary that the identity of the defendant or defendants also comes to the attention of an investigation officer.
The prosecutor accepts that, ordinarily, it would bear the onus of establishing beyond reasonable doubt that the proceedings were brought within time. However, given the wording of s 127(5B) of the EPA Act, which states that the "date on which evidence first came to the attention of an authorised officer is the date specified in the information or application, unless the contrary is established", the parties agree, and I find, that the onus of establishing that the proceedings were commenced out of time is borne by the defendants. That onus need not be discharged beyond reasonable doubt, but rather to the civil standard of the balance of probabilities.

Submissions

The prosecutor submits that it is crucial to note that s 127(5A) of the EPA Act speaks in terms of "evidence of the alleged offence" as opposed to evidence of an alleged offence. The prosecutor submits that the identification of the alleged offence imports the identity of the alleged offender.
The prosecutor notes that s 81A of the EPA Act is not, of itself, an offence provision. It draws attention to the wording of s 125(1) of the Act, which provides: 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 Director-General, 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 (emphasis added). …
The prosecutor submits that when regard is had to the fact that s 125(1) of the EPA Act notes that "a person" is required for the offence, s 127(5A) should be read as requiring that evidence of each element of the offence, including the identity of the offender, must come to the attention of an authorised officer.
The prosecutor submits that once this is accepted, there may be cascading times in which proceedings for an offence can be brought under s 127(5A) in circumstances where there are multiple offenders and their identities are discovered by an authorised officer at different times.
The defendants submit that the ordinary principles of statutory construction show that "evidence of the alleged offence" within the meaning of s 127(5A) of the EPA Act does not include "evidence of the alleged offender". The defendants submit that there is a clear difference in common parlance between the words "offence" and "offender".
The defendants submit that the distinction between "offence" and "offender" is preserved in the context of the EPA Act as a whole, noting that: 1. Provisions which describe an "offender" being guilty of an "offence" include ss 125(1), 125A(2), 125B(2), 125C(2), 125(D), and 126(3); 2. Section 127(7) distinguishes between the "matter constituting the offence" and persons who may have committed "the offence". If an order is made by the Court under s 124 remedying the offence, no person can thereafter be prosecuted in respect of the offence; and 3. Section 127A(4) provides that "if the amount of penalty described for an alleged offence is paid under this section, no person is liable to any further proceedings for the alleged offence", clearly distinguishing between payment of the penalty by the offender and the actual offence.
The defendants submit that when one reads the words of s 81A of the EPA Act, they are in the passive tense and show that an offence is committed when erection of a building is commenced without a construction certificate having been obtained, no matter the identity of the person who has commenced the construction.
The defendants submit that there may be some offences where the identity of the alleged offender is an element required as part of the "evidence of the alleged offence", but that the Court need not finally determine this. The defendants refer to one possible example in s 85A(4) of the EPA Act which provides: 85A Process for obtaining complying development certificates … (4) A council or accredited certifier must not refuse to issue a complying development certificate on the ground that any building product or system relating to the development does not comply with a requirement of the Building Code of Australia if the building product or system is accredited in respect of that requirement in accordance with the regulations. …
In the context of s 85A(4) of the EPA Act, the defendants submit that the conduct is expressed in the active tense and is directed at a particular person: a council or an accredited certifier. The defendants contrast this to the language of s 81A, which they submit does not depend upon the identity of any particular offender.
The defendants submit that the prosecutor's suggested interpretation would give rise to absurd consequences in that years after the conviction of a builder pursuant to a breach of s 81A, an authorised officer could stumble upon or be given evidence of another person's involvement which would have the consequence of time starting again and a council being able to bring proceedings against the new alleged offender. The defendants submit that this is not what is intended by s 127.
The defendants submit that even if it is accepted by the Court that the identity of the offender is a matter in respect of which evidence was required to come to the attention of an authorised officer, this is satisfied on the balance of probabilities in respect of each of Mr Mooney, Mr Dawes, and Mr Francis on the evidence before the Court.
In response, the prosecutor submits that the defendants' submissions do not properly engage with the distinction between "an offence" and "the alleged offence" for the purposes of s 127(5A).
In relation to the defendants' alternative argument that evidence of the identity of the alleged offenders came to the attention of an investigation officer in any event, the prosecutor submits that s 127(5A) identifies "an officer" and that the approach of the defendants impermissibly seeks to "aggregate" evidence which came to the attention of different officers when what is required by the legislation is that evidence of all of the elements come to the attention of a single officer.

Consideration

In resolving the meaning of s 127(5A), the ordinary approach to statutory interpretation applies. The now well-accepted approach was recently considered in Hunter Quarries Pty Ltd v Alexandra Mexon as Administrator for the Estate of the Late Ryan Messenger [2018] NSWCA 178, where Payne JA, with whom Basten and Gleeson JJA, Sackville AJA, and Simpson AJA agreed, said at [57]: The relevant principles of statutory construction were not controversial. The parties referred to Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 at [47], where the plurality emphasised that construction must begin with a consideration of the text itself and while the language employed is the surest guide, its meaning may require consideration of the context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy. The importance of context, including the general purpose and policy of the provision has subsequently been emphasised by the High Court: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32 at [41]; Federal Commissioner of Taxation v Consolidated Media Holding Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39]; SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 91 ALJR 936 at [14] and [25]-[39].
However, the importance of context does not detract from the centrality of the text and the principle that each word should be given work to do: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 ('Project Blue Sky') at 381-382. Where the clear words of a statute demand a particular outcome, the fact that the outcome may appear inconvenient will not, in itself, be determinative.
In the present case, s 127(5A) provides an exception to the usual rule contained in s 127(5) that proceedings must be commenced within two years of the alleged offence. The exception depends upon evidence of the alleged offence coming to the attention of an authorised officer. In the present circumstances, the relevant inquiry for the Court is directed towards what is meant by "evidence of the alleged offence".
I do not accept the submission of the prosecutor, noted at [58] above, that the word "the" imports consideration of the alleged offender. The provision speaks in terms of the alleged offence because it is referring to the specific offence in respect of which the ordinary rule that proceedings must be commenced within two years has been relaxed.
The fact that the charge must be brought against a specific person is clearly the case with all criminal offences but does not mean that evidence of the identity of the offender is part of the evidence of the alleged offence which must come to the attention of the prosecutor.
For that reason, contrary to the prosecutor's submission noted at [60] above, I do not find the fact that s 125(1) includes reference to "a person" of great assistance. Any offence under the EPA Act is necessarily committed by a person (including any corporate "person"). As the defendants submit, s 81A does not refer to the particular person who contravened the Act as being relevant to the particular contravention. In those circumstances, s 125(1) merely recognises that for any breach of the EPA Act in respect of which charges are brought, a person must be responsible.
The ordinary meaning of the word "offence" in the present context is a crime. In law, it imports the notion of elements which must be made out beyond a reasonable doubt in order for an accused person to be found guilty. In neither sense does it import the notion of the particular offender, although obviously any criminal proceeding depends upon an identified defendant in respect of whom the elements making up the alleged offence are sought to be made out.
I find that "evidence of the alleged offence" on its face means evidence capable of indicating that an offence has been committed. In this circumstance, it would be insufficient merely to have evidence that construction works had commenced. An investigation officer would also need to have evidence brought to his or her attention capable of showing that a construction certificate had not been obtained. However once evidence of both of these elements is brought to his or her attention, and assuming the time limit provided s 127(5) has expired, the time limit provided by s 127(5A) is engaged. As I have explained, and in light of the prosecutor's concession, this threshold has been satisfied in the present case.
Although not determinative given my finding that this is the effect of the ordinary language, I am comforted in this construction by the fact that this appears a sensible operation of the section in the context of the statute.
In this regard, it is to be observed that a two-year time limit ordinarily applies from the time at which the offence is committed. Where s 127(5) applies, the two-year period includes the time it takes a council or prosecuting authority to conduct its investigations (including identifying the defendant) and prepare the matter for trial. Having regard to the ordinary position, one would expect that when the exception provided for by s 127(5A) applies, the investigation and preparation is also to be completed within the two-year period. Such investigation would include any attempt to identify the persons responsible for the alleged offence.
The extension of time provided by s 127(5A) operates to extend the time in which a prosecutor is able to bring proceedings where the actual commission of the offence, as opposed to the identity of the offender, does not come to the attention of the prosecutor's attention until sometime later.
It does not permit the prosecutor from holding off investigating the offence, thereby failing to discover the identity of the person responsible and extending the period of time in which it is able to commence the proceedings. It would be unusual if s 127(5A) did have this effect given that the intention of the time limit included in s 127(5) is presumably to encourage prosecuting authorities to bring proceedings for a breach of the EPA Act as quickly as possible and create certainty in that regard.
Provisions setting such time limits are not uncommon. For example, s 179(1) of the Criminal Procedure Act 1986 (NSW) provides for a time limit of six months for the commencement of proceedings for summary offences, unless another law or relevant exception applies.
For those reasons, I consider the interpretation of s 127(5A) which I have adopted, accords not only with the natural meaning of the text but also gives effect to harmonious goals when read with the other relevant provisions of the EPA Act: Project Blue Sky at 382.
Accordingly, applying s 127(5A) to the facts of the case, and having regard to the properly made concession of the prosecutor, the proceedings were commenced out of time and must therefore be dismissed: Willoughby City Council v Screnci [2015] NSWLEC 192; (2015) 213 LGERA 238 at [54].

Whether the Court has jurisdiction to hear the charges in relation to accessorial liability

Given my finding that the proceedings were commenced out of time, it is strictly unnecessary to consider whether the Court has jurisdiction to hear the charges in relation to accessorial liability. However, given that the matter raises an important legal question and was fully argued before the Court, I proceed to consider the parties' submissions.
The defendants submit that the accessorial liability charge is not available to the prosecutor. As I have explained, it is common ground that s 125(3A) of the EPA Act is not a power to charge the defendants in relation to their alleged aiding, abetting or procuring of an offence against s 125(1) of the EPA Act, because s 125(3A) was not enacted at the time of the relevant alleged offences. However, the prosecutor submits that the defendants can properly be charged (as the prosecutor submits they have been in each of the s 125(1) Summonses) with the accessorial offences pursuant to the common law and that the Court has jurisdiction to hear them.
The defendants submit that the Court, although a superior court of record, is nevertheless a Court of limited statutory jurisdiction: National Parks & Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 at 578. It follows from this that the Court only has jurisdiction with respect to an offence where it is specifically granted jurisdiction by statute.
In order to understand the submissions made by the defendants on this point, some legislative history is relevant.
When this Court was created, the Land and Environment Court Act 1979 (NSW) ('LEC Act') contained s 55, which provided: 55 Aiding, abetting, counselling or procuring the commission of offences A person who aids, abets, counsels or procures the commission by another person of an offence punishable in the summary jurisdiction of the Court is guilty of the like offence and may be tried at the same time as or before or after the trial of the principal offender.
Section 55 of the LEC Act was repealed on 7 July 2003 and not replaced at that time. Also in 2003, s 351B was added to the Crimes Act 1900 (NSW) ('Crimes Act'). It provided: 351B Aiders and abettors punishable as principals (1) Every person who aids, abets, counsels or procures the commission of any offence punishable on summary conviction may be proceeded against and convicted together with or before or after the conviction of the principal offender. (2) On conviction any such person is liable to the penalty and punishment to which the person would have been liable had the person been the principal offender. (3) This section applies to offences committed before or after the commencement of this section. (4) This section applies to an indictable offence that is being dealt with summarily.
Section 3 of the Crimes Act provides: 3 Application of certain provisions of Act The Parts and sections mentioned in Schedule 2, so far as their provisions can be applied, shall be in force with respect to all offences, whether at Common Law or by Statute, whensoever committed and in whatsoever Court tried.
However, s 351B is not mentioned in Sch 2 of the Crimes Act with the result that it does not extend to offences tried in this Court. This is now accepted by the prosecutor.
As noted at [8] above, s 125(3A) of the EPA Act came into force on 31 July 2015. The defendants submit that from the repeal of s 55 of the LEC Act on 7 July 2003 until the enactment of s 125(3A), the Court was without jurisdiction to hear criminal charges brought under s 125 of the EPA Act in respect of accessorial liability.
The operation of s 55 of the LEC Act was explained by Lloyd J in Mosman Municipal Council v Waratah Village Partners Pty Ltd [2002] NSWLEC 19; (2002) 118 LGERA 460 ('Waratah'). At [8]-[9], his Honour said: [8] In Giorgianni v The Queen (1985) 156 CLR 473, it was held that s 351 of the Crimes Act 1900, (which is to the same effect as s 55 of the Court Act), is only declaratory of the common law position that anyone who "would have been a principal in the second degree, or an accessory, was a principal offender and was treated as if he had taken the same part as the active perpetrator of the facts constituting the offence" (per Gibbs CJ at 480-481). Wilson, Deane and Dawson JJ stated the position as follows (at 500): That section merely restates the common law by providing, in effect, that in proceeding against a secondary participant in a misdemeanour, no distinction is to be drawn between the principal offender and the secondary participant. [9] The common law doctrine of secondary participation meant that a secondary party to a misdemeanour may be convicted on an information or indictment as if he committed the offence as principal (Giorgianni, at 491, per Mason J) (italics in original)…
At [14]-[16], his Honour explained his reasons for finding that the summons in Waratah was not duplicitous for charging the defendant with the principal offence and, in the alternative, for an offence of accessorial liability: [14] There is, in my opinion, no need for the prosecutor to elect. At common law, a defendant was and is able to be prosecuted as a principal offender even though he might be a secondary participant. Section 55 of the Court Act does not change the offence or create a separate offence (Burrell v Jacenko (1998) 99 LGERA 173 at 176, which was approved by the Court of Appeal in Rao v Canterbury City Council (2000) 112 LGERA 360 at 366). Moreover, as Mason P said in Rao (at 366): A simple indictment for murder can be basis for a Crown case that proceeds by alternative routes, including the route of accessorial liability. [15] There are no alternative offences here. The defendants are each charged with a single offence against s 125(1) of the EP&A Act, and the precise forbidden act being that which is set out in s 76A(1) as noted above. [16] In the present case the summonses are adequate and sufficient to identify the essential factual ingredients of the offence. The particulars furnished by the prosecutor make plain the ways in which guilt is sought to be proved. There is no defect in either the substance or the form of the summonses, and neither are bad for duplicity. Whilst it is true, as Mr Hemmings submits, that different considerations may arise on sentence depending on whether the defendant is guilty as a principal or an accessory, such considerations would no doubt be taken into consideration by a sentencing judge (italics in original).
The defendants do not cavil with the reasoning of Lloyd J in Waratah, but submit that his Honour's finding depended upon s 55 of the LEC Act being in force.
Contrary to the submission of the defendants, I do not consider that s 55 of the LEC Act was determinative in Waratah. Whilst it is true, and indeed trite, that the Court is a court of limited jurisdiction, once it is accepted that the accessorial liability offence is not a separate offence from the principal offence, only jurisdiction to hear the principal offence need be conferred upon the Court.
I do not accept that the common law principle referred to by the High Court in Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29 ('Giorgianni') needed to be specifically conferred upon this Court by statute in order to apply. The consequence of that would be that common law principles such as the doctrines of coincidence, standing and even precedence would not apply in this Court unless a statute specifically incorporated them.
The defendants referred to the comments of Sackville AJA in Burwood Council v Ralan Burwood Pty Ltd (No 3) [2014] NSWCA 404 ('Ralan Burwood') at [140]: …Wilkie makes it clear that the question of whether a person has carried out a development in breach of the EPA, for the purposes of the application of ss 123 and 124 of the EPA Act, is not to be decided by importing notions of accessorial liability employed in other areas of the law. The primary Judge erred by applying a test of knowing involvement in a contravention. That test is derived from Yorke v Lucas [1985] HCA 65; 158 CLR 661 at 670, a case decided under s 75B of the Trade Practices Act 1974 (Cth). As Wilkie makes clear (at [31]), the language of ss 123 and 124 of the EPA Act contains no warrant for importing such a test.
I do not consider that Ralan Burwood assists the defendants. The reasoning of Sackville AJA was specifically directed towards the operation of ss 123 and 124 of the EPA Act which deal with civil remedies for breaches of the Act rather than the creation of criminal offences. In any event, Ralan Burwood does not stand for the proposition that common law principles should not be applied in this Court.
Whilst it is true that the fact that the Court had jurisdiction in respect of accessorial liability offences notwithstanding the repeal of s 55 of the LEC Act makes the addition of s 125(3A) to the EPA Act at least on one view unnecessary, I do not consider this to be a determinative consideration. Section 125(3A) may have been included by the legislature for the avoidance of doubt, or merely to provide codification of the common law.
Such codification of the common law, although unnecessary at least in respect of the expansion of jurisdiction, is not uncommon. The same analysis could be applied to s 351B of the Crimes Act, and was applied to s 351 of the Crimes Act by the High Court in Giorgianni. At 500, Wilson, Deane, and Dawson JJ explained that s 351 "merely restates the common law".
Therefore I find that the prosecutor was able to charge the defendants with the offence of accessorial liability, and that, had the proceedings been commenced in time, the Court would have had jurisdiction to hear those charges.

Appropriate disposition

Given my finding that the proceedings were commenced out of time, they must be dismissed. Although an order for costs against a prosecutor is unusual, as I have not heard the parties on costs and was specifically requested to reserve costs in respect of the s 125(3A) Summonses, I shall make no order as to costs, pending any application the parties may wish to make.

In proceedings 2018/00139316: 1. The summons is dismissed. 2. Costs are reserved.

In proceedings 2018/00139368: 1. The summons is dismissed. 2. Costs are reserved.

In proceedings 2018/00139380: 1. The summons is dismissed. 2. Costs are reserved.

On 27 August 2018, the Court ordered that:

In proceedings 2018/00139360: 1. The summons is dismissed. 2. Costs are reserved.

In proceedings 2018/00139374: 1. The summons is dismissed. 2. Costs are reserved.

In proceedings 2018/00139375: 1. The summons is dismissed. 2. Costs are reserved.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 September 2018

Trade Practices Act 1974(Cth)

Environmental Planning and Assessment Act 1979(NSW)ss 9.57, 81A, 85A, 125, 127

Crimes Act 1900(NSW)ss 3, 351, 351B

(2002) 118 LGERA 460

(2015) 213 LGERA 238

(2000) 112 LGERA 360

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