Leda Manorstead Pty Ltd v Secretary, Department of Planning and Environment

Court of Criminal Appeal (NSW)|2022-09-15|Before: Brereton JA, Preston CJ, Chen J, Pepper J

[This headnote is not to be read as part of the judgment] The appellant was convicted by the Land and Environment Court of three offences against s 125(1) of the Environmental Planning and Assessment Act 1979 (NSW) for carrying out development otherwise than in accordance with conditions of a Project Approval in contravention of the then applicable s 75D(2) of the Act. The primary judge found that the appellant breached condition 21A of the relevant Project Approval insofar as that condition required "bulk earthworks for the site" to be "limited to a maximum exposed disturbed area" of 5ha (later extended to 5.59ha) at any time. On appeal against two of the three convictions: Held, per Preston CJ of LEC at [118]; Brereton JA and Chen J agreeing at [1], [119], dismissing the appeal: As to the ultimate outcome: 1. Although the primary judge erred in one respect in the construction of condition 21A, the error does not occasion any substantial miscarriage of justice, and the appeal should be dismissed. That is because even on the correct construction, the unchallenged findings as to the extent of the maximum exposed disturbed area at any time - which was found to have been brought about by bulk earthworks performed in pursuance of the Project Approval - established that the appellant contravened condition 21A in any event: [10]-[12] (Brereton JA); [17], [73], [114]-[116] (Preston CJ of LEC). Gilmour v Environment Protection Authority; Tableland Topdressing Pty Ltd v Environment Protection Authority (2002) 55 NSWLR 593; [2002] NSWCCA 399; Geitonia Pty Ltd v Inner West Council; Gertos v Inner West Council [2016] NSWCCA 186, applied. As to the construction of "the site": 2. The primary judge erred in finding that "the site" of the bulk earthworks referred to in condition 21A(b) was not limited to the borrow areas in the identified precincts but extended to include the entire project site. The natural reading of condition 21A is that "the site" in 21A(b) refers back to the "bulk earthworks in the borrow areas within [the identified precincts]" in 21A(a): [3] (Brereton JA); [66] (Preston CJ of LEC). Condition 21A's relationship with other conditions, and the circumstances in and purpose for which it came to be inserted into the Project Approval, are indicia in further support of that construction: [65]-[72] (Preston CJ of LEC). As to the construction of "exposed disturbed area": 3. There is no warrant, having regard to the text, context or purpose of the phrase, to exclude from the "exposed disturbed area" areas that are also authorised to be disturbed by other development consents. The outcome required by condition 21A(b) is to achieve a factual state of affairs: not having a disturbed area exceeding 5.59ha at any time. It matters not why or how any disturbed area comes about; what matters is the existence and extent of the disturbed area, and whether it exceeds the prescribed limit: [87]-[88] (Preston CJ of LEC). 4. The mere existence of another development consent authorising bulk earthworks in the same area creates only the potential to disturb that area, which is an insufficient basis upon which to exclude such an area from the calculation: [90]-[92] (Preston CJ of LEC). Given the primary judge's unchallenged finding that the subject bulk earthworks were done in pursuance of the Project Approval, it matters not that there might have been some other consent or approval under which similar work could have been (but was not) done: [11] (Brereton JA).

Judgment

BRERETON JA: I have had the considerable benefit of reading in draft the judgment to be delivered by Preston CJ of LEC. I agree with his Honour's reasons and conclusions, but I wish to set out the essential elements of the reasoning which leads me to agree that, although the primary judge erred in the construction of Condition 21A, the appellant was rightly convicted with the consequence that its appeal from the convictions should be dismissed. The following remarks assume familiarity with his Honour's judgment, in which the relevant background and context are fully set out.
Condition 21A (as ultimately modified) provided: "21A Bulk Earthworks a. The Proponent shall submit the following plans and specifications with an application for construction certificate for the bulk earthworks in the borrow areas within Precincts 1, 2, 9 and 11: I. Natural and finished development levels (spot levels and contours) clearly detailed with a legible scale; II. Sediment and erosion control plans; III. Evidence that the works will be undertaken under geotechnical supervision by a registered Geotechnical Engineer; IV. All temporary and permanent batter slopes will be appropriately stabilised by way of grass seeding or hydromulch immediately after completion; and V. An earthworks phasing diagram that defines maximum exposed area. b. Bulk earthworks for the site are to be limited to a maximum exposed disturbed area (that has not been permanently vegetated) not exceeding a maximum of 5ha at any time to reduce exposed areas, unless otherwise approved by the Director-General. c. Works are to be topsoiled, mulched and seeded immediately after completion to protect the exposed areas from water and wind erosion."
Even without resort to the many other indicia to which Preston CJ of LEC refers, the natural reading of that condition is that: 1. Sub-para (a) is concerned with the "plans and specifications … for the bulk earthworks in the borrow areas within Precincts 1, 2, 9 and 11"; 2. Sub-para (b), in referring to "Bulk earthworks for the site", refers back to that concept, namely "bulk earthworks in the borrow areas within Precincts 1, 2, 9 and 11"; 3. The "site" of those bulk earthworks is "the borrow areas within Precincts 1, 2, 9 and 11", and that is the "site" referred to in (b); and 4. The "Works" referred to in sub-para (c) refers back to the Bulk earthworks" referred to in (b).
As that is the construction most favourable to Leda, it is the same result as would be reached even if Leda were right in contending that any ambiguity should be resolved in its favour according to the principle that applies to the construction of penal statutes.
Although the primary judge erred in the construction her Honour adopted of condition 21A, it does not follow that the appeal must succeed. An appeal under Criminal Appeal Act 1912, s 5AA (as applied by s 5AB), is against the conviction. While s 5AA does not contain the "proviso" that is found in s 6(1), subsection (4) provides: (4) The Court of Criminal Appeal in proceedings before it on an appeal under this section may - (a) confirm the determination made by the [Land and Environment] Court in its summary jurisdiction, or (b) order that the determination made by the [Land and Environment] Court in its summary jurisdiction be vacated and - (i) make any determination that the [Land and Environment] Court in its summary jurisdiction could have made on the evidence heard on appeal, or (ii) order a new trial in such manner as the Court of Criminal Appeal thinks fit.
The discretion conferred by sub-s (4) includes a discretion to dismiss an appeal, notwithstanding that some error may be established, if the Court is satisfied that there has been no substantial miscarriage of justice. [1]
The approved earthworks drawings identify, within Precincts 1 and 2, areas described as "cut borrow material", which occupy substantial parts though by no means the whole of each of those Precincts, and self-evidently very substantially exceeded 5.59 hectares. The areas so identified are "the borrow areas within Precincts 1 and 2" referred to in Condition 21A. No "fill" areas in those precincts are identified in the drawings, plainly because the "fill" was for the Central Open Space.
Mr Watts gave evidence, which was accepted by her Honour, that the areas disturbed in Precincts 1 and 2 after 21 June 2013 were as follows: [2] Date Precinct 1 Precinct 2 21 April 2014 11.09 ha 12.55 ha 25 June 2014 11.16ha 12.55 ha 9 October 2014 12.77 ha 12.55 ha 9 April 2015 11.22 ha 10.76 ha 18 May 2016 11.32 ha 13.44 ha 7 March 2017 5.92 ha 13.50 ha

It is true that those areas relate to the whole of the two relevant precincts, and are not confined to the "borrow areas" within them. However, as the primary judge recorded, there was ample evidence that the purpose of the bulk earthworks that were carried out in the borrow areas in Precincts 1 and 2 from August 2013 was to borrow material for the Central Open Space, pursuant to the Project Approval. [3] Moreover, the reason why MOD 2 was sought in late 2013 was because "the fill material which has been obtained from Precincts 1 and 2 Borrow Area (as provided by MOD1) is almost depleted". [4] It follows that virtually the whole of the borrow areas within Precincts 1 and 2 had been disturbed, by cutting. It is plainly apparent from Mr Watts' report, when read with the aerial photography contained in it, that the new earthworks and earthworks re-disturbance in the "borrow areas" within Precincts 1 and 2 after 15 June 2013 very considerably exceeded 5.59 hectares, and that the areas so disturbed remained exposed. In short, those borrow areas themselves obviously and admittedly exceeded 5.59 hectares; they had been substantially exhausted, in order to provide fill elsewhere (in the Central Open Space), not in the borrow areas; borrowing involves "cutting", not "filling"; it follows that in excess of 5.59 hectares had been disturbed by cutting, and remained exposed.
Accordingly, even adopting the narrow construction of "site" that I would, and even if (contrary to my opinion) "exposed disturbed area" were construed as being confined to an area of "cut" and excluding any area of "fill", the condition was infringed - without even beginning to consider the earthworks on Precincts 9 and 11.
Given her Honour's unchallenged finding that these works were done in pursuance of the Project Approval, it matters not that there might have been some other consent or approval under which similar work could have been (but was not) done.
It follows that, notwithstanding the erroneous construction of Condition 21A, Leda was rightly convicted, and the appeal should be dismissed.
PRESTON CJ OF LEC: Leda Manorstead Pty Ltd (Leda) was convicted by the Land and Environment Court of three offences against s 125(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) for carrying out development otherwise than in accordance with conditions of a Project Approval in contravention of the then applicable s 75D(2) of the EPA Act.
The Project Approval was granted under the former Part 3A of the EPA Act. Project Approval No 08_0200 (Project Approval) was granted on 28 February 2011 and modified three times, modification 1 (Mod 1) on 29 May 2013, modification 2 (Mod 2) on 3 April 2014, and modification 3 (Mod 3) on 13 February 2015. Mod 1 introduced a new condition of approval, condition 21A, and modified an existing condition of approval, condition 41. The first two charges, counts 1 and 2, on which Leda was convicted related to the contravention of condition 21A, while the third charge, count 3, related to the contravention of condition 41.
Leda appealed as of right under s 5AB, read with s 5AA, of the Criminal Appeal Act 1912 (NSW) against the convictions for the first two charges. Leda does not appeal against the conviction for the third charge.
The appeal is one in the strict sense, requiring that error be shown on the part of the primary judge. The errors alleged in Leda's grounds of appeal concern the primary judge's construction of condition 21A. Leda contended that had the primary judge correctly construed condition 21A, the offences would not have been proven on the facts. Leda sought for the appeal against the convictions to be allowed, the convictions quashed, and Leda acquitted of each charge.
I find that although the primary judge did err in her construction of condition 21A in one respect, she did not err in the other respects alleged by Leda. This error in construction in one respect, however, does not cause any substantial miscarriage of justice: Gilmour v Environment Protection Authority; Tableland Topdressing Pty Ltd v Environment Protection Authority (2002) 55 NSWLR 593; [2002] NSWCCA 399 at [28]; Geitonia Pty Ltd v Inner West Council; Gertos v Inner West Council [2016] NSWCCA 186 at [4], [129] and [155]. The reason is that, even on the correct construction of condition 21A, the primary judge's unchallenged findings as to the extent of the maximum exposed disturbed area at any time in the charge periods establish that Leda contravened condition 21A in any event. Leda's appeal should therefore be dismissed.

The insertion and amendment of condition 21A of the Project Approval

Condition 21A was not imposed on the grant of the Project Approval on 28 February 2011, but was added when the Project Approval was modified by Mod 1 on 29 May 2013. This fact assists in the construction of condition 21A. An explanation of the grant of the Project Approval and its subsequent modification is therefore helpful.
The Project Approval authorised particular development at what is referred to as the Cobaki Estate at Cobaki on the far north coast of New South Wales. The Cobaki Estate is a new urban release involving residential development, a town centre and neighbourhood centre, community and educational facilities, open space, various environmental protection areas, roads and paths, and utility services.
The entire Cobaki Estate had been the subject of a concept approval under the former Part 3A of the EPA Act, granted on 6 December 2010 by the Minister for Planning (Concept Approval). The project the subject of the Concept Approval involved: "- Residential development for approximately 5,500 dwellings; - Town Centre and neighbourhood centre for future retail and commercial uses; - community and education facilities; - open space; - wildlife corridors; - landscaping and vegetation management; - environmental protection areas and rehabilitation of environmentally sensitive land; - water management areas; - roads, bicycle and pedestrian network; and - utility services infrastructure." (Condition A1, Schedule 2 and project description in the Table in Schedule 1).
The Concept Approval required the project to be undertaken generally in accordance with certain drawings and documents (conditions A2 and A3). One of the approved drawings was the Concept Plan which showed the parts of the Cobaki Estate to be used for different purposes, such as residential, town centre and neighbourhood centre, community and education facilities, open space, and environmental protection areas. Another approved drawing was the Precinct Location Plan showing the development precincts within the Cobaki Estate. These included Precincts 1 and 2 in the north and Precincts 9 and 11 in the south, which were the precincts in which the bulk earthworks the subject of the charges were carried out. The project included a large area of open space running north-south through the centre of the Cobaki Estate, called the Central Open Space. The area of open space is shown on both the Concept Plan and the Precinct Location Plan. To the south-east of the Central Open Space was an area proposed to be used for community and education facilities called the Southern Special Purpose Precinct (SSPP).
The Minister's Concept Approval involved three determinations. First, under s 75O of the EPA Act, the Minister approved the concept plan for the project. This is the project described in the Table in Schedule 1 and condition A1 of Schedule 2 and depicted in the drawings and described in the documents referred to in conditions A2 and A3. Secondly, under s 75P(1)(a) of the EPA Act, the Minister determined that further environmental assessment of the project be subject to the requirements set out in Schedule 2. Part C of Schedule 2 sets out the requirements for assessment of future stages of the project. Thirdly, under s 75P(1)(b) of the EPA Act, the Minister determined that "approval to carry out the project, other than the central open space and Precinct 5, be subject to Part 4 or Part 5 of the Act, as relevant". The effect of this third determination was that future stages of the project involving the Central Open Space or Precinct 5 were to be assessed and approved under Part 3A of the EPA Act.
As a consequence, Leda applied under s 75E of the EPA Act for approval to carry out three stages of the project: the subdivision of the entire Cobaki Estate site; bulk earthworks and civil works to create the Central Open Space and other open spaces and to undertake road forming works in these spaces; and environmental enhancement works.
On 28 February 2011, the Minister's delegate approved the carrying out of these three stages of the project. The Project Approval was structured to address these three stages. Part One involved the subdivision of the entire Cobaki Estate into seven lots, including one residue lot, Lot 807, for further urban development. Part Two involved bulk earthworks and civil works on certain lands within the Cobaki Estate. These works were described as "- Staged bulk earthworks to create the central open space, riparian corridor, structured open space, and future stormwater drainage area; - Road forming works and culverts crossing the central open space (including Lot 802); - Road forming works across saltmarsh areas, including culverts and temporary trunk sewer and water services (Lot 804)" (Condition 1 of Schedule 2 and description of development in the Table in Schedule 1).
Part Three involved environmental enhancement works on certain lands within the Cobaki Estate. These were: "- Revegetation and rehabilitation of environmental protection areas for coastal saltmarsh (Lots 805 and 806); and - Establishment of freshwater wetland and fauna corridors (Lots 801 and 803)" (Condition 1 of Schedule 2 and Table in Schedule 1).
The conditions of approval in Schedule 2 of the Project Approval reflected these three components of the approved project. After setting out the administrative conditions that applied to all three components of the project, Schedule 2 imposed conditions on the subdivision (Part One), bulk earthworks and civil works (Part Two) and environmental enhancement works (Part Three).
The conditions in Part Two regulated the carrying out of the bulk earthworks and civil works that had been approved by the Project Approval (condition 1). These works were the staged bulk earthworks and road forming works described generally in condition 1 of Schedule 2 and the project description in the Table in Schedule 1 and more particularly in the plans approved by condition 3 of Schedule 2, including the Civil Drawings and Earthworks Drawings prepared by Yeats Consulting Engineers referred to in the Table under condition 3. Leda was required by condition 3 to undertake the bulk earthworks and civil works "generally in accordance with" these plans.
The conditions in Part Two were grouped by the timing before, during or by which the conditions needed to be satisfied. The first group of conditions needed to be satisfied "prior to issue of construction certificate". These were conditions 12 to 32. When the Project Approval was modified, the new condition 21A was included in this group.
Four of the conditions that needed to be satisfied prior to the issue of a construction certificate for the approved bulk earthworks and civil works were conditions 21, 22, 23 and 24. These four conditions, which each had their own heading, were grouped under the higher order heading of "Bulk Earthworks". Condition 21 required certification by a registered geotechnical engineer that the proposed earthworks are suitable for their intended use. Condition 22 fixed performance standards for cut and fill batters created by the earthworks. Condition 23 fixed a performance standard for the minimum slope of the earthworks. Condition 24 required Leda to submit plans for approval that showed the pre- and post-earthwork levels within the Central Open Space. All four of these conditions regulated the bulk earthworks at the particular locations within the Cobaki Estate site, which had been approved by the Project Approval.
Prior to commencing construction works (which included the approved bulk earthworks), Leda was required to prepare a Construction Environmental Management Plan (CEMP) "that covers the area of the works" (condition 25). The CEMP was required to "include details sufficient to understand and avoid, mitigate and remedy all potential environmental impacts of the project during construction". The CEMP was to include, as subsets of the CEMP, management plans for: "k. construction waste management (including the proposed method and location of excess spoil from bulk earthworks); l. erosion and sediment control for the entire Cobaki Estate; m. dust management…" (Condition 25 of the Project Approval).
Part Two of the Project Approval next contained conditions that needed to be satisfied "prior to commencement of works". These included condition 36 requiring: "Prior to commencement of any works on-site for each stage of the project, all erosion and sediment control measures are to be installed and operational to the satisfaction of the PCA."
Part Two of the Project Approval next contained conditions that needed to be satisfied "during works". Condition 40 required all works to comply with the approved CEMP, amongst other requirements. Condition 41 specified the limits of the bulk earthworks that had been approved. In its original form, condition 41 provided: "41 Earthworks - Limits of Approval Unless approved sources of fill material are identified in the approved CEMP or approved bulk earthworks construction certificate(s), no bulk earthworks are to be undertaken outside of the central open space area identified in the approved plans. Note: Fill material required for the Central Open Space area sourced from elsewhere on the site shall be identified in the CEMP and may be subject to separate earthworks approvals over those areas."
A number of conditions regulated the environmental impacts of carrying out the approved bulk earthworks, including erosion and sediment control (conditions 44 and 46), stabilisation of bulk earthworks (condition 45), and dust control measures (condition 47).
Finally, Part Two of the Project Approval contained conditions that needed to be satisfied on "completion of works". Condition 57 required the obtaining of compliance certificates for both the bulk earthworks and the civil works, whilst conditions 58 and 60 required provision of works as executed plans.
As I have noted, the Project Approval approved only certain bulk earthworks and civil works at certain locations within the entire Cobaki Estate site. This was the product of conditions 1 and 3 requiring the specified bulk earthworks and civil works to be undertaken generally in accordance with the approved plans, including the Earthworks Drawings, and condition 41 prohibiting bulk earthworks to be undertaken outside of the Central Open Space area identified in the approved plans, unless approved sources of fill material were identified in the approved CEMP or approved bulk earthworks construction certificates. Neither the approved CEMP nor the approved bulk earthworks construction certificates identified sources of fill material, so the qualification did not apply.
By early 2013, Leda wished to source fill to be used in the Central Open Space area from Precincts 1 and 2 of the Cobaki Estate, but the terms of the Project Approval (especially condition 41) precluded it from doing so. Leda therefore applied to the Minister under s 75W of the EPA Act to modify the Project Approval to be allowed to win fill from Precincts 1 and 2 for use in the Central Open Space area.
The Minister approved the modification of the Project Approval on 29 May 2013. The modification, referred to in shorthand as Mod 1, amended the Project Approval in a number of respects to allow for the winning of fill from Precincts 1 and 2 for use in the Central Open Space area. Three modifications are of relevance.
The first was an amendment of condition 3 to amend the list of plans in accordance with which the project was to be undertaken to add a revised "Bulk Earthworks Cut & Fill Plan" and various sheets of a "Precinct 1 & 2 Borrow Area Earthworks Plan".
The second was the insertion of a new condition 21A in the conditions concerning "Bulk Earthworks" that had to be satisfied prior to the issue of a construction certificate. Condition 21A provided: "21A Bulk Earthworks a. The Proponent shall submit the following plans and specifications with an application for construction certificate for the bulk earthworks in the borrow areas within Precincts 1 and 2: I. Natural and finished development levels (spot levels and contours) clearly detailed with a legible scale; II. Sediment and erosion control plans; III. Evidence that the works will be undertaken under geotechnical supervision by a registered Geotechnical Engineer; IV. All temporary and permanent batter slopes will be appropriately stabilised by way of grass seeding or hydromulch immediately after completion; and V. An earthworks phasing diagram that defines maximum exposed area. b. Bulk earthworks for the site are to be limited to a maximum exposed disturbed area (that has not been permanently vegetated) not exceeding a maximum of 5ha at any time to reduce exposed areas, unless otherwise approved by the Director-General. c. Works are to be topsoiled, mulched and seeded immediately after completion to protect the exposed areas from water and wind erosion."
The third was the deletion of condition 41 and its replacement with a new condition 41 as follows: "41 Earthworks - Limits of Approval a. No bulk earthworks are to be undertaken outside of the central open space area (as defined in Schedule 1 Part C of this approval). b. Notwithstanding a) above, bulk earthworks may also be carried out in Precincts 1 and 2 for the sole purpose of the winning of fill to be placed in the central open space area. c. Fill material required for the central open space area sourced from elsewhere on/or [sic] the site requires separate development approval. d. Retaining walls and fire trail profiles identified on bulk earthworks drawings YC0229-1E1-ES04 (Rev D), YC0229-1E1-ES05 (Rev A), YC0229-1E1-ES06 (Rev A), YC0229-1E1-ES07 (Rev A) are not approved. Note: Retaining wall heights and fire trail profiles within Precincts 1 and 2 shall be submitted to council for approval in accordance with the conditions of development approval DA10/0800."
In modifying the Project Approval, the Minister acted on the report and recommendation of the Department of Planning and Infrastructure (Department). The Director-General's Environmental Assessment Report dated May 2013, in section 5.2.2 Bulk Earthworks, noted that although the Project Approval had approved bulk earthworks across the Central Open Space "to shape the landform upon which the roads, structured and casual open space sites, and environmental enhancement works will be carried out - these earthworks largely consisted of filling operations." Although Precincts 1 and 2 had been identified as potential sources of fill to be used for the Central Open Space area, approval to win fill from Precincts 1 and 2 had not been sought, or assessed, in the project application and was not approved by the Project Approval. The winning of fill from Precincts 1 and 2 therefore required further approval.
Leda had agreed to seek approval for the winning of fill from Precincts 1 and 2 for the construction of the Central Open Space area as part of the modification request. Leda submitted detailed bulk earthworks drawings and a supporting environmental impact assessment report for the winning of fill from Precincts 1 and 2 for the Department's consideration.
The Department assessed the modification request and recommended that the Project Approval be modified to authorise the winning of fill from Precincts 1 and 2 on revised conditions. Two of the recommended revised conditions were the insertion of the new condition 21A and the replacement of condition 41. Amongst the reasons given by the Department for recommending these conditions were the following statements: "The department has also recommended a new condition of approval that sets out the details required to be submitted with the construction certificate application for the bulk earthworks activities in Precincts 1 and 2. This includes a requirement for maximum exposed areas to be no greater than 5ha, unless otherwise approved by the Director-General. The department, council and OEH are satisfied with the proponent's proposed environmental mitigation measures for the bulk earthworks activities." (p 26). "Condition 21A - Bulk Earthworks - a new condition of approval to outline the required information to be submitted with an application for a construction certificate for the winning of fill from Precincts 1 and 2, and limiting maximum exposed areas to 5ha, unless otherwise approved by the Director-General." (p 27).
The Project Approval was modified a second time, referred to as Mod 2, on 3 April 2014. Mod 2 allowed for the winning of fill from two additional areas of the Cobaki Estate site, Precincts 9 and 11, for use in the Central Open Space area. The modifications to the Project Approval included:

amending condition 3 to include reference to new earthworks drawings describing the bulk earthworks in Precincts 9 and 11, including a revised "Bulk Earthworks Cut & Fill Plan", "Precinct 9 Borrow Area Earthworks Plan" and "Precinct 11 Borrow Area Earthworks Plan";
amending condition 21A(a) to include reference to Precincts 9 and 11 in addition to Precincts 1 and 2;
amending condition 41(b) to include reference to Precincts 9 and 11 in addition to Precincts 1 and 2; and
deleting condition 41(c) and replacing it with a new condition 41(c) as follows: "c. Notwithstanding a) and b) above, fill material required for the central open space area sourced from elsewhere on/off the site requires separate development approval, unless otherwise approved by the Director-General."

The Project Approval was modified a third time, referred to as Mod 3, on 13 February 2015. Mod 3 allowed an expansion of the borrow area in Precinct 9 and for fill won from Precincts 1, 2, 9 and 11 to be used not only in the Central Open Space area but also in the Southern Special Purpose Precinct (SSPP) area. The modifications to the Project Approval included:

amending condition 3 to include reference to new earthworks drawings describing the expanded Precinct 9 borrow area earthworks and the filling of the SSPP area, and
the replacement of condition 41(b) with a new condition 41(b) to allow filling within the SSPP area, as follows: "b. Notwithstanding a), bulk earthworks may also be carried out in Precincts 1, 2, 9 and 11 for the sole purpose of the winning of fill to be placed in the Central Open Space Area and the SSPP shown on bulk earthworks drawings specified in Condition 3."

Condition 21A(b) of the Project Approval fixed a maximum exposed disturbed area at any one time of 5ha, unless otherwise approved by the Director-General. Leda sought approval for, and the Director-General approved, a greater area than 5ha. By letter dated 19 June 2013, the delegate of the Director-General approved Leda exceeding the 5 ha limit "by no greater than 0.59ha". From that date, the maximum exposed disturbed area for the purposes of condition 21A(b) of the Project Approval became 5.59ha rather than the 5ha specified in the condition.

The offences charged

Leda was charged with contravening condition 21A of the Project Approval in two periods, the first between 21 April 2014 and 30 July 2015 and the second between 31 July 2015 and 7 March 2017. By the time of both of these charge periods the Project Approval had been modified to include condition 21A (by Mod 1 of 29 May 2013), condition 21A had been modified to add Precincts 9 and 11 to Precincts 1 and 2, within which precincts bulk earthworks in the borrow areas in those precincts were approved to be undertaken (by Mod 2 on 3 April 2014), and the Director-General had approved a maximum exposed disturbed area of 5.59ha, which was greater than the maximum of 5ha specified by condition 21A(b) (by letter dated 19 June 2013).
Shortly before the end of the first charge period and before the beginning of the second charge period, the Project Approval had been modified to expand the borrow area in Precinct 9 within which bulk earthworks may be undertaken and to allow fill won from Precincts 1, 2, 9 and 11 to be placed not only in the Central Open Space area but also in the SSPP area (by Mod 3 on 13 February 2015).
Leda was charged with contravening condition 21A by the bulk earthworks for the site during each charge period exceeding the maximum exposed disturbed area. Although each charge particularised that maximum exposed disturbed area as being 5ha, in fact it was 5.59ha as the Director-General had approved a larger area by the time of both charge periods.

The contested construction of condition 21A

The primary judge found that Leda had contravened condition 21A of the Project Approval in both charge periods by the bulk earthworks exceeding the maximum exposed disturbed area of 5.59ha. In finding Leda had contravened condition 21A, Leda contended that the primary judge misconstrued condition 21A in four ways: 1. in construing "the site" on which bulk earthworks must not exceed the maximum exposed disturbed area limit to be not only the precincts in which Leda was authorised to win fill, Precincts 1, 2, 9 and 11, but also the areas of the Cobaki Estate site on which Leda was authorised to place that fill, being the Central Open Space area then after Mod 3, the SSPP area as well (ground 1(a) - the site ground); 2. in not excluding from the calculation of the maximum exposed disturbed area at any time, the areas approved to be disturbed in carrying out bulk earthworks under existing development consents (grounds 1(b) and (c) - the existing consents ground); 3. in construing the phrase "exposed disturbed area" in condition 21A(b) to include not only areas disturbed by the winning of fill (cutting activities) but also areas disturbed by filling activities (ground 1(d) - the cause of the disturbed area ground); and 4. in failing to construe condition 21A in favour of Leda in the face of "latent ambiguity" (ground 1(e) - the construction of penal statute ground).

The site ground

Condition 21A(b) of the Project Approval limits the "bulk earthworks for the site" to a maximum exposed disturbed area of 5ha, later 5.59ha, at any time. The question is what is "the site" on which the exposed disturbed area should not exceed the maximum of 5ha or later 5.59ha?
In the court below, the Secretary, Department of Planning and Environment, the respondent on this appeal, contended that "the site" was the entire Cobaki Estate site. The word "site" was defined in Part C of Schedule 1 of the Project Approval to have "the same meaning as the land identified in Part A of this Schedule". The site described in the Table in Part A of Schedule 1 was the "Cobaki Estate, Cobaki", comprising all of the lots therein listed.
Alternatively, the respondent contended that the site comprised all of the areas of the Cobaki Estate site on which bulk earthworks had been approved by the Project Approval to be undertaken. These areas included the precincts from which fill was approved to be won, Precincts 1, 2, 9 and 11, and the areas in which fill won from these precincts was approved to be placed, originally the Central Open Space area and later the SSPP area as well.
Leda disputed both of the respondent's alternative constructions. Leda contended that "the site" was limited to only those areas of the Cobaki Estate site on which the bulk earthworks approved by condition 21A(a) and condition 41(b) were authorised to be carried out, which were the borrow areas in Precincts 1, 2, 9 and 11 referred to in condition 21A(a) and condition 41(b). The site referred to in condition 21A(b) did not include either the Central Open Space area or the SSPP area on which fill won from these precincts was authorised to be placed.
The primary judge rejected the respondent's primary construction of the site (at [125] of the judgment), and Leda's construction (at [126]), and instead adopted the respondent's alternative construction (at [127]-[128] of the judgment). The primary judge found that condition 21A(b) referred to the bulk earthworks that were the subject of Part Two of the Project Approval, being the bulk earthworks authorised to be undertaken in the Central Open Space, Precincts 1, 2, 9 and 11, and the SSPP area (at [128] of the judgment).
Leda contended that the primary judge erred in doing so. I agree. The "site" in the phrase "bulk earthworks for the site" in condition 21A(b) comprised each of the borrow areas within Precincts 1, 2, 9 and 11 from which the proponent was authorised to win fill under condition 21A(a) and condition 41(b) of the Project Approval.
The Project Approval authorised the carrying out of specified development on specified land, the location of the particular land depending on the nature and the extent of the particular development. The Project Approval authorised the carrying out of three developments: subdivision, bulk earthworks and civil works, and environmental enhancement works.
The development of subdivision involved the subdivision of "the entire Cobaki Estate site", and comprised all of the lots listed in the description of the site in the Table in Schedule 1 of the Project Approval. The development of bulk earthworks and civil works involved undertaking only the bulk earthworks and road forming works described in condition 1 and the plans approved by condition 3 in the particular areas identified in the approved plans. At the time of grant of the Project Approval, the only area in which bulk earthworks were approved to be undertaken was the Central Open Space area. Condition 41 of the Project Approval as originally granted emphasised this limitation by requiring that "no bulk earthworks are to be undertaken outside of the central open space area identified in the approved plans", unless approved sources of fill material are identified in the approved CEMP or approved bulk earthworks construction certificates. The third development of the road forming works was limited to the land specified in the Central Open Space (including Lot 802) and the saltmarsh areas (including Lot 804).
Thus, notwithstanding the definition of "site" in Part C of Schedule 1 referring to the entire Cobaki Estate site, the Project Approval applied differentially to land in the Cobaki Estate depending on the approved development and the location of that development. Relevantly, the land on which the approved development of bulk earthworks and civil works was authorised to be undertaken was limited to the Central Open Space area and did not extend to the entire Cobaki estate site.
The modification of the Project Approval by the insertion of condition 21A did expand the areas of the Cobaki Estate site on which development could be carried out, but only to include the land on which the bulk earthworks approved by condition 21A(a) and condition 41(b) were authorised to be undertaken. The new bulk earthworks approved by conditions 21A(a) and 41(b) involved the winning of fill from borrow areas within the identified precincts, Precincts 1, 2, 9 and 11. The new condition 21A and the replacement condition 41 authorised the undertaking of these bulk earthworks of winning fill from the borrow areas in the identified precincts.
Although these conditions did specify the purpose of the winning of fill from these identified borrow areas, being for the placement of fill in the Central Open Space area and later in the SSPP area as well, these conditions of the Project Approval did not themselves authorise the placement of fill in these areas. The authority to place fill in the Central Open Space area and the SSPP area was to be found elsewhere in the Project Approval, and possibly also in the earlier Concept Approval for the filling of the Central Open Space area.
The important point to note from this history of the grant of the Project Approval, and the insertion and amendment of condition 21A and condition 41, is that the bulk earthworks approved to be undertaken by conditions 21A(a) and 41(b) were limited to the borrow areas in the precincts identified in condition 21A(a).
It is in this context that the phrase in condition 21A(b), "bulk earthworks for the site", needs to be construed. The phrase refers to the bulk earthworks in the borrow areas within Precincts 1, 2, 9 and 11 authorised to be undertaken by condition 21A(a). This is corroborated by the cognate amendment to condition 41(b) of the Project Approval, which expressly authorised the carrying out of bulk earthworks in the identified precincts for the sole purpose of the winning of fill to be placed in the Central Open Space area and later the SSPP area as well.
Conditions 21A and 41 did not authorise bulk earthworks to be undertaken outside of these borrow areas in the identified precincts. Again that is clear from condition 41, which prohibits the undertaking of bulk earthworks outside the Central Open Space area (paragraph (a)) and the identified precincts (paragraph (b)).
This construction of the word "site" in condition 21A(b) is corroborated by five other indicators. First, as s 6 of the Interpretation Act 1987 (NSW) provides, the definition of "site" in the Project Approval applies "except in so far as the context or subject-matter otherwise indicates or requires". Here, the context and subject matter of condition 21A indicate that the definition of "site" does not apply, but instead the site to which reference is being made in condition 21A(b) comprises each of the borrow areas in Precincts 1, 2, 9 and 11 from which fill is authorised to be won.
Secondly, paragraphs (a), (b) and (c) of condition 21A are linked and refer to the same bulk earthworks and the same exposed disturbed areas. The bulk earthworks are those authorised to be carried out in the borrow areas within Precincts 1, 2, 9 and 11 under condition 21A(a) and condition 41(b). These are the "bulk earthworks" referred to in condition 21A(b) , the "works" referred to in condition 21A(c) and the "bulk earthworks" referred to in condition 41(b). The "exposed disturbed area" referred to in condition 21A(b), which is not to exceed a maximum of 5ha, is the area disturbed and exposed by carrying out the bulk earthworks authorised by condition 21A(a) and condition 41(b). This exposed disturbed area is the same as the "exposed areas" referred to in condition 21A(a)(V), condition 21A(b) and condition 21A(c).
Thirdly, condition 21A was inserted in the part of the Project Approval dealing with conditions that need to be complied with "prior to issue of construction certificate". This is an indicator that condition 21A(b) and (c) were not intended to regulate the carrying out of the bulk earthworks in the Central Open Space area. There were already conditions of the Project Approval that must be complied with "during works" regulating the environmental impacts of undertaking those earthworks (conditions 40 to 48). If condition 21A(b) and (c) were intended to be conditions further regulating the environmental impacts of undertaking earthworks in the Central Open Space area, they would have been included in the "during works" part of the Project Approval rather than the "prior to issue of construction certificate" part.
Fourthly, and following on from the previous point, the fact that there are already conditions regulating the environmental impacts of earthworks undertaken in the Central Open Space area (in conditions 40 to 48 during works and conditions 21-24 and 25-32 prior to issue of construction certificate) is an indicator that condition 21A(b) and (c) were not intended to duplicate these conditions so as to also regulate the environmental impacts of undertaking earthworks in the Central Open Space area. In particular, conditions 44 and 46 dealing with erosion and sediment control, condition 45 dealing with stabilisation of bulk earthworks and condition 47 dealing with dust control all achieve the same objectives as condition 21A(b) and (c). This indicates that condition 21A(b) and (c) have a more limited operation, regulating the environmental impacts of only the earthworks authorised by condition 21A(a) and condition 41(b).
Finally, condition 21A and the replacement condition 41 were conditions imposed on the modification of the Project Approval, not the grant of approval. The power to modify an approval granted under Part 3A included the power to change the terms of the approval, including by revoking or varying a condition of the approval or imposing an additional condition of approval: s 75W(1) of the EPA Act. Nevertheless, any such change to the terms of the approval, including varying a condition or imposing a new condition, must be reasonably capable of being regarded as related to the purpose for which the power to modify the approval is being exercised and be made necessary by the modifications: North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468; (1998) 97 LGERA 433 at 441; 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685 at [40].
This nexus to the modifications and their purpose is readily established if condition 21A(b) and (c) are construed as regulating the environmental impacts of the bulk earthworks authorised to be undertaken by the new condition 21A(a) and the amended condition 41(b), but less readily established if condition 21A(b) and (c) are construed as regulating the environmental impacts of the other bulk earthworks in the Central Open Space area authorised by the existing terms of Part Two of the Project Approval. The approval of additional bulk earthworks in new parts of the Cobaki Estate, in the borrow areas in Precincts 1, 2, 9 and 11, did not necessitate imposing additional conditions regulating the environmental impacts of the existing bulk earthworks in the Central Open Space area, which were already regulated by the existing conditions of approval (including conditions 21-31 and 40-47 of the Project Approval).
As a general rule, a construction of an exercise of a statutory power, such as the modification of an approval under Part 3A or a development consent under Part 4 of the EPA Act, that would make the exercise to be within power is to be preferred to a construction that would make the exercise to be outside power: see s 32(1) of the Interpretation Act. This is an indicator that condition 21A(b) and (c) should be construed as applying only to the bulk earthworks authorised by the modification of the Project Approval, being the bulk earthworks approved by condition 21A(a) and condition 41(b), and not to the existing bulk earthworks in the Central Open Space area approved by Part Two of the Project Approval.
The primary judge was therefore correct in rejecting the respondent's primary construction that the site of the bulk earthworks referred to in condition 21A(b) was the entire Cobaki Estate site, but was incorrect in finding that the site of the bulk earthworks referred to in condition 21A(b) was not limited to the borrow areas in the identified precincts but extended to include the Central Open Space area and the SSPP area.
I therefore uphold ground 1(a) of Leda's appeal. This does not necessarily result in the upholding of the appeal itself. The primary judge's unchallenged findings establish that Leda would still contravene condition 21A(b), if construed correctly, as the maximum exposed disturbed area at any time in the identified precincts exceeded the applicable maximum limit of 5.59ha (see [132] of the judgment). I will deal with this point later.

The existing consents ground

Condition 21A(b) sets an outcome that must be achieved - limiting the maximum exposed disturbed area in the relevant part of the site to 5ha (or 5.59ha) at any time. Leda raised two issues in determining whether this limit for the maximum exposed disturbed area had been exceeded in the charge periods.
The first issue was whether areas authorised to be disturbed by undertaking bulk earthworks approved by other development consents should be excluded in calculating the maximum exposed disturbed area for the purposes of condition 21A(b).
Before the grant of the Project Approval, other development consents had been granted by Tweed Shire Council for development on various parts of the entire Cobaki Estate site. These development consents were identified in condition C18 of the Concept Approval. Of most relevance was development consent DA10/0800 granted on 30 May 2011 by Tweed Shire Council for the subdivision of Precincts 1 and 2 into 475 residential lots (including one residential lot) and lots for drainage, open space and urban infrastructure. This development consent authorised the carrying out of earthworks and civil works for the approved subdivision. One condition of consent, condition 32, required, prior to the issue of a construction certificate for civil works, the submission to the Principal Certifying Authority for approval of detailed engineering plans and specifications for earthworks showing "the maximum disturbed area (that has not been permanently vegetated) at any time shall not exceed 5ha".
As a matter of fact, no construction certificate was issued for civil works under this development consent before Leda carried out the bulk earthworks the subject of the charges. Nevertheless, Leda argued that the development consent authorised the carrying out of earthworks and civil works in Precincts 1 and 2. Leda contended that any area that could have been disturbed by carrying out earthworks and civil works authorised to be undertaken for the subdivision approved by the development consent should be excluded in the calculation of the maximum exposed disturbed area at any time during the charge periods.
At trial, Leda had also relied on various construction certificates that had been issued under other development consents granted by Tweed Shire Council. Leda's engineer, Dr Martens, analysed aerial images at different points of time to ascertain if the earthworks carried out by Leda coincided with areas in which there were construction certificates for earthworks. According to Dr Martens, the earthworks carried out by Leda were in areas approved for earthworks by the construction certificates. Leda contended that earthworks in these areas should also be excluded in calculating the maximum exposed disturbed area at any time in the charge periods.
The primary judge rejected Leda's contentions. First, the primary judge found that the mere co-existence of development consents and construction certificates did not obviate the need for Leda to comply with the conditions of the Project Approval (at [209], [261] and [264] of the judgment). Merely because the bulk earthworks carried out on the site might be consistent with the terms of the development consents or construction certificates did not mean that the earthworks were actually carried out under such development consents or construction certificates (at [261] of the judgment). Condition 21A(b) "could not be circumvented by an assertion that works being undertaken in areas the subject of the Project Approval were being undertaken pursuant to another consent" and "re-disturbed areas, if the re-working was due to activity undertaken under the Project Approval, was subject to condition 21A(b)" (at [209] of the judgment).
As a matter of fact, the primary judge found that the bulk earthworks carried out on the site, which were the subject of the charges, were carried out under the Project Approval and not any other development consent or construction certificate. In these circumstances, the fact that the bulk earthworks had been approved under other development consents or construction certificates would not provide a basis for excluding areas disturbed by earthworks from the limit imposed by condition 21A(b) (at [240] of the judgment).
The primary judge analysed the construction certificates relied upon by Dr Martens. Many of these construction certificates could be ignored because they did not approve bulk earthworks of relevance for the purpose of the condition 21A(b) calculation (at [241] of the judgment). Only four construction certificates were material (at [243] of the judgment), but the areas of active cut and fill authorised by three of these were sufficiently small or sufficiently extraneous as to be immaterial to the limit in condition 21A (at [244] of the judgment). For the remaining construction certificate, the primary judge found that the earthworks undertaken in the areas covered by the construction certificate were "plainly in furtherance of the Project Approval" (at [252] and [253] of the judgment).
With regard to development consent DA 10/0800, the primary judge found that "the works undertaken in Precincts 1 and 2 were carried out in furtherance of the Project Approval", so that the existence of the development consent did not assist Leda (at [261] of the judgment). The primary judge noted that no construction certificate had been issued under development consent DA10/0800 permitting the carrying out of the bulk earthworks approved by that consent (at [267] of the judgment).
The primary judge concluded that "the Secretary is able to prove beyond reasonable doubt that the bulk earthworks were undertaken in furtherance of the Project Approval" and that "any exposed disturbed area created as a result of those earthworks was required to comply with condition 21A(b)" (at [280] of the judgment).
The primary judge's construction of condition 21A(b) and finding that the areas authorised to be disturbed, but not in fact disturbed, by earthworks authorised by other development consents and construction certificates founded grounds 1(b) and (c) of Leda's appeal.
The second issue raised by Leda was whether the phrase "exposed disturbed area" in condition 21A(b) includes not only areas disturbed by the winning of fill but also by the placing of fill. Leda contended that only areas disturbed by cutting activities and not by filling activities should be included, but the primary judge rejected that contention (paragraph [152] of the judgment). This is ground 1(d) of Leda's appeal.
I will address Leda's first argument in this section and its second argument in the next section of the judgment.
I reject Leda's first argument as to the construction of the phrase "exposed disturbed area" for two legal reasons and one factual reason. The first legal reason is that there is no warrant, having regard to the text, context or purpose of the phrase "exposed disturbed area" in condition 21A(b), to exclude areas authorised to be disturbed by other development consents. The outcome required by condition 21A(b) to be achieved is a factual state of affairs - not having a maximum exposed disturbed area exceeding 5ha (or 5.59ha) at any time. The proponent is required by condition 21A(b), in undertaking the bulk earthworks approved by condition 21A(a), to achieve this state of affairs. If there is no exposed disturbed area in the precincts at the time of commencing undertaking the bulk earthworks in the precincts, the proponent can undertake the bulk earthworks to such an extent and in such a manner as will limit the maximum exposed disturbed area at any time to the maximum of 5ha (or 5.59ha). If there is already some exposed disturbed area in the precincts, for whatever reason, the proponent will need to reduce the extent or change the manner of bulk earthworks undertaken under the Project Approval so as to limit the maximum exposed disturbed area at any time to the maximum of 5ha (or 5.59ha).
It matters not, therefore, why or how any exposed disturbed area in the precincts might have come about. What matters is the existence and extent of any exposed disturbed area in the precincts at any time. The condition requires the total exposed disturbed area to not exceed the maximum of 5ha (or 5.59ha) at any time.
The second legal reason applies if the first legal reason is incorrect and it is necessary to enquire why and how the maximum exposed disturbed area has come about, whether by undertaking the bulk earthworks pursuant to the Project Approval or instead pursuant to some other development consent.
Even if this inquiry be necessary, the focus of the inquiry is on any area that has actually been disturbed by the undertaking of bulk earthworks pursuant to a particular development consent, not the potential to disturb an area by undertaking such bulk earthworks.
The mere existence of another development consent authorising the undertaking of bulk earthworks in the same precincts in which the Project Approval authorises the undertaking of the bulk earthworks referred to in condition 21A(a) is insufficient to justify excluding any area that might be disturbed if the bulk earthworks authorised by the development consent were to be undertaken, in the calculation of the maximum exposed disturbed area for the purposes of condition 21A(b). The authority given by a development consent to disturb an area by undertaking approved bulk earthworks is distinct from the actual disturbance of an area by undertaking such bulk earthworks. It can only be the latter and not the former that is relevant in calculating the maximum exposed disturbed area for the purpose of determining whether the limit imposed by condition 21A(b) has been exceeded.
The factual reason for rejecting Leda's argument flows from this second legal reason. The primary judge found as a matter of fact that the maximum exposed disturbed area in the relevant precincts was the result of undertaking bulk earthworks pursuant to the Project Approval, not any other development consent (paragraphs [252], [253], [261], [266], [267], [280] and [282] of the judgment). In this circumstance, it matters not that Leda would have been authorised by other development consents to undertake bulk earthworks in the relevant precincts, which might have resulted in an exposed disturbed area. What matters is that Leda did not actually undertake bulk earthworks pursuant to those development consents so as to create an exposed disturbed area in those precincts. The maximum exposed disturbed area in the precincts during the charge periods was found by the primary judge to be solely attributable to Leda undertaking the bulk earthworks pursuant to the Project Approval.
For these reasons, I reject grounds 1(b) and 1(c) of Leda's appeal.

The cause of the disturbed area ground

Leda's second argument as to the construction of the phrase "exposed disturbed area" in condition 21A(b) was that it referred only to an area disturbed by cutting activities, not filling activities, and the primary judge erred in finding otherwise. Leda's argument was founded on the evidence of an engineer, Dr Martens, who opined that an area can only be "exposed" by cutting activities involved in the winning of fill and not by filling activities involved in placing fill that has been won. The primary judge correctly rejected Dr Marten's opinion as to the phrase "exposed disturbed area" (at [152] of the judgment). The meaning of the phrase in the condition of the Project Approval is to be determined by ordinary principles of construction, not by reference to the opinion evidence of an engineer.
On a proper construction, the phrase "exposed disturbed area" in condition 21A(b) refers to an outcome, not the process by which the outcome might be brought about. An exposed disturbed area is, first of all, an area that is disturbed and, secondly, a disturbed area that is exposed. Condition 21A(b) sets a limit - the maximum exposed disturbed area at any time - with which the proponent must comply in undertaking the approved bulk earthworks. Contrary to Dr Marten's opinion, and Leda's submission relying on that opinion, the phrase in condition 21A(b) setting the limit is not a "disturbed exposed area", so that the area needs first to be exposed, and by such exposure, disturbed. That is to invert the order of the adjectives in the phrase in condition 21A(b).
The references to "exposed area" in condition 21A(a) and (c) do not change the meaning of the language of the limit set by condition 21A(b). The "exposed areas" referred to in condition 21A(a) are the areas that will be disturbed and exposed by the carrying out of the bulk earthworks approved by condition 21A(a). The earthworks phasing diagram required to be prepared by condition 21A(a)(V) is to define the maximum exposed areas from the carrying out of these bulk earthworks approved by condition 21A(a). The "works" referred to in condition 21A(c) are the bulk earthworks referred to in condition 21A(a) and (b). These works are to be topsoiled, mulched and seeded immediately after completion to protect the areas on which these works have been carried out from water and wind erosion.
Once it is understood that an exposed disturbed area is a disturbed area that is exposed, it can readily be appreciated that the nature of the activity that might result in the area being disturbed and exposed is uninformative. Both cutting activities, such as the winning of fill, and filling activities, such as the stockpiling or placing of fill, can equally disturb an area so as to cause the area to be a disturbed area. If the disturbed area is not stabilised and vegetated, it may also be exposed, so that the area becomes an exposed disturbed area.
There was, therefore, no need in the calculation of the maximum exposed disturbed area at any time to distinguish between an exposed disturbed area resulting from cutting activities and an exposed disturbed area resulting from filling activities; both types of area are exposed disturbed areas for the purposes of condition 21A(b).
In any event, this argument of Leda lost much of its cogency once the "site" on which the bulk earthworks are carried out is understood to be limited to the borrow areas in the four precincts identified in condition 21A(a) from which fill is to be won and not also the Central Open Space area and SSPP area on which fill won from those precincts is placed. The approved earthworks drawings only show areas of cut in the borrow areas in the four precincts, not areas of fill. The primary judge found that the exposed disturbed areas in the four precincts were created as a result of earthworks undertaken in furtherance of the Project Approval. For this to occur, the earthworks needed to have involved the winning of fill from the borrow areas, which comprises cutting and not filling activities. The maximum disturbed area within the borrow areas in the four precincts did not include areas of fill, only areas of cut.
Hence, even if there were to have been an error of construction by not excluding areas disturbed by filling activities, such error would not be material, as no areas disturbed by filling activities in Precincts 1, 2, 9 and 11 were included in calculating the maximum exposed disturbed area for the purposes of determining whether Leda contravened condition 21A(b) in the charge periods.
I reject ground 1(d) of Leda's appeal.

The construction of penal statutes ground

Leda's final ground challenging the primary judge's construction of condition 21A was that the primary judge failed to construe condition 21A in favour of Leda in the face of "latent ambiguity" in the meaning of condition 21A. Leda submitted that, like the construction of a criminal statute, the construction of a condition of the Project Approval, a breach of which is a criminal offence under the EPA Act, is informed by the rule that if the language remains ambiguous or doubtful, the ambiguity or doubt must be resolved in favour of the subject by refusing to extend the category of criminal offence: Beckwith v The Queen (1976) 135 CLR 569 at 576; Waugh v Kippen (1986) 160 CLR 156 at 164; Director General, Department of Land and Water Conservation v Bailey (2003) 136 LGERA 242 at [24]-[25]; Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage (2013) 298 ALR 532; [2013] NSWCCA 114 at [111].
Leda noted that the primary judge found that, in one respect concerning the word "site" in condition 21A(b), condition 21A gives rise to "latent ambiguity": at [125] of the judgment. Leda submitted that, in the face of such ambiguity, the primary judge erred in failing to construe condition 21A in favour of Leda.
The respondent rebutted Leda's argument. Condition 21A is to be construed by applying the ordinary rules of construction. The principle governing construction of statutes imposing criminal liability has been referred to as a rule of last resort: Beckwith v The Queen at 576. A statute's penal character "to be regarded as a very minor consideration to be taken into account in ascertaining its legal meaning in light of its text, context and purpose": Grajewski v Director of Public Prosecutions (NSW) (2017) 270 A Crim R 33; [2017] NSWCCA 251 at [55] and see also Walker Corporation Pty Ltd v Director General, Department of Environment, Climate Change and Water (2012) 82 NSWLR 12; [2012] NSWCCA 210 at [35].
In this case, the respondent submitted that the primary judge's construction of condition 21A accorded with the conventional approach to construction of statutory instruments. The primary judge applied the ordinary rules of construction, ascertaining the meaning of condition 21A in light of its text, context and purpose: see [122]-[131] of the judgment. Having done so, the primary judge was not bound to dismiss the charges on account of what she had described as "latent ambiguity".
I reject Leda's submission. There was no need to resort to any principle concerning the construction of statutes imposing criminal liability, for two reasons.
First, neither the Project Approval nor condition 21A of that approval is properly to be characterised as being a penal statute. It may be accepted that the EPA Act made carrying out of the project otherwise than in accordance with any condition of the Project Approval an offence, but that does not make the Project Approval or any condition to which it is subject a penal statute.
Second, the meaning of condition 21A, and its component words and phrases, was to be ascertained in light of their text, context and purpose, applying the ordinary rules of construction. When this is done, their meaning is clear - there is no residual ambiguity.
The meaning of condition 21A, and of each of its component words and phrases, is that which I have given earlier in the judgment. In all respects bar one - the meaning of the word "site" - the meaning is that given by the primary judge. The meaning of the word "site" in condition 21A is more confined than that found by the primary judge and refers to the borrow areas in the relevant precincts in which the bulk earthworks approved by condition 21A were authorised to be undertaken. This construction happens to accord with that advanced by Leda. But the adoption of that construction flows from an application of the ordinary rules of construction, not by having resort to any principle concerning construction of statutes imposing criminal liability.
In all other respects, the construction of condition 21A and its component words and phrases adopted by the primary judge was the proper construction, applying the ordinary rules of construction.
I reject ground 1(e) of Leda's appeal.

Error not material

I have found that the primary judge erred in her construction of condition 21A in only one respect, concerning the meaning of the word "site". To this extent, ground 1(a) of the appeal should be upheld. But this error does not result in any substantial miscarriage of justice. On a proper construction of condition 21A, the site referred to the borrow areas in the relevant precincts in which the bulk earthworks approved by condition 21A were undertaken. On the primary judge's finding, however, the maximum exposed disturbed area at any one time in the relevant precincts still exceeded the maximum area of 5.59ha during the periods the subject of the charges.
The primary judge made findings of the exposed disturbed areas during the charge periods in various parts of the Cobaki Estate site. The primary judge's findings based on the evidence of Dr Martens (in [284], [287] and [288] of the judgment) are not helpful as they aggregate the exposed disturbed areas in not only Precincts 1, 2, 9 and 11 but also in the Central Open Space area and the SSPP area. The primary judge's findings based on the evidence of Mr Watts, however, are more helpful as they separately identify the exposed disturbed areas in each of Precincts 1, 2, 9 and 11, the Central Open Space area and the SSPP area during the charge periods (at [201] of the judgment). In the first charge period of 21 April 2014 to 30 July 2015, the table in [201] of the judgment establishes that the total exposed disturbed area in Precincts 1, 2, 9 and 11 exceeded the maximum of 5.59ha (31.95ha on 21 April 2014, 32.04ha at 25 June 2014, 36.87ha at 9 October 2014 and 35.22ha at 9 April 2015). So too in the second charge period of 31 July 2015 to 7 March 2017 did the total exposed disturbed area in Precincts 1, 2, 9 and 11 exceed the maximum of 5.59ha (40.91ha at 18 May 2016 and 36.21ha at 7 March 2017).
Leda sought to argue that these findings of the maximum exposed disturbed area in the relevant precincts were affected by the primary judge's misconstruction of condition 21A by including areas disturbed not only by cutting activities but also by filling activities. I do not agree. The primary judge found that the exposed disturbed areas (which were the subject of her findings in [201] of the judgment) were created as a result of Leda undertaking the bulk earthworks approved under and in furtherance of the Project Approval. This means that the bulk earthworks undertaken in Precincts 1, 2, 9 and 11 were pursuant to condition 21A(a) and condition 41(b) of the Project Approval. Those approved bulk earthworks involved the winning of fill from the borrow areas in the precincts, which involved cutting activities not filling activities. Hence, the primary judge's findings of the maximum exposed disturbed area in the precincts were based on only the approved cutting activities and not any unapproved filling activities.
As a consequence, on the proper construction of condition 21A as applying to the bulk earthworks in Precincts 1, 2, 9 and 11, Leda has still contravened condition 21A by the maximum exposed disturbed area in the precincts exceeding the maximum of 5.59ha at any time during the charge periods.
In this circumstance, this Court should dismiss the appeal, notwithstanding an appellable error at trial having been established, as no substantial miscarriage of justice has actually occurred: Gilmour v Environment Protection Authority at [28] and followed in Geitonia Pty Ltd v Inner West Council; Gertos v Inner West Council [2016] NSWCCA 186 at [4], [129] and [155].
There should be no order as to the costs of the appeal, as pursuant to s 17(1) of the Criminal Appeal Act 1912, no costs are to be allowed on either side.
I propose the Court order that the appeal is dismissed.
CHEN J: I agree with Preston CJ of LEC.

Endnotes

Gilmour v Environment Protection Authority; Tableland Topdressing Pty Ltd v Environment Protection Authority (2002) 55 NSWLR 593; [2002] NSWCCA 399 at [28]; Geitonia Pty Ltd v Inner West Council; Gertos v Inner West Council [2016] NSWCCA 186 at [4] (Price J; Garling J and N Adams J agreeing).
Primary judgment at [201].
Primary judgment at [250]-[252], [272], [273].
Primary judgment at [251]. 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: 10 October 2022

Criminal Appeal Act 1912(NSW)ss 5AA, 5AB, 6(1), 17(1)

Environmental Planning and Assessment Act 1979(NSW)ss 75D, 75E, 75O, 75P, 75W, 125, Part

(2003) 136 LGERA 242

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