Marrickville Council v Danias and ors

1. The Prosecutor has filed a notice of motion seeking amendments to the Orders and Summons issued on 6 September 2001 in ten Class 5 proceedings, being Matter Numbers 50092 to 50101. The application is to replace all references to s 76B of Environmental Planning and Assessment Act 1979 (the Act) in the Orders and Summons with s 76A of the Act. Section 76B of the Act relates to development which is prohibited. Section 76A concerns development for which development consent is required. The matter has been set down for hearing on Monday 15 April 2002. Only the Third Defendant appeared and was represented at the hearing.
2. The prosecutions relate to alleged activities conducted at adjoining premises at 9-31 Farr Street, Marrickville. The area surrounding the properties is identified as Industrial 4(a) zoning under the Marrickville Planning Scheme Ordinance in force. The premises at 9-31 Farr Street are residential in nature.
3. The Prosecutor relied on the affidavit evidence of Gabriel Mafi, council officer of Marrickville Council, concerning the history of the matter and Natasha Harris, also a Marrickville Council officer, in relation to existing use rights which may exist at the relevant premises. An affidavit of Stephen Toohey, Manager Monitoring Services in Marrickville Council, was also read. Mr Toohey made searches of the Council's records in relation to the properties at 9-31 Farr Street, Marrickville, to determine whether development applications have been received for demolition and construction work at these premises.
4. The purpose of this evidence was to demonstrate to the Court that there were circumstances warranting the amendment of the Orders and Summons. The Prosecutor sought to demonstrate that, because of the existing use rights at these properties, development consent to the activities the subject of the prosecutions could be obtained. The Summons issued in these proceedings already refer at particulars (g) and (h) to the 'existing use' of the land as a dwelling house. The Prosecutor argued that s 76A of the Act applied because the relevant development work was development for which development consent could be sought. As a result the activities were not prohibited development under s 76B of the Act and the Order and Summons should be amended accordingly.
5. The Prosecutor further argued that as the essential elements of the offence were already set out in the particulars in the Summons, and these did not require an amendment, what was sought was a clarification in the pleadings of the offences.
6. The Prosecutor relied on s 68 of the Land and Environment Court Act and s 43 of that Act as the source of the Court's broad power to allow amendment of pleadings in Class 5 matters. Two cases of Rao v Canterbury City Council [2000] NSWCCA 471 and Cooper v Coffs Harbour City Council (1997) 97 LGERA 125 were referred by the Prosecutor in support of the amendments of the pleadings being sought. It is clear that the Land and Environment Court does have power to make these amendments.

7. The Third Defendant argued that this is not a case where the prosecution is seeking only to qualify particulars of the offences, as is clearly allowed in the cases to which the Court was directed. What is sought is an amendment to an essential element in the offences to be prosecuted. Accordingly this is not a case where a deficiency in the pleadings is being corrected by the Prosecutor, but rather a new offence. In Wehbee v Voulgarakis (1991) 9 Petty Sessions Review 4363, to which the Third Defendant's counsel referred, the court allowed the substitution of an alternative section in the pleadings as there was no indication that the defendant was deceived or mislead because of the defect in the information. The charge was essentially the same but was amended to refer to the new Act which had replaced the Act under which the original charge was brought. This case highlighted, it was submitted, the difficulty for the Prosecutor in this matter where an essential element of the offence was to be amended.
8. In other cases referred to by the Third Defendant, Gilmour v Midways Springwood Pty Limited (1980) 49 FLR 36, Lineham and Australian Public Service Association (1982) 66 FLR 90 and Wakefield v Dowd (1979) 30 LGRA 217 the amendments to the pleadings allowed did not involve any expansion or variation in the substance of the offence.
9. The essential elements of an offence under s 76A of the Act require the Prosecutor to prove: i. an environmental planning instrument provides that specified development may not be carried out except with development consent on land ii. the defendants carried out development on land for which development consent was required without that development consent The essential elements of an offence under s 76A differ from those in s 76B of the Act. The particulars in the Summons filed in these proceedings in clauses (a) to (i) already set out particulars which cover the essential elements of an offence under s 76A (modified necessarily to reflect the 'existing use' nature of the activity at 9-31 Farr Street).
10. Given the late amendments of the pleadings sought the issue of whether the Defendants are prejudiced needs to be considered. The Prosecutor submitted that the Defendants were not prejudiced by the amendments in that they were not mislead or deceived as to the nature of the charges against them. This was not contested by the Third Defendant. The particulars contained in the Summons do already refer to the essential elements of an offence under s 76A of the Act. Accordingly I consider that leave should be granted to make the amendments sought in Orders 1 and 2 in the Notice of Motion .
11. It should be noted as it was raised in argument that had I found the Prosecutor was seeking to create a new offence under s 76A the application may well have been out of time. The period of time in which the activities to which the prosecutions relate is particularised in the Summons as on or about 19 July 2000 to 27 December 2000. The Notice of Motion seeking the amendments was filed in the Court on 18 January 2002.
12. The Prosecutor submitted that the amendments were allowed under s 125(1) of the Act. This section has no time limit and applies in situations where: any matter or thing is by or under this Act other than by or under the regulations, directed or forbidden to be done, …and that matter or thing if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act.

13. Another relevant section to consider however, is s 127(6) of the Act. That section provides: Proceedings for the following offences may be instituted at any time within the period specified in relation to the offence: (a) carrying out development, other than complying development, for which development consent is required without obtaining development consent - 12 months after the offence alleged to have been committed

14. I accept the Third Defendant's submission that s 127(6) is definitive rather than indicative in this matter. Given the particularity of s 127(6) in relation to the 12 month limitation on proceedings in relation to the offence of carrying out development for which development consent is required without obtaining development consent, it should take precedence over the application of s 125(1). If I had accepted the Third Defendant's argument that a new charge was being created then the time limit of 12 months to commence proceedings stated in s 127(6) clearly would have applied.
15. A further Order is sought by the Prosecutor in its Notice of Motion, Order 3, relating to the amendment of the Summons by deleting paragraph (d)(i) of the Particulars which refers to demolition works. This order was not objected to by the Third Defendant. I am prepared to allow that amendment.
16. As there was no argument as to costs, the decision on costs is reserved.
17. Accordingly, the following orders are made:

Orders In relation to the Notice of Motion filed on 18 January 2002 by the Prosecutor:

1. Orders 1, 2 and 3 are granted
2. Costs reserved.

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