Director General NSW Department of Industry and Investment v Mato Investments Pty Ltd

The questions raised by the Stated Case 5The questions asked by the primary judge in the Stated Case were as follows: "1. On the facts as found, was it open to me to find that there was no development consent 'in force' with respect to the subject land during the charge period within the meaning of s 76A(1) of the Environmental Planning and Assessment Act 1979? 2. Did I err in finding that I could not consider whether the element of knowledge for the purposes of s 220ZD(1) of the Fisheries Management Act 1994 was to be conclusively presumed by application of s 220ZD(2)(a) of that Act? 3. On the facts as found, was I required to conclusively presume that each of Mato Investments Pty Ltd and Dzeladin Ceman knew that the land concerned was the habitat of the trout cod, silver perch and the Lower Murray EEC by reason of the operation of s 220ZD(2) of the Fisheries Management Act 1994 either pursuant to paragraph (a) or paragraph (b) of that provision?"

The relevant legislation 6The following provisions of the EPA Act, the Environmental Planning and Assessment Regulation 2000 (NSW) (the Regulation) and of the Fisheries Act are relevant to an understanding of the issues raised by the Stated Case:

(a) The EPA Act and Regulation 7Section 76A(1) of the EPA Act is in the following terms: "76A Development that needs consent (1) GeneralIf 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." 8Division 2 of Pt 4 of the EPA Act sets out the steps to be taken to obtain development consent when it is required. Section 78A provides for the making of an application for development consent whilst ss 79-79C provide for the procedures to be adopted by the consent authority in considering whether to grant consent. 9Section 80 of the EPA Act deals with the determination of an application for development consent. So far as relevant it provides as follows: "80 Determination (1) GeneralA consent authority is to determine a development application by: (a) granting consent to the application, either unconditionally or subject to conditions, or (b) refusing consent to the application. (2) Despite subsection (1), the consent authority must refuse an application for development, being the subdivision of land, that would, if carried out, result in a contravention of this Act, an environmental planning instrument or the regulations, whether arising in relation to that or any other development. (3) 'Deferred commencement' consentA development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority, in accordance with the regulations, as to any matter specified in the condition. Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition." 10Section 81 of the EPA Act provides for the notification of the grant of consent. It is in the following terms: "81 Post-determination notification (1) The consent authority must, in accordance with the regulations, notify its determination of a development application to: (a) the applicant, and (b) in the case of a development application for consent to carry out designated development, each person who made a submission under section 79 (5), and (c) such other persons as are required by the regulations to be notified of the determination of the development application. (2) If the consent authority is not the council, the consent authority must notify the council of its determination. (3) In the case of a development application for consent to carry out designated development, the consent authority must also notify each person who made a submission under section 79 (5) by way of objection of the person's rights to appeal against the determination and of the applicant's rights to appeal against the determination." 11Section 83 of the EPA Act provides for the date from which consent operates. Sections 83(1) and 83(2) are in the following terms: "83 Date from which consent operates (1) Subject to subsections (2) and (3), if a determination is made by the granting of consent, the consent becomes effective and operates from: (a) except as provided in paragraph (b)-the date that is endorsed on the notice given to the applicant in accordance with section 81 (1) of the determination of the development application or under section 82D(4), or (b) in the case of designated development to which an objection has been made in accordance with section 79 (5): (i) if consent was granted under section 80 (6) or (7) following the holding of a review that includes a public hearing by the Planning Assessment Commission-the date that is endorsed on the notice of the determination of the development application given to the applicant in accordance with section 81 (1), or (ii) in any other case-the expiration of 28 days from the date that is endorsed on the notice of the determination of the development application given to the applicant in accordance with section 81 (1). (2) Subject to subsection (3), if a determination is made by the granting of consent or the granting of consent subject to conditions, and an appeal has been made under section 97(1) or 98, the consent: (a) ceases to be, or does not become, effective pursuant to subsection (1), and (b) becomes effective and operates from the date of the determination of that appeal, except where that decision is to refuse development consent." 12Section 82A of the EPA Act provides that, subject to certain exceptions when the consent authority is a Council, an applicant may request a review of the decision. Section 97 provides for a right of appeal against the determination of the consent authority within 6 months after notice has been received in accordance with the Regulation, or it is determined in accordance with the time specified in the Regulation that the consent authority has refused consent. 13Clause 100 of the Regulation, made under the EPA Act, provides for the form of notification of the consent. Subclauses 100(1) and 100(4) of the Regulation are relevant for the purpose of the proceedings. They are in the following terms: "100(1) For the purposes of section 81 (1) of the Act, a notice of the determination of a development application must contain the following information: (a) whether the application has been granted or refused, (b) if the application has been granted, the terms of any conditions (including conditions prescribed under section 80A (11) of the Act) on which it has been granted, (c) if the application has been refused, or granted subject to conditions (other than conditions prescribed under section 80A (11) of the Act), the consent authority's reasons for the refusal or for the imposition of those conditions, (c1) whether the applicant has the right to request a review of the determination under section 82A of the Act, ... (d) the date on which the determination was made, (e) the date from which any development consent that is granted operates, ... (4) In the case of a development consent granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority, or a person specified by the consent authority, as to any matter specified in the condition: (a) the date from which the consent operates must not be endorsed on the notice of determination, and (b) if the applicant satisfies the consent authority, or person, as to the matter, the consent authority must give notice to the applicant of the date from which the consent operates." 14Clause 102 of the Regulation provides for notification of the determination of consent of an application for development consent to be sent to those persons entitled to receive it within 14 days of the date of determination. The Regulation requires that for the purposes of s 81(1)(c) of the EPA Act any person who has made a submission in respect of the application for development consent is required to be notified. 15Section 101 of the EPA Act provides as follows: "101 Validity of development consents and complying development certificates If public notice of the granting of a consent or a complying development certificate is given in accordance with the regulations by a consent authority or an accredited certifier, the validity of the consent or certificate cannot be questioned in any legal proceedings except those commenced in the Court by any person at any time before the expiration of 3 months from the date on which public notice was so given."

(b) The Fisheries Act 16Section 220ZD of the Fisheries Act is in the following terms: "220ZD Damage to habitat of threatened species, population or ecological community (1) A person must not, by an act or omission, do anything that causes damage to any habitat (other than critical habitat) of a threatened species, population or ecological community if the person knows that the area concerned is habitat of that kind. Maximum penalty: 1,000 penalty units or imprisonment for 1 year, or both. (2) In proceedings for an offence under this section in respect of an act or an omission of a person that causes damage to any habitat (other than critical habitat) of a threatened species, population or ecological community, it is to be conclusively presumed that the person knew that the land concerned was habitat of that kind if it is established that: (a) the act or omission occurred in the course of the carrying out of development or an activity for which development consent under Part 4 of the Environmental Planning and Assessment Act 1979, or an approval to which Part 5 of that Act applies, was required but not obtained, or (b) the act or omission constituted a failure to comply with any such development consent or approval."

(a) Factual findings 17The Stated Case records the following factual findings made by the primary judge: (a)Mato was a proprietor of a rural property known as Kunanadgee, on the bank of the Murray River on which it was constructing an Eco Tourist Resort (the Resort) pursuant to a development consent granted by the Corowa Shire Council (the Council). (b)Mr Ceman was one of the directors of Mato. (c)The subject waterways formed part of the habitat of a threatened ecological community within the meaning of the Fisheries Act, namely the Lower Murray EEC, and part of the habitat of trout cod and silver perch, each of which are threatened species of fish within the meaning of the Fisheries Act. (d)Development consent for the Resort was granted by the Council on 29 May 2007 (the Consent). Condition 16 of the Consent was in the following terms: "No snags (large woody debris on the bank or in the water) are to be moved, relocated or removed either at the time of construction or in the future without consultation with DPI." (e)Mr Michael Hanger was engaged by Mato to carry out clean-up works at Kunanadgee. (f)On 3 August 2007 there was a meeting of the shareholders of Mato attended by Mr Ceman. A Mr Smit advised he had spoken to a colleague who was available to clear up the site around the Murray River and creek areas. (g)At some time prior to 16 August 2007 Mr Hanger attended a meeting at the Kunanadgee site with Mr Smit and Mr Ceman to discuss the work to be carried out by him. Mr Ceman told Mr Hanger to clean up deadwood along the top of the banks of the Murray River and around the Unnamed Creek. He instructed Mr Hanger to remove trees from the Unnamed Creek but did not tell him to remove or not remove snags from the Murray River. (h)On 16 August 2007 Mr Hanger attended the office of Mr Coomes, an independent town planning consultant employed by Mato. Mr Hanger said he had been onsite with Mr Smit and Mr Ceman and he had a list of tasks that Mr Smit had asked Mr Coomes to type up. Mr Coomes typed up a scope of work document which included the provision "Remove any major dead trees in the river, subject to being able to do so". (i)The scope of works document was emailed to Mr Smit by Mr Coomes who told Mr Smit that removal of trees from the river was not in accordance with the Consent. (j)From 5-16 October 2007 a very large quantity of woody debris was removed from the subject waterways. The removal of the debris caused danger to the habitats of the trout cod, the silver perch and the Lower Murray EEC. 18The Stated Case says that by reason of the instructions conveyed by Mr Ceman to Mr Hanger on 16 August 2007 the primary judge was satisfied that Mr Ceman caused the damage to the habitats of "the trout cod, the silver perch or [sic] the Lower Murray EEC" by the removal of snags and large woody debris from the Unnamed Creek. However, the primary judge was not satisfied Mr Ceman caused the damage to their habitat occasioned by the removal of snags and large woody debris from the Murray River or the Big River Billabong. The Stated Case also records the primary judge finding that Mato was liable for Mr Ceman's actions in causing Mr Hanger to clear snags from the Unnamed Creek.

(b) Findings as to whether there was a development consent in force 19The conclusion of the primary judge on this issue is the subject of Question 1 of the Stated Case. 20The Stated Case records that there were two notices of determination of the granting of Consent, in different terms, both dated 30 May 2007. The first of the notices was signed by the General Manager of the Council, Mr Corcoran (the Corcoran Notice). It reflected the Council's resolution approving the development and contained 65 conditions including Condition 16 (referred to at par 17 above). 21The other notice was signed by Mr Bobby Parr, the Council's Director of Environmental Services on behalf of the General Manager (the Parr Notice). The Parr Notice contained the 65 conditions in the Corcoran Notice but unlike the Corcoran Notice, identified conditions 3 and 4 as deferred commencement conditions. The Parr Notice is an annexure to the Stated Case and so far as relevant was in the following terms: "DEVELOPMENT APPLICATION NO. 2007/56NOTICE OF DETERMINATION OF DEVELOPMENT APPLICATION issued under the Environmental Planning and Assessment Act 1979 Section 81(1)(a) ... Determination: Consent granted subject to conditions described below. Consent to Operate from: 30 MAY 2007 Consent to Lapse on: 30 MAY 2012 'DEFERRED COMMENCEMENT' - This development consent is not to operate until ITEMS 3 AND 4 of the CONDITIONS have been complied with to Council satisfaction. CONDITIONS ... 3. Prior to the issue of a construction certificate and/or commencement of any works including design, building and engineering works, the applicant is to submit to Council documentation from Department of Natural Resources that approval has been granted for the existing Water Access Licence to be subdivided and a portion (9 ML) converted to High Security. 4. Prior to the issue of a construction certificate and/or commencement of any works including design, building and engineering works, the applicant is to submit to Council documentation from Country Energy and Telstra certifying the availability and provision of electricity and telecommunication services to the site for the purpose of eco-tourism and associated infrastructure usage. ... 16. No snags (large woody debris on the bank or in the water) are to be moved, relocated or removed either at the time of construction or in the future without consultation with DPL." 22The Stated Case says that Mr Parr signed the Parr Notice after changing the terms of the Consent to impose the deferred commencement conditions, something which his delegated authority did not permit him to do. 23The Stated Case also says that the primary judge found that the Parr Notice was sent to Mr Bennett, a director of Mato, shortly after 30 May 2007 and also to the government authorities required to be notified under s 81(1)(c) of the EPA Act on 22 October 2007. It records that Mr Bennett believed that the Consent was subject to the deferred commencement conditions and that he acted accordingly. The primary judge found that the Parr Notice was issued in purported but unsuccessful compliance with s 81(1). 24The Stated Case records the primary judge was satisfied that the Corcoran Notice was not the version of consent notified under s 81(1) of the EPA Act to Mr Bennett. 25The Stated Case also records the conclusion of the primary judge that although a commencement date was endorsed on the Parr Notice, this was not done in accordance with the notification under s 81(1) of the EPA Act and the time for commencement of a deferred consent contained in s 80(3). Further being a deferred commencement consent, it could not and did not commence on 30 May 2007. 26The Stated Case records that the primary judge concluded that the actual determination of the consent authority is distinct from the notification of the determination of the consent authority under s 81(1) of the EPA Act and where the s 81 notice does not reflect the Council's decision then the notice is invalid so the consent does not become operational for the purpose of s 83(1). 27The Stated Case records the conclusion of the primary judge that there was no development consent in force during the period and there was therefore no breach of Condition 16.

(c) Presumption of knowledge under s 220ZD(2)(a) of the Fisheries Act 28This is the subject of Question 2 of the Stated Case. 29The Stated Case records that the case, as particularised in the summons, was that knowledge of the contravention was conclusively presumed by virtue of s 220ZD(2)(b) of the Fisheries Act by reason of the fact that the act of removing the snags and woody debris from the subject waterways constituted a contravention of Condition 16 of the Consent. The Stated Case also noted that that was the manner the prosecutor conducted the case up to the time of closing address. 30The Stated Case records the conclusion of the primary judge that having regard to the finding that there was no development consent in force, the presumption in s 220ZD(2)(b) of the Fisheries Act could not apply. 31The Stated Case records that the primary judge refused to allow the prosecutor to rely on s 220ZD(2)(a) of the Fisheries Act as an alternative as she did not consider she could make all the relevant findings pertinent to that issue as all matters relevant to it were not canvassed before her.

(d) Whether s 220ZD(2)(a) or (b) of the Fisheries Act apply in any event 32This was the subject of Question 3. 33The Stated Case notes the prosecutor's submission that for the purpose of s 220ZD(2)(b) of the Fisheries Act it was unnecessary to establish that the Consent was in force in the sense of any deferred commencement condition having been satisfied. 34The Stated Case records that the primary judge concluded that this was not the case particularised and, further, for the purpose of s 220ZD(2)(b) of the Fisheries Act if a development consent is not in force, regardless of whether it has been obtained, there cannot be a failure to comply with such a consent.

(a) Question 1 35The appellant submitted that neither of the two decisions relied on by her Honour, Pselletes v Randwick City Council [2009] NSWCA 262; (2009) 77 NSWLR 287 (Pselletes) and Hopkins v Tweed Shire Council [2001] NSWLEC 75; (2001) 113 LGERA 406 (Hopkins), compelled the conclusion which she reached. 36The appellant submitted that the primary judge misunderstood the relevant facts in Hopkins. He submitted that the notice in that case was not found invalid "because a prohibited development was notified", but rather because the notice which purported to notify a permissible development (earthworks) was inconsistent with the determination of the Council which had resolved to consent to a prohibited development (extractive industry). 37The appellant accepted that it is the determination of the consent authority under s 80(1)(a) of the EPA Act which constitutes the development consent rather than the notice issued pursuant to s 81(1). The appellant, however, did not accept that either Pselletes or Hopkins were authority for the proposition that any inconsistency between the terms of a development consent and the notice of that consent led to the consent not becoming operative. The appellant pointed to the fact that in Pselletes (at 48) Tobias JA said that consequence may occur. The appellant submitted that the answer to that question would depend upon whether the legislative intention was to invalidate any notice which failed to accurately record the terms of the development consent in question: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (Project Blue Sky) at 388-389. 38The appellant submitted that the conditions described as deferred commencement conditions in the Parr Notice were conditions imposed by Council and whilst not deferred commencement conditions as a "term of art" under s 80(3) of the EPA Act in practice they would need to be fulfilled prior to any other work being carried out. The appellant also pointed to the fact that the Parr Notice, consistent with the Council resolution, stated the Consent was to operate from 30 May 2007. 39The appellant submitted that the primary judge erred in failing to consider the significance of the inconsistency between the Consent and the Parr Notice and whether the legislative intention to be discerned was that an inconsistency of that nature would lead to the invalidity of the Parr Notice. Counsel for the appellant emphasised that the conditions in question were conditions imposed by Council albeit not as deferred commencement conditions. 40Counsel for the appellant submitted that the purpose of notification was to balance the rights conferred on the beneficiary of the consent against the capacity of the decision-maker to continue to consider its position as if it had not already committed itself. 41The appellant also submitted that s 101 of the EPA Act prohibited the primary judge from making a finding that the Parr Notice was invalid. 42The respondents submitted that it was not necessary to determine the extent of the authority of Hopkins and Pselletes because, contrary to the appellant's submissions, the inconsistency between the Consent and the Parr Notice was neither minor nor trivial. He submitted that the primary judge correctly found that the inconsistency between the Consent and the Parr Notice was of substance. 43Counsel for the respondents submitted that irrespective of the practical effect of the deferred commencement conditions on the development there was a legal consequence, namely exposure to prosecution for carrying out an activity not in conformity with the deferred consent. He pointed out that s 76A(1)(a) of the EPA Act required the consent to both be obtained and to be in force. 44Counsel for the respondents also pointed to the fact that the use of the word "must" in s 81(1) of the EPA Act and the requirement to notify persons who had made a submission in respect of a designated development under s 79(5) and of their rights of appeal, supported the proposition that strict compliance with s 81(1) was required. 45The respondents submitted that whilst s 101 of the EPA Act may have prevented a challenge to the validity of the Consent, what was in issue in the present case was the validity of the Parr Notice and whether the Consent was actually in force. They submitted that s 101 would not be interpreted so broadly as to prevent a collateral challenge to whether the Consent was in force. They also submitted that compliance with s 81(1) and s 83(1) was indispensable so as not to be covered by the privative provision.

(b) Question 2 46The appellant contended that her Honour erred in declining to consider whether s 220ZD(2)(a) of the Fisheries Act applied in the particular circumstances of the case. He submitted that in reaching that conclusion her Honour misunderstood the function of particulars. 47The appellant submitted that what the prosecution is required to establish is the essential elements of the offences charged, not the particulars. He accepted that there may be some cases arising from the nature of the evidence or the manner in which the proceedings were conducted which would make it unfair for a prosecutor to depart from the particulars but said that this was not the present case. 48The appellant submitted that no injustice arose from the present case as the alternatives in s 220ZD(2)(a) and s 220ZD(2)(b) of the Fisheries Act cover the field where the actions in question were carried out in the course of a development which required development consent. He submitted that any additional submissions that the work did not constitute "development" or that the "development" was not prohibited could have been accommodated. 49The appellant submitted that the task of the primary judge was to consider whether, on the evidence, knowledge in the relevant sense was required to be conclusively presumed by virtue of the operation of s 220ZD(2) of the Fisheries Act. It was submitted that if the primary judge considered the issue had not been sufficiently addressed it was open to her to invite further submissions. 50In support of the proposition that either s 220ZD(2)(a) or s 220ZD(2)(b) of the Fisheries Act applied, counsel for the appellant pointed to the finding by the primary judge that there was a development which required consent under the EPA Act. He submitted that it was not necessary to establish for the purpose of s 220ZD(2)(b) of the Fisheries Act that the person concerned knew that the act or omission constituted a breach of the development consent. 51Counsel for the appellant emphasised that it was always incumbent on the prosecution to prove that the acts complained of were carried out in the course of a development which required consent. He submitted the respondents were aware of this and could not complain if once that was proven the case fell within either of the two subsections of s 220ZD(2) of the Fisheries Act. 52The respondents emphasised that the primary judge precluded the prosecutor from relying on s 220ZD(2)(a) of the Fisheries Act on the basis of unfairness as it constituted a change in what had been addressed by both parties up to the time of final address. 53The respondents emphasised that Mr Ceman was only found to have caused the removal of some of the snags in the Unnamed Creek and that he was not involved in the preparation of the scope of work document that brought about the large-scale removal. They submitted that in those circumstances it may have been open for the respondents to argue that their conduct was consistent with agricultural clean-up of the property which would not have required consent or approval under the EPA Act. 54The respondents also pointed to the different wording of subs (a) and (b) of s 220ZD(2) of the Fisheries Act. They submitted that it would have been open for them to argue that for s 220ZD(2)(a) to be engaged it was necessary to prove that the respondents had knowledge of the requirement for consent or approval. 55Counsel for the respondents pointed to the factual findings set out in the Stated Case (to which I have referred in par 17, (g) and (h) above) and submitted that all that was contemplated at that stage was a clean-up of the property and to the fact that Mr Ceman was not responsible for the clean-up of areas other than the Unnamed Creek (see par [18] above). Counsel for the respondents pointed out by reference to an argument raised by a co-defendant, a Mr Coomes, that had s 220ZD(2)(a) of the Fisheries Act been in issue it would have been open to the defendants to argue that nothing had occurred in the course of carrying out a development for which development consent was required. He submitted the same position would apply to his clients including Mato, as it was only liable as a result of the acts of Mr Ceman being attributed to it.

(c) Question 3 56The appellant repeated his submissions that either a development consent was not obtained, in which case s 220ZD(2)(a) of the Fisheries Act applied, or the work was not carried out in accordance with the Consent in which case s 220ZD(2)(b) applied. He submitted that if the basis on which it was said that s 220ZD(2)(a) did not apply was that development consent had been obtained then s 220ZD(2)(b) applied irrespective of whether or not the Consent was in force. 57The respondents submitted that it was implicit in the words in s 220ZD(2)(b) of the Fisheries Act, "a failure to comply with any such development consent or approval", that a consent was in force.

(a) Question 1 58The issue raised by Question 1 is whether a notice given under s 81(1) of the EPA Act must reflect strictly the requirements of the Regulation for a development consent to become effective by virtue of s 83(1). Put another way, does the legislative intention manifested by s 81(1) require strict compliance with its requirements before the consent becomes effective and operative? 59The question depends on the opening words of s 81(1) of the EPA Act, "The consent authority must, in accordance with the regulations, notify its determination of a development application". 60The task of construing the section must begin with a consideration of the text itself taking into account the context including the general purpose and policy of the provision: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 at [47]. Context is important as statutory construction requires deciding what is the legal meaning of a provision by reference to the language of the instrument viewed as a whole: Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 at [23]-[24], [69] and [88] and Project Blue Sky at [69]. 61The fact that the word "must" is used in the opening words of s 81(1) of the EPA Act is relevant but not conclusive of the construction of the section. In considering the issue it is necessary to consider whether the legislative intention, having regard to the language used in context and the scope and object of the statute, requires strict compliance with the section before a development consent becomes effective: Project Blue Sky at [93]. 62In my opinion, a consideration of the context of the provision and its purpose in the legislative scheme leads to the conclusion that the notice of development consent must at least state accurately the critical matters required to be notified by the Regulation. This includes in particular, as in the present case, the conditions upon which the development consent has been granted. This is for the following reasons. 63First, although not conclusive, the use of the words "must, in accordance with the regulations" suggests that strict compliance is required for the notice to be effective. 64Second, the notice operates as a pre-condition to the consent being operative: EPA Act, s 83(1). The fact that it operates in this way as distinct from merely informing the appellant of the decision of the consent authority also suggests that strict compliance is required. 65Third, and importantly, the notice is required to be given to any person who has made submissions in respect of the development and the time for any appeal is set by reference to the date of the notice. In those circumstances, strict compliance with the form of the notice generally is required: Scurr v Brisbane City Council [1973] HCA 39; (1973) 133 CLR 242 at 255 and D C Pearce and R S Geedes, Statutory Interpretation in Australia, (7th ed, 2011 LexisNexis Butterworths), 11.124. 66The conclusion which I have reached is consistent with authority. In Shanahan v Strathfield Municipal Council (1973) 2 NSWLR 740, Street CJ in Eq in dealing with the equivalent sections of the Local Government Act 1919 (NSW) stated that a mere informal notification of a decision is not sufficient to make it effective but rather that formal notification is required. 67In Pselletes the council consented to a development application which did not include approval for a proposed balcony, the application so far as it included the balcony having been withdrawn. The notice given under s 81 of the EPA Act included the balcony as part of the approved development. The question in that case was whether it was the actual resolution of Council or the notification which constituted consent. The Court held that it was the former. In the course of his judgment Tobias JA, with whom Ipp JA and Sackville AJA agreed, made the following remarks at [44]: "[44] However, in my view there are authorities to the contrary of the proposition advanced by the appellants in Stebbins, which establish that the development consent is the actual determination of the relevant consent authority under s 80(1) of the Environmental Planning and Assessment Act which should be regarded as quite distinct from the notification of that determination under s 81. Thus in Hopkins v Tweed Shire Council (2001) 113 LGERA 406 at 410 [26], Talbot J accepted the submission that the council's decision (granting development consent) was its resolution represented in written form by a council minute. Where, however, the s 81 notice does not correctly reflect the council's decision as so represented, then that notice is invalid as a consequence whereof the consent does not become operative for the purpose of s 83(1) of the Environmental Planning and Assessment Act." 68Although his Honour said subsequently in his judgment at [48] that such consequences may arise, the view he expressed at [44] is consistent with what in my opinion is the correct construction of the section. 69One matter required to be notified by the Regulation is the terms of any conditions: clause 100(1)(b). The Parr Notice misstated the terms in stating two of the conditions were deferred commencement conditions. It follows in my view that the Parr Notice was not effective to make the Consent operative within the meaning of s 83(1) of the EPA Act. 70It was submitted that in the present case the fact that the conditions in question were described as deferred commencement conditions would not practically affect the manner in which the development was carried out. That may be so but that ignores the legal consequences. If the conditions were not met prior to any other work being carried out the developer would be guilty of an offence. This would be contrary to the conditions imposed by Council. 71The appellant's reliance on s 101 of the EPA Act can be dealt with shortly. Section 101 prevents a challenge to a consent in any legal proceedings commenced before 3 months after public notice of the consent. In the present case the Consent is not challenged. The respondents' case was it did not become effective because of non-compliance with the notice requirements of s 81(1). Section 101 has no application in these circumstances. 72It follows that Question 1 in the Stated Case should be answered in the affirmative.

(b) Question 2 73It is clear from the particulars of the acts and omissions of the defendants contained in the summonses, that the contravention of Condition 16 of the Consent was relied upon to establish presumed knowledge by virtue of s 220ZD(2)(b) of the Fisheries Act. That was not disputed by the appellant. Further, it was not in dispute that this was the basis upon which the appellant conducted his case up to the time of closing addresses. 74As the respondents pointed out in their submissions, the factual question as to whether the removal of the debris from the Unnamed Creek occurred in the course of a development was not in issue in the way the case was conducted. Had reliance been placed on s 220ZD(2)(a) of the Fisheries Act it may have been possible for evidence to be led and submissions made on the issue of whether or not development consent was in fact required for the purpose of removing debris from the Unnamed Creek as distinct from the balance of the work which was carried out. 75The appellant accepted correctly that there may be occasions when it would be unfair and oppressive to permit the prosecutor to depart from the particulars in the summons: Environment Protection Authority v Sydney Water Corporation Limited (1997) 98 A Crim R 481 at 484. One area where unfairness occurs is attempting to change particulars at the conclusion of a trial where there is the possibility that additional evidence could have been adduced to rebut the charge as particularised. 76As it appears from her judgment, the primary judge considered the amendment raised additional factual matters which had not been considered. In the Stated Case she referred expressly to the submission of Mr Coomes to which I have referred in par [55] above. 77The question of allowing the amendment to the particulars was a matter which fell within her Honour's discretion. No error of discretion has been made out. 78It follows that this question should be answered in the negative.

(c) Question 3 79As I indicated in answer to Question 2, the primary judge did not err in her discretion in rejecting the appellant's attempt to rely on s 220ZD(2)(a) of the Fisheries Act. It was argued, however, that even if the Parr Notice did not comply with s 81(1) of the EPA Act, there was a development consent in force so that s 220ZD(2)(b) of the Fisheries Act would operate to presume knowledge. 80In my opinion this submission must be rejected. Section 220ZD(2)(b) of the Fisheries Act refers to "the act or omission constituted a failure to comply with any such development consent". The words "act or omission" refer back to the opening words of s 220ZD(2), "an act or omission of a person that causes damage to any habitat", whilst the words "failure to comply with any such development consent" refer back to the wording in s 220ZD(2)(a) "carrying out of...an activity for which development consent...was required". 81Section 220ZD(2)(b) of the Fisheries Act is thus designed to deal with a situation where a development consent is in force and damage to the habitat occurs as a result of acts or omission not in compliance with its terms. The subsection assumes that a development consent is in force. 82Section 83(1)(a) of the EPA Act makes it clear that the consent only became effective and operative from the date endorsed on the notice given in accordance with s 81(1) of the EPA Act. Until a valid notice is given the consent is not in force and s 220ZD(2)(b) of the Fisheries Act can have no operation. As I have indicated a valid notice was not given in this case. 83In those circumstances Question 3 should be answered in the negative.

Conclusion 84In the result I would order that the questions asked in the Stated Case be answered as follows: Question 1 On the facts as found, was it open to me to find that there was no development consent 'in force' with respect to the subject land during the charge period within the meaning of s 76A(1) of the Environmental Planning and Assessment Act 1979? Answer: Yes Question 2Did I err in finding that I could not consider whether the element of knowledge for the purposes of s 220ZD(1) of the Fisheries Management Act 1994 was to be conclusively presumed by application of s 220ZD(2)(a) of that Act? Answer: No Question 3On the facts as found, was I required to conclusively presume that each of Mato Investments Pty Ltd and Dzeladin Ceman knew that the land concerned was the habitat of the trout cod, silver perch and the Lower Murray EEC by reason of the operation of s 220ZD(2) of the Fisheries Management Act 1994 either pursuant to paragraph (a) or paragraph (b) of that provision?" Answer: No 85FULLERTON J: I agree with Bathurst CJ. 86BELLEW J: I agree with Bathurst CJ.

Amendments 20 April 2015 - par [71] line 2 word "before" inserted after "commenced" 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: 20 April 2015