Secretary, Department of Planning and Environment v Goodman Property Services - [2020] NSWLEC 52 - NSWLEC 2020 case summary — Zoe

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Secretary, Department of Planning and Environment v Goodman Property Services

[2020] NSWLEC 52

Land and Environment Court (NSW)|2020-02-06|Before: Moore J, Mr P, Mr J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2020-02-06

Before

Moore J, Mr P, Mr J

Catchwords

(2005) 139 LGERA 449 Environment Protection Authority v Riverina Australia Pty Ltd [2015] NSWCCA 165
(2015) 90 NSWLR 57 Environment Protection Authority v Truegain Pty Ltd [2013] NSWCCA 204
(2013) 85 NSWLR 125 Hannes v Director of Public Prosecutions (Cth) (No 2) [2006] NSWCCA 373
(2006) 165 A Crim R 151 Johnson v Miller [1937] HCA 77

Source

Original judgment source is linked above.

Catchwords

(2005) 139 LGERA 449 Environment Protection Authority v Riverina Australia Pty Ltd [2015] NSWCCA 165(2015) 90 NSWLR 57 Environment Protection Authority v Truegain Pty Ltd [2013] NSWCCA 204(2013) 85 NSWLR 125 Hannes v Director of Public Prosecutions (Cth) (No 2) [2006] NSWCCA 373(2006) 165 A Crim R 151 Johnson v Miller [1937] HCA 77(1937) 59 CLR 467 Kirk v Industrial Relations Commission [2010] HCA 1(2010) 239 CLR 531 Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2018] NSWCCA 202 Walsh v Tattersall [1996] HCA 26(1996) 188 CLR 77 Water NSW v Kiangatha Holdings Pty Limited

Judgment (30 paragraphs)

[1]

TABLE OF CONTENTS Introduction Factual background Relationship between Goodman and Burton The Blue Book The development The relevant statutory provisions The charges Facts relevant to the elements of the offence The requests for further and better particulars The written submissions and the hearing The common complaint by Goodman and Burton concerning the charges Outcome consequences The evidentiary foundation for the prosecutions Goodman's and Burton's alleged failures to comply with Condition E25 Introduction The alleged environmental harm Goodman's challenge to the charge Introduction Goodman's primary submissions Goodman's written reply submissions Burton's submissions Burton's primary submissions Burton's written reply submissions The Prosecutor's submissions Introduction The Prosecutor's written submissions The Prosecutor's oral submissions Consideration Analysis Conclusion Possible groupings of breaches Adjournment

[2]

Introduction

On 19 March 2019, the Secretary of the Department of Planning and Environment (the Prosecutor) commenced criminal proceedings against Goodman Property Services (Aust) Pty Ltd (Goodman) and Burton Contractors Pty Ltd t/as Burton Civil Engineering Contractors (Burton). In each instance, a single charge was laid alleging that development had been carried out at the Oakdale South Industrial Estate (the site), a location at Kemps Creek in Sydney's west, in breach of a condition of the development consent approving development of the site.
On 16 August 2019, Burton filed a Notice of Motion challenging the validity of the Summons directed to its activities.
On 20 August 2019, Goodman also filed a Notice of Motion challenging the Summons that had been issued to it.
As can be seen from the detail later set out, the outcome sought in each of the Notices of Motion is similar. Each of these motions came on for hearing before me on 6 February 2020, with this decision addressing my conclusions concerning the challenges to each of the Summonses.
On 17 May 2019, the Prosecutor filed a Statement of Facts that was common to the two proceedings. That Statement of Facts was included in the Joint Tender Bundle (Exhibit A, Tab 1) from Goodman and Burton and thus became evidence for the purposes of both Notices of Motion. The Prosecutor's Statement of Facts was transmitted by letter dated 17 May 2019 (which letter comprised the notice of the prosecution case as required by s 247E of the Criminal Procedure Act 1986). It is unnecessary to set out the terms of this statutory provision.
The material contained in the Prosecutor's Statement of Facts constituted particularisation of the elements relied upon by the Prosecutor for the purposes of each charge. It is to be observed that the s 247E notices to Goodman and Burton were in the form of a common notice issued to both of them. A variety of other documents were also provided as set out in that notice.
It is, however, appropriate to observe that the notice foreshadowed that three witnesses were proposed to be relied upon by the Prosecutor at hearing. Those witnesses were: 1. Stewart McLachlan (affidavit sworn 12 March 2019); 2. Ian Wright (affidavit affirmed 1 March 2019); and 3. Andrew Macleod (affidavit affirmed 20 February 2019). It will be necessary, later, to address in a little detail Mr Macleod's evidence.
However, the Prosecutor's Statement of Facts can be utilised to set out a range of uncontroversial matters that provide an appropriate context to understanding the nature of the charges laid against each of Goodman and Burton. It also enables a proper understanding of the basis upon which each of Goodman and Burton challenge the validity of the charge set out in the Summons commencing proceedings against them.

[6]

The development

The Prosecutor's Statement of Facts also includes, from [11] to [22], a useful summary of the development approval process and the state of the development. These paragraphs are in the following terms: Development application and approvals 11 On 28 January 2015, Goodman Property Services (Aust) Pty Ltd (Goodman) applied to the Minister for Planning to develop the site into warehousing and ancillary office space. It was proposed to divide the site into six development precincts, comprising 15 building envelopes. A copy of the Infrastructure Staging Plan (the Precinct Plan) outlining these precincts and building envelopes is Annexure 3 to these facts. 12 On 26 October 2016, a delegate of the Minister for Planning granted consent to Goodman to commence Stage 1 of the development of the site, subject to conditions as set out in Development Consent SSD 6917 dated the same date (the Consent). 13 Stage 1 of the development included: • staged subdivision; • construction of bulk and detailed earth works; • construction of internal estate roads, water, sewer, telecommunications and gas infrastructure; • construction of stormwater management devices; • installation of estate landscaping; and • construction of nine warehouses and distribution buildings across Precincts 1, 4 and 5 (as detailed in Schedule A of the Consent). Relevantly, Condition E25 in Schedule E of the Consent provides: Erosion and Sediment Control E25. During construction works, the Applicant shall implement and maintain best practice erosion and sediment control measures on-site, in accordance with the relevant requirements in the latest version of the Managing Urban Stormwater: Soils and Construction Guideline (Landcom). 14 The Managing Urban Stormwater: Soils and Construction Guideline (Landcom) is known colloquially in the construction industry as "The Blue Book". 15 The Blue Book (the latest edition of which was published in 2004) is a guide for local councils and the development industry on stormwater management - mainly erosion and sediment control - during the construction phase of urban development. It includes numerous best-practice techniques to reduce the impacts of land disturbance activities on waterways by better management of soil erosion and sediment controls on construction sites. 16 Appendix 2 of the Consent listed the approved Stage 1 DA drawings, including the Stage 1 civil drawings prepared by AT&L Associates Pty Ltd (AT&L), a civil engineering company engaged by Goodman to act as superintendent for the development of the site. These included drawing numbers C1071 Rev A through to C1083 Rev A dated 3 September 2015, being the Erosion and Sediment Control Plan, Sheets 1-13 (on page 27 of the Consent). 17 On 21 April 2017, a delegate of the Minister for Planning modified the Consent to approve various amendments to Stage 1 of the site's construction and design including, relevantly, amended bulk earthworks, estate infrastructure and landscaping works and amended creek realignment works. 18 Appendix 2 of the Consent was also amended, replacing the previous Erosion and Sediment Control Plan, Sheets 1-13 with drawing numbers C1071 Rev C through to C1083 Rev C, dated 19 September 2016. 19 Subsequent modifications were granted to the Consent for other stages of the development of the site, but they are not relevant to these proceedings. 20 Burton Contractors Pty Ltd T/as Burton Civil Engineering Contractors (Burton) also developed its own Erosion and Sediment Control Plans for the development of the site, comprising four plans (Revisions A-D) which Burton relied on from the start of construction of the site to at least 23 June 2017. 21 The earthworks and design component of the site is predominantly completed, with individual lots now available for development and/or occupation.

[8]

The charges

It is appropriate to reproduce the terms of each of the Summonses. The Summons in the Goodman matter is in the following terms: The Prosecutor claims: 1 An order that the Defendant, Goodman Property Services (Aust) Pty Ltd, of Level 17, 60 Castlereagh St Sydney, in the State of New South Wales, appear before a Judge of the Court to answer the charge that between about 11 February 2017 and 23 June 2017 it committed an offence against section 125(1) Environmental Planning and Assessment Act 1979 (the Act), in that, in carrying out development pursuant to a development consent granted under s89E of the Act, the Defendant did not comply with a condition to which the project approval was subject, contrary to s76A of the Act. Particulars: (a) Development consent Development Consent SSD 6917 granted on 26 October 2016 as modified from time to time (Development Consent). Further particulars of the modifications to the Development Consent are contained in the affidavit of Stewart McLachlan sworn (b) The development being carried out by the Defendant The project described in the Development Consent (Oakdale South Industrial Estate project). (c) Condition of the Development Consent the Defendant did not comply with Condition E25 of Schedule E to the Development Consent (d) Date on which evidence of the alleged offence first came to the attention of an authorised officer Evidence of the offence first came to the attention of authorised officer Stewart McLachlan on 20 June 2017 (e) Manner of breach At all relevant times the Defendant was, by itself, its servants and agents, carrying out the development comprising the Oakdale South Industrial Estate Project pursuant to the Development Consent. The Defendant did not comply with Condition E25 of Schedule E to the Development consent in that during construction works it did not implement and maintain best practice erosion and sediment control measures on the site in accordance with the relevant requirements in the latest version of the Managing Urban Stormwater: Soils and Construction Guideline (Landcom) 2 An order that the Defendant be dealt with according to law for the commission of the above offence. 3 An order that the Defendant pay the Prosecutor's costs. 4 Such other order or orders as the Court sees fit to make including under Part 8.3 of the Protection of the Environment Operations Act 1997.
The Summons in the Burton matter is in the following terms: The Prosecutor claims: 1 An order that the Defendant, Burton Contractors Pty Ltd, of Unit 3, 11-21 Underwood Rd Homebush, in the State of New South Wales, appear before a Judge of the Court to answer the charge that between about 11 February 2017 and 23 June 2017 it committed an offence against section 125(1) Environmental Planning and Assessment Act 1979 (the Act), in that, in carrying out development pursuant to a development consent granted under section 89E of the Act, the Defendant did not comply with a condition to which the project approval was subject, contrary to s76A of the Act. Particulars: (a) Development consent Development Consent SSD 6917 granted on 26 October 2016 as modified from time to time (Development Consent). Further particulars of the modifications to the Development Consent are contained in the affidavit of Stewart McLachlan sworn (b) The development being carried out by the Defendant The project described in the Development Consent (Oakdale South Industrial Estate project). (c) Condition of the Development Consent the Defendant did not comply with Condition E25 of Schedule E to the Development Consent (d) Date on which evidence of the alleged offence first came to the attention of an authorised officer Evidence of the offence first came to the attention of authorised officer Stewart McLachlan on 20 June 2017 (e) Manner of breach At all relevant times the Defendant was, by itself, its servants and agents, carrying out the development comprising the Oakdale South Industrial Estate Project pursuant to the Development Consent. The Defendant did not comply with Condition E25 of Schedule E to the Development consent in that during construction works it did not implement and maintain best practice erosion and sediment control measures on the site in accordance with the relevant requirements in the latest version of the Managing Urban Stormwater: Soils and Construction Guideline (Landcom) 2 An order that the Defendant be dealt with according to law for the commission of the above offence. 3 An order that the Defendant pay the Prosecutor's costs. 4 Such other order or orders as the Court sees fit to make including under Part 8.3 of the Protection of the Environment Operations Act 1997.
As can be seen, the terms of the charge against Burton, and its particularisation, are identical to the terms of the charge against Goodman.

[12]

The common complaint by Goodman and Burton concerning the charges

In terms of outcomes sought, each Notice of Motion was in the same terms - seeking that the Summons be quashed and set aside but, in the alternative, seeking an order that the proceedings against each Defendant be permanently stayed. The grounds set out in each Notice of Motion were also in identical terms, as follows: 1 The alleged offence in the Summons (as particularised in the Summons and by the particulars provided by the Prosecutor in its Statement of Facts filed on 17 May 2019, and by letter dated 26 July 2019) is duplicitous because the Summons charges more than one offence in the one count of alleged contravention of s 76A of the Environmental Planning and Assessment Act 1979. 2 The Summons, as particularised, alleges multiple offences being multiple different failures to implement and maintain best practice erosion and sediment control measures in accordance with unspecified "relevant requirements" of the Managing Urban Stormwater: Soils and Construction Guideline (the Blue Book), each of which is capable of constituting a breach of Condition E25 of Schedule E to the Development Consent (SSD 6917). 3 The Prosecutor's particularisation of the charge provide examples of multiple alleged breaches of "relevant requirements", for example, at paragraph 42 of the Statement of Facts and at response (d) to the response to the request for particulars, provided in the Prosecutors letter of 26 July 2019 (the latter responses refer to the report and supplementary report of Andrew Macleod that itself discloses multiple alleged breaches of Condition E25), each of which is capable of constituting a breach of Condition E25 of Schedule E to the Development Consent (SSD 6917). 4 Further, and in addition to grounds 1, 2 and 3, the Summons is affected by latent duplicity or uncertainty, as the Summons, the particulars (in the Statement of Facts and letter of 26 July 2019) and the material provided in the Prosecution Brief (considered either separately or together) do not provide sufficient information to allow the location and nature of the works (or failure to carry out works) alleged to have breached the requirements the Blue Book to be identified. 5 The Summons being duplicitous and uncertain, the Court lacks jurisdiction to proceed to trial or to hear these charges, and the Summons must be either dismissed, with the charge being quashed or set aside, or permanently stayed, as a result.

[14]

The evidentiary foundation for the prosecutions

The principal evidentiary foundation for the prosecutions comes from two reports by Mr Andrew Macleod. Mr Macleod provided a short affidavit dated 20 February 2019, an affidavit filed by the Prosecutor in March 2019 and reproduced at Tab 3 in Exhibit A. Mr Macleod's affidavit notes that he is an environmental scientist specialising in the fields of erosion and sediment control and soil science. He noted that he was employed by Strategic Environmental and Engineering Consulting Pty Ltd (SEEC). His affidavit further noted that he had been requested by the Prosecutor to prepare two expert reports in relation to erosion and sediment control at the site.
A copy of his primary expert report was annexed to his affidavit and was reproduced as Annexure A to it. This expert report was dated 21 December 2018. Mr Macleod's supplementary report, dated 16 January 2019, was Annexure B to his affidavit. These two documents were included in Exhibit A at Tab 3 behind Mr Macleod's short affidavit.
One element of his primary report was a marked-up air photograph (Figure 5 at page 11) showed a range of numbered locations around the site, which provided the basis for his various observations concerning the alleged breaches of the requirements of the Blue Book and, hence, breaches of Condition E25 of the development consent granted to Goodman. A copy of this marked-up air photo is reproduced as Annexure A to this decision. The marked-up air photo in Annexure A is described by Mr Macleod (Exhibit A, Tab 3, page 10), under the heading 3.1 Photograph and Referred Locations, as: Figure 5 provides an aerial image of the site showing the location and direction of each of my photo graphs and other locations referred to in my report.
This image provides a useful broad understanding of the range of locations across the site where Mr Macleod describes and photographs what are said to be breaches of the Blue Book and thus breaches of Condition E25.

[16]

Introduction

I have noted above that the principal documentary evidentiary material relied upon by the Prosecutor comprises two expert reports by Mr Andrew Macleod. A number of matters warrant noting concerning this material.
At 3.2 Observations of Mr Macleod's primary report, he said: The following points provide a summary of my observations during my inspection of the site on 23 June 2017: At the time of my inspection, the overall level of erosion and sediment control was very poor. I noted the following deficiencies: Mr Macleod then set out 16 bullet points (pages 12 and 13 of his primary report) listing what he considered were those deficiencies and then set out nearly four further pages of detailed observations; observations that referred to, amongst other things, a series of photographs reproduced as Figures 7 to 25 in his report.
After this section, his primary report included 4 Assessment of compliance with consent Condition E25. At 4.2 Assessment (Exhibit A, Tab 3, page 28), Mr Macleod introduces his discussion, saying: In my opinion the works did not comply with this condition [E25] at any time in the period 11 February 2017 to 23 June 2017 inclusive. The Blue Book includes numerous best practice techniques for the effective implementation of erosion and sediment control on construction sites. During my site inspection, I identified numerous areas of non-compliance with the Blue Book including (but not limited to):
Mr Macleod then set out 15 areas of what he described as the areas of non‑compliance. At least two of those areas contained a range of subidentification of alleged failures.
The Prosecutor's Statement of Facts sets out, at [41] to [44], what the Prosecutor asserts were the circumstances (drawn from Mr Macleod's reports) of the failures of Goodman and Burton to comply with the relevant requirements of the Blue Book. This material was in the following terms: 41 Between 11 February and 23 June 2017, during the bulk and detailed earthworks phase of construction, Goodman and Burton both failed to implement and maintain "best practice" erosion and sediment control measures at the site, in accordance with the relevant requirements in the Blue Book. 42 For example, Goodman and Burton: (a) failed to construct Basins B, C and D, as indicated on the Precinct Plan, inconsistent with ss 6.1.3(d)(ii); 6.3.2(b) and (d); 6.3.7(a) and (e) of the Blue Book; (b) failed to properly construct or maintain Basins A and E, inconsistent with ss 1.6.1(a)(vii); 6.3.3(a) and (b); 6.3.3(j)(i), (ii) and (iv); 6.3.3(k) and (l); 6.3.4(d) and (j); 8.1(b); 8.2(b)(ii); 8.2(h)(v); 8.2(l); Standard Drawing 6-4; and Appendix E, ss E3 and E4.1 of the Blue Book. Specifically: (i) neither Basin A nor E had been properly constructed to perform effectively; (ii) the wall of Basin E had been damaged by overflows and had not been repaired; (iii) neither Basin A nor E had a stable, lined spillway; (iv) neither Basin A nor E had a marker peg (or equivalent) to show the full-of-sediment volume; (v) neither Basin A nor E had effectively-stabilised earth walls; and (vi) the capacity of Basins A and E had not been restored within five days after rainfall; (c) failed to implement and maintain adequate erosion and sediment controls on the site, such as sediment basins, sediment fences and mulch bunds, to contain the volume of water and sediment generated from the site, inconsistent with ss 1.6.1(a)(ii); 1.6.2(d)(v); and 8.1(c) of the Blue Book; (d) failed to implement and maintain effective and lined diversion of run-on water from upslope through or around the site in a manner that avoided the water from becoming sediment-laden or from mixing with sediment-laden runoff from the site, inconsistent with ss 1.6.1(a)(v); 1.6.1(b); 5.4.1(b); 5.4.3(b); and 6.3.2(f) of the Blue Book; (e) failed to implement and maintain sediment controls that were adequate for the size of the site and the contributing catchments, overly relying on sediment fences in areas where there should have been sediment basins, inconsistent with ss 6.1.3(d)(ii); 6.3.2(b) and (d); and 6.3.7(a) and (e) of the Blue Book; (f) failed to implement and maintain on-ground works in accordance with the Erosion and Sediment Control Plans for the site, inconsistent with ss 1.6.1(a)(ii); 2.1(a); 2.3(g); and 8.1(d) of the Blue Book; (g) failed to implement and maintain adequate drainage of the site, inconsistent with ss 1.6.1(a)(v); 5.4.1(a) and (c); 6.1.3(d)(ii); and 6.3.2(b) and (f) of the Blue Book, causing the majority of the runoff from the disturbed work areas not to flow into the sediment basins; (h) failed to implement and maintain sediment controls in appropriate locations, inconsistent with ss 6.3.2(f); and 6.3.7(e) of the Blue Book, for example, sediment fences and mulch bunds should have been placed in areas of concentrated flow; (i) failed to implement and maintain 'returns' at regular intervals along the sediment fences to minimise the risk of water flowing along the backside of the fence, inconsistent with s 6.3.7(e) and Standard Drawing 6-8 in the Blue Book, resulting in 'point-loading' along the sediment fences and rapid overtopping during rainfall which caused many of the sediment fences to fail; (j) failed to implement and maintain sediment controls downslope for about 150m from where extensive ground-disturbing and stockpiling works were taking place under and near the power line easement in the southern third of the site, inconsistent with ss 1.6.1(a)(iii); 1.6.2(d)(ii); 4.3.2(h)(iv); and Standard Drawing 4-1 of the Blue Book; (k) failed to implement and maintain erosion and sediment controls prior to stripping topsoil at the site, inconsistent with s 1.6.1(d)(iv) of the Blue Book; (l) failed to conduct works in the Middle Ropes Creek Realignment in such a way as to minimise the generation of sediment and allow for the clear passage of upslope 'clean' water, inconsistent with ss 1.6.1(a)(v); 5.3.3(b)(i); 5.4.1(a), (b) and (c); and 5.4.3(b) of the Blue Book; (m) failed to implement and maintain sufficient sediment controls in the far south of the site, resulting in runoff from exposed work areas being directed into a pipe which then discharged directly offsite into Ropes Creek, inconsistent with ss 1.6.1(b); 5.4.4(c), 6.1.3(d)(ii) and 6.3.7(c) of the Blue Book; (n) failed to implement and maintain: temporary stabilisation of areas where works had been suspended for more than 20 days; or progressive stabilisation or rehabilitation of completed areas, inconsistent with ss 1.6.1(a)(iii); 7.1.1(a); 7.1.2(d) and Table 7.1 of the Blue Book; (o) failed to implement and maintain covers over stockpiles to a C-Factor of 0.1 (i.e. approximately 60% cover) within 10 days of formation, exposing them to erosion, inconsistent with Tables 3 and 7.1; Standard Drawing 4-1; and s 4.3.2(h)(ii) of the Blue Book; (p) failed to regularly maintain the sediment controls that were on Site, inconsistent with ss 6.3.4(d) and (j); and 8.1(a) of the Blue Book. Specifically: (i) sediment that had breached the sediment controls had not been cleaned-up and had been deposited in the grass downstream, inconsistent with s 8.1(b) of the Blue Book; (ii) sediment behind some of the sediment fences had not been cleaned out following periods of dry weather, causing the sediment to build-up, inconsistent with ss 6.3.7(d) and 8.2(b)(iv) of the Blue Book; (iii) numerous sediment fences had fallen down as a result of the build-up of water and had not been repaired during the periods of dry weather, inconsistent with s 8.1 (b) of the Blue Book; and (iv) a sediment fence adjacent to Basin A had been cut prior to 11 February 2017, and had not repaired by 23 June 2017, inconsistent with ss 8.1(b) and 8.2(l) of the Blue Book. 43 Goodman and Burton's lack of sediment control also demonstrates poor environmental planning and management, inconsistent with ss 1.6.1(a)(iii); 1.6.2(d)(ii); 4.3.2(h)(iv); and Standard Drawing 4-1 of the Blue Book. 44 Burton's Erosion and Sediment Control Plans also contained insufficient detail, incorrect calculations and numerous significant omissions, inconsistent with s 4.1 of the Blue Book. Goodman and Burton also failed to fully implement these plans, and the plans prepared by AT&L, between 11 February and 23 June 2017.
It is to be observed that [42] of the above extracted material asserts that the many detailed points contained in its various subparagraphs are merely examples of what are said to be breaches of Condition E25. The list is not said by the Prosecutor to be exhaustive.
At this point it is also appropriate to note that the question of whether identification of alleged breaches of multiple provisions of the Blue Book (for example, as at 42 of the Prosecutor's Statement of Facts) also potentially gives rise to different issues of duplicity not here engaged, if that single instance at 42 had been charged separately.
With respect to this position, I note that Mr Ireland set out, in a 15-page annexure to his written submissions, an extensive list of what is said to be a dissection the multiple Blue Book matters arising out of the various elements listed by the Prosecutor in each of 42) to 42 of the Prosecutor's Statement of Facts. Mr Ireland proposed that what was encompassed by 42 to 42 could, in fact, be regarded as over 190 separate alleged breaches of Condition E25 (as detailed in his annexure).
Although I noted this possibility to the parties during the course of the proceedings, it does not require consideration given that the defects in the charges alleged by both Goodman and Burton arise at a much higher level of generality. As a consequence, it is unnecessary for me to address these matters at this stage in the proceedings and I do not need to engage with matters at that level of detail.

[18]

Introduction

The essence of Goodman's complaint, as a general proposition, can be seen from [10] and [13] of the written submissions on behalf of Goodman. These paragraphs were in the following terms: (10) The Blue Book contains dozens of specific separate measures, both in writing and in diagrammatic form and, as is evident from the particulars subsequently provided, the prosecutor alleges that the defendant contravened a multitude of them on separate identifiable occasions in different ways at different places and times during the charge period. … (13) When one has regard to the reports of Mr Macleod that are therein adopted as the particulars by the prosecutor, two propositions are established: (a) First of all, there is patent duplicity, because it is evident that the prosecutor alleges that the defendant engaged in separate conduct at different times and places on at least 22 occasions alleged to have been in contravention of one or more requirements of the Blue Book, each of which would constitute a separate offence. (b) Secondly, there is latent duplicity, because, in addition to identifying at least 22 separate alleged contraventions of requirements of the Blue Book, statements made by Mr Macleod in his evidence adopted as particulars by the prosecutor, leave open that there are, or may be, other, unspecified contraventions of the requirements of the Blue Book. This is perhaps most clearly demonstrated by Mr Macleod's statement in his report dated 21 December 2018 Part 4, lines 450 to 453 (adopted as its particulars by the prosecutor): "The Blue Book includes numerous best practice techniques for the effective implementation of erosion and sediment control on construction sites. During my site inspection, I identified numerous areas of non-compliance with the Blue Book, including (but not limited to)…": [emphasis added for the purpose of these submissions]
Then followed, between [14] and [17], lists, using various bases of characterisation, upon which it was submitted the Prosecutor had rolled up multiple offences which should have been subject to separate charges.

[19]

Goodman's primary submissions

Without meaning to be disrespectful to counsel for Goodman, the propositions advanced by Goodman's written submissions, and by Mr Howard's oral submissions in support of them, are of comparatively short compass. For convenience, I have arranged them to set out the following chain of reasoning: 1. In Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 Dixon J said, at 489: For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge. 1. This proposition was confirmed as remaining good law by the plurality of the High Court in Kirk v Industrial Relations Commission [2010] HCA 1; (2010) 239 CLR 531 at [26]. 2. Although in a different statutory context (being a prosecution for breach of an environment protection licence issued pursuant to the Protection of the Environment Operations Act 1997 (the POEO Act), Goodman submitted that, by analogy, the decision in Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125; [2013] NSWCCA 204 (Truegain) provided relevant assistance to Goodman in the present context. 3. In Truegain, Leeming JA referenced Johnson v Miller and, at [52], cited the following passage from Hannes v Director of Public Prosecutions (Cth) (No 2) [2006] NSWCCA 373; (2006) 165 A Crim R 151 where Basten JA said, at [9]: 9 There are two steps in the process of identifying duplicity or uncertainty. The first is to consider the statutory description of the offence in order to identify what is the act or conduct prohibited. The second is to identify the act or conduct set out in the pleading as constituting the offence in the particular case. Where a particular act is prohibited if it has one of a number of qualities, it is likely that only one offence is committed in relation to each act, even if such an act has more than one of the proscribed qualities. It is the second of the steps set out by Basten JA above that Goodman says is not satisfied for the purposes of the charge laid against it. 1. At [65] in Truegain, his Honour said: 65 … Section 64 brings all forms of contraventions of licence conditions into a single section. But that merely requires one to turn to the conditions of the licence alleged to have been contravened. Although the prosecutor has relied only on a contravention of condition O.1, that of itself cannot in my view be determinative of the question of duplicity. The question is one of substance, not form, and as soon as one considers the activities which are authorised by the Licence and which are particularised by the prosecutor, one can immediately see the distinct conduct (both acts and omissions) which suffices to constitute an offence. 1. His Honour continued, at [72], to note that matters of fact and degree are apt to arise where duplicity is alleged. His Honour continued to make it clear that, in that instance, there was a distinct difference between an allegation of a failure to store, and one of a failure to treat, the substances, the discharge of which had given rise to the prosecution. In adopting this position, the EPA's submission had earlier (at [62]) been recorded as: The EPA also submitted (paragraph 78): "It matters not, for proof of the offence, how often, or in how many ways, the licensee failed to carry out the scheduled activities in a competent manner. The respondent was alleged to be guilty of one offence, and one offence only, during that period. The particulars provided the circumstances, over that period, in which the applicant alleges the respondent was not competent in carrying out its licensed activity. The fact that those particulars identify a number of circumstances in which the applicant alleges the respondent was not carrying out its activities in a competent manner is not an allegation of more than one offence. The Condition was breached by the conduct of the respondent that demonstrated the scheduled activities were not carried out in a manner that was competent." This proposition was rejected with his Honour. The failure to separate the separate elements was fatal to the charge relied upon by the EPA (at [63]). 1. In Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2018] NSWCCA 202 (Tropic Asphalts), Bathurst CJ noted (at [50]) that the strict approach to the question of duplicity remains the law in this country. It was submitted for Goodman that the same type of deficiencies evidenced in Tropic Asphalts, so as to render a single rolled-up charge impermissible, were also present in the Prosecutor's approach in these proceedings. 1. In Environment Protection Authority v Riverina Australia Pty Ltd [2015] NSWCCA 165; (2015) 90 NSWLR 57 (Riverina Australia), the charge that was laid against the company was one of polluting waters, a breach of s 120 of the POEO Act. The evidence which was proposed to be adduced by that prosecutor revealed that there were multiple possible ways the alleged pollutant could have been discharged from the company's property. Each of those potential methods of discharge was capable of founding a separate charge pursuant to the statutory provision. Consistent with what Hall J observed at [108] in Riverina Australia, it is necessary that "a particular act, omission, operation, place, equipment or processes (ie, the manner of contravention)" is required to be identified. This, Goodman says, has not occurred in these proceedings and the charge is, therefore, patently duplicitous. 1. Finally, in Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26 (Walsh v Tattersall), Kirby J addressed the question of duplicity (other members of the Court addressing the defects in the charges under appeal in a different fashion, but to the same conclusion). In addition, to confirm that a strict approach to issues of duplicity remained the law in Australia, his Honour set out, at 108, a number of possible bases upon which it might be possible to conclude that a rolled-up charge was permissible. Those elements, Goodman submitted, were entirely dissimilar to what the Prosecutor proposed in these proceedings.
The position advanced on behalf of Goodman, therefore, is that the present charge and its particulars derived from the Prosecutor's Statement of Facts at [42] is patently duplicitous, as what is disclosed from that document is clearly a multiplicity of events not forming part of a single criminal course of conduct and thus they are events which should have been charged separately.
Goodman also submits that the fact that the combination of the Prosecutor's Statement of Facts and the evidence as set out in Mr Macleod's affidavit and its attached reports makes it clear that there are other potential elements of allegedly offending conduct on behalf of Goodman and Burton that are not disclosed and particularised and this, separately, demonstrates latent duplicity.

[20]

Goodman's written reply submissions

The Goodman reply submissions cite what Kirby J had observed in Walsh v Tattersall at 111: Unless a tight rein is kept upon the prosecution practice of rolling up allegedly connected events and presenting them under a single charge, much prejudice can be done to an accused person by the admission of evidence of a generally inculpatory character which would not be allowed under the similar fact rule of evidence and if the rule of specificity of pleading criminal charges continued to be insisted upon. …
It was submitted that permitting this single charge to stand would breach this principle.
Goodman's written submissions in reply dealt with the Prosecutor's assertion that what was here charged could be regarded as arising out of a continuing course of conduct. The submissions set out what was said by Hall J in Riverina Australia, at [96], to be a general proposition, namely: The general rule is that unless the allegation constitutes a continuing offence or offences which are closely related amounting to one activity, they should be charged separately.
It had earlier been submitted for Goodman: … Each allegation of an omission constituting a breach of a requirement of the Blue Book, if it is to be pressed, must be charged separately.
The submissions had earlier observed (at [5]) that Kirby J had said in Walsh v Tattersall, at 107, that some grouping of offending conduct could be permissible if they were "carried out in very close proximity to each other, within a few minutes of time and in close physical proximity".
With respect to the present charge, the Goodman reply submissions said: 6 By contrast, the actions particularised by the prosecutor in this case as giving rise to liability occurred at widely differing times and locations and involve allegations of breach of a range of specific requirements. They cannot be the subject of a single charge on the basis that they were within a few minutes of time and in close physical proximity. …
Therefore, Goodman submitted, there was no basis upon which the charge against Goodman could be said not to suffer from duplicity.

[24]

The Prosecutor's written submissions

To understand the basis upon which this was put by the Prosecutor, the Prosecutor's written submissions at [17] to [29] encapsulated, concisely, the basis upon which the Prosecutor proposes I should conclude that there is no defect with the single charges as laid against each of Goodman and Burton. These paragraphs (footnotes omitted) are in the following terms: Correlation of the statutory provisions and the charge and its particulars 17 By reference to the legal elements that, by s 125, the Secretary has the burden of proving and to the particulars of this case, the Secretary alleges against each defendant, and must prove, the following: (1) The defendant carried out a development - namely 'Oakdale South Industrial Estate project' as described in the relevant development consent (see (2)). (2) The development was carried out pursuant to a development consent - namely, Development Consent SSD 6917 granted by a delegate of the Minister for Planning on 26 October 2016. (3) The development consent was granted subject to a condition - namely, Condition E25. (There were other conditions, but Condition E25 of the relevant one for the purposes of this prosecution.) (4) In carrying out the development, the defendant failed to comply with the condition: the Secretary has particularised this failure by identifying multiple components. 18 There is thus a close and proper correlation between the statutory offence and the charge brought by the Summonses in this case. 19 It does not appear that elements (1) to (3) above are controversial, but element (4) is. In particular, both defendants contend that, by reason of the multiplicity of components in the Secretary's particularisation of the failure to comply with Condition E25, the charge is bad for duplicity and uncertainty, and that relief should follow. The charge is not duplicitous. 20 Although the charge has been summarised above by reference to four essential elements, the alleged conduct of the defendants involves two elements: the carrying out of the development, and the failure to do what the condition required. It does not appear controversial to say that the former element was singular in nature: there was but one development and the many activities undertaken by the defendants were but one act of carrying out the development. 21 The issue in the present case is whether the failure to do what Condition E25 required amounted to a single omission capable of being covered by a single charge or was necessarily several acts and/or omissions requiring several charges. 22 Condition E25 is in the following terms: During construction work, the Applicant shall implement and maintain best practice erosion and sediment control measures on-site, in accordance with the relevant requirements in the latest version of the Managing Urban Stormwater: Soils and Construction Guideline (Landcom). (The Guideline is often called 'the Blue Book'.) 23 Condition E25 thus required the developer to have certain 'erosion and sediment control measures'. Properly construed, the condition referred to set of control measures and imposed upon the developer a single, continuing obligation to have that set of measures in place. No doubt a near-endless list of possible deficiencies and delinquencies could be imagined, and any single one of them might constitute a failure to implement and maintain the control measures (and thus amount to an offence against subs. 125 (1)). But it is also the case that several deficiencies and delinquencies - acts and omissions - could, in combination constitute a failure to have in place the required control measures. 24 If, for example, a development consent was given subject to a condition in terms the same as Condition E25 and the developer did nothing at all to implement erosion and sediment control measures then it would be permissible to charge the developer with a single offence. It would not be necessary to charge a separate offence for every applicable detail of the Blue Book in order to reflect the scope of the offending. So it is also in a case in which the developer did something, but not enough to meet the requirement. 25 The nature of Condition E25 may be contrasted with another kind of condition. If a condition of a development consent stipulated that the developer could not during the development install any structure (permanent or temporary) higher than six metres, and the developer then, during the development, deployed four ten-metre-high cranes and built an eight-metre-high watchtower, then the developer would have committed five offences and five charges would have to be late to cover them. The present case is not such a case. 26 Rather, the several particular components or instances of the defendant's failure to comply with Condition E25 were in the nature of omissions. Whilst the act/omission dichotomy is not decisive, and it is necessary to look to the substance of an alleged breach rather than the form in which it is expressed, it is generally and often easier for a prosecutor to sustain a set of omissions as being components of a single failure to comply with a condition. This is such a case: the defendant's multiple omissions together amounted to a large-scale omission to do what Condition E25 required. 27 Many of the components of the alleged non-compliance with Condition E25 are omissions that are expressed as omissions and therefore readily seen to be omissions. One example is the first item in the list of 'multiple alleged areas of non-compliance with the Blue Book' given in Goodman's submissions at [14 (1)]: 'No effective, lined diversion of run-off from upslope through or around the work'. Another example is the first item in the corresponding list provided with Burton's submissions (Annexure A, Item (a) (1)): 'Failed to construct Basin B as indicated on the Precinct Plan'. 28 However, even (alleged) non-conformities that have been described in positive terms that might be taken as suggesting an act of non-compliance can in substance be seen in this case to be alleged omissions. For example, in its submissions at [14 (8)], Goodman cites this: Run-off from exposed work areas on the far south of the site was discharged directly into Ropes Creek in breach of s.5.4.4(c), s.6.1.3(d)(ii), and s.6.3.7(e) of the Blue Book. Paragraph 5.4.4(c) of the Blue Book says (emphasis added in order to highlight the essential nature of the requirement imposed: Where water diversion structures will outlet to downstream receiving waters (Section 5.3.5), ensure suitable water quality and quantity control structures are installed so that discharges meet the relevant guidelines. Ideally, discharge rates should mimic natural flows in terms of magnitude, seasonality, frequency and variability. Place any water quality and quantity control structures above the riparian zone, such as oil/grease interceptors, sediment traps/basins, litter traps, constructed wetlands and detention basins. 6.1.3(d) says (emphasis added): The approach should be implemented completely to ensure that the desired degree of soil and water management is achieved. To be effective, it should address control/mitigation of pollution of suspended solids through reduction of soil erosion and minimisation of sediment pollution using: (i) …; and (ii) system controls that reduce the quantity of suspended solids reaching receiving waters, such as sediment retention basins, sediment traps and constructed wetlands. And par. 6.3.7 (e) says (emphasis added): Some filters are constrained by external design criteria, including sediment fences and straw bale barriers (Standard Drawings SD 6-7 and SD 6-8 and figure 6.9). They should be able to withstand the erosive forces from the design storm event, usually the 10 year ARI time of concentration event and, therefore, should not be placed in areas of concentrated water flows. Catchment areas of sediment fences can be constrained by building them along the contour with periodic small returns (figure 6.10) creating several subcatchments. Because these systems are prone to failure in relatively small storm events, subcatchment areas should be sufficiently small to constrain maximum flows to 50 litres per second in the design storm event should all water discharge at one point. Each of these inter-related paragraphs of the Blue Book imposed a positive requirement to do something. Although they undoubtedly had the purpose of preventing environmental harm, the paragraphs in question did not prohibit particular acts. Once their true nature is understood, it can be seen that the alleged non-conformity ('Run-off… was discharged') is properly construed as an omission to take the needed steps that were prescribed to prevent such run-off. As such, it is readily included as part of a wider failure to comply with Condition E25 and not as a separate breach of a condition. 29 The Secretary is alleging an offence comprising an act (the carrying out of the development) and an omission (the failure to comply with Condition E25). The latter is said to be duplicitous. However, once the nature of the condition (both its drafting and its substance), and the substantive nature of the alleged non-conformities, are examined it can be seen that the non-conformities can properly be characterised as parts of a single, large failure to do what Condition E25 required. Accordingly, the charge is not duplicitous.

[26]

Analysis

Duplicity may be either patent or latent. The first is present when a Summons itself discloses, from a proper understanding of its terms, more than one offence. The second potentially also arises here because Goodman and Burton each say that the way in which the Prosecutor's case is advanced subjects each of them to the possibility of being convicted of one or more distinct offences not particularised in the Prosecutor's Statement of Facts supporting the single charge laid against each of them but to be inferred from the language of that document and from Mr Macleod's evidence.
As is the complaint advanced for Goodman and Burton in each of these matters, patent duplicity will arise where what can be shown is that Goodman and Burton have each been charged in one count with the commission of one or more separate and unpleaded offences: see Walsh v Tattersall and Truegain.
I have earlier set out what was said by Basten JA in Hannes v Director of Public Prosecutions at [9] - it warrants repetition as it requires further consideration at this point: There are two steps in the process of identifying duplicity or uncertainty. The first is to consider the statutory description of the offence in order to identify what is the act or conduct prohibited. The second is to identify the act or conduct set out in the pleading as constituting the offence in the particular case. Where a particular act is prohibited if it has one of a number of qualities, it is likely that only one offence is committed in relation to each act, even if such an act has more than one of the proscribed qualities (emphasis added).
It is the second step, as earlier noted, that is put in question by these challenges by Goodman and Burton.
In Truegain, Leeming JA observed, at [73]: Ultimately, but to my mind revealingly, the EPA complained that (written submissions at paragraph 6) (references omitted): "a large amount of highly probative evidence will be inadmissible in the prosecution of the respondent, which, in effect, will substantially weaken the applicant's case against the respondent. Thus, the respondent will not be exposed to the full alleged criminality that is proposed to be alleged against it."
His Honour's response to that submission was set out at [74] in the following terms: In my opinion, that submission tends to expose the true position of the EPA - which is that the full alleged criminality is more serious than the single charge in the Summons. That is precisely the vice to which the statements made by Dixon and Evatt JJ extracted above in Johnson v Miller were directed. The EPA's stance is contrary to what Evatt J said was an "essential part of the concept of justice in criminal cases".
In essence, the position advanced by Goodman and by Burton in these proceedings is that that comment is equally applicable to that which is sought to be wrapped up in the single charge laid against each defendant in these proceedings. Acceptance of the applicability of Leeming JA's conclusion, at [74], in Truegain to the circumstances in each of these prosecutions will result in a finding of duplicity in each matter. It therefore follows that, taking appropriate guidance from the authorities, I need to turn to consider what are the circumstances here applicable and what conclusion is to be drawn from them.
As earlier noted for both Goodman and Burton, in Walsh v Tattersall, at 108, Kirby J said: Various indicia are proposed to sustain a single count against the charge of duplicity, notwithstanding that it may permit evidence to be adduced of events which, taken individually, could constitute separate offences. The indicia include: (a) the connection of the events in point of time; (b) the similarity of the acts; (c) the physical proximity of the place where the events happened; and (d) the intention of the accused throughout the conduct. Perhaps an indication of the considerable difficulty of the task to be found is in the fact that, in many of the leading cases, there is (as in this case) a division of judicial opinion …
In Riverina Australia, at [98], Hall J observed: 98 Acts or omissions, disparate in nature and content, involving different items of plant or different work systems, operations and procedures or different locations on particular premises in cases involving prosecutions for breach of statutory obligations to provide and maintain a safe working environment have been held to be duplicitous: Chugg v Pacific Dunlop Ltd [1988] VR 411; Boral Gas (NSW) Pty Ltd v Magill (1995) 37 NSWLR 150 at 179. The conduct particularised in a Summons in such cases provides the basis for determining the discrete or separate offence charged.
Although in a different statutory context (there, occupational health and safety law), the propositions enunciated are equally applicable as a matter of principle in these proceedings.
Each of the above passages cited from Walsh v Tattersall and Riverina Australia are reflective of the necessity to consider whether (and, if so, how) a range of disparate events could be regarded as inextricably linked so as to constitute a single course of conduct (as is said to be the basis for the single charge laid against each of Goodman and Burton in these proceedings). The disparate events, relevantly, are those set out in the Prosecutor's Statement of Facts earlier quoted at [36] and as subject to the analysis on behalf of Goodman, described at [43], and on behalf of Burton, described at [39].
As Robson J observed in Water NSW v Kiangatha Holdings Pty Limited; Water NSW v Laurence Natale [2019] NSWLEC 185, at [30]: 30 … Therefore, when it appears that a count in a Summons charging an offence is equally capable of referring to a number of occasions, each of which constitutes the offence the legal nature of which is described in the count, the prosecution should identify the occasion which is said to give rise to the charge: Riverina at [94], referring to S v The Queen (1989) 168 CLR 266; [1989] HCA 66 at 282. Relevant to the present matters, unless the allegation constitutes a continuing offence (or offences which are closely related so as to amount to one activity), they should be separately charged: Truegain at [50], Walsh at 107 and Riverina at [96].
The reference to S v The Queen (1989) 168 CLR 266; [1989] HCA 66 at 282 takes one to what was said, relevant to that with which I am here dealing, in the passage from the judgment of Toohey J where his Honour said: But it does mean that, as soon as it appears that a count in the indictment is equally capable of referring to a number of occasions, each of which constitutes the offence the legal nature of which is described in the count, the prosecution should identify the occasion which is said to give rise to the offence charged.
I have earlier described the extraordinarily broad range of separate and discrete aspects of the activities undertaken on the site, as observed by Mr Macleod and set out in his written evidence (see [33] to [35] above).
I have earlier set out the terms of the Summons against each of Goodman and Burton. Each Summons alleges that the breach of Condition E25 was "between about 11 February 2017 and 23 June 2017". For the purposes of this consideration of whether or not the complaint of patent duplicity should be upheld, I disregard any potentially inherent imprecision of timing of any offence element potentially arising from the description of the charge period. I do so for the reasons discussed by Smart AJ in Bentley v Gordon [2005] NSWCCA 157; (2005) 139 LGERA 449 at [55] and [56].
Although I set aside, for present purposes, timing issues which may arise with respect to the complaints by the Defendants in each of these proceedings, I am satisfied that the other elements of a factual nature concerning the various idiosyncratic activities described by Mr Macleod do provide valid bases for complaint.
Although, at a very high level of generality, all these activities can be regarded as falling within the general rubric of earthworks and are works which would have attracted the operation of Condition E25 of the development consent. When they are examined more closely, it is clear that there is not one single course of conduct as a continuous process. What can be discerned is a series of discrete acts which, although taking place on the same large site (see Annexure A and AT&L Staging Plan at Exhibit A, Tab 1, attached page 3), cannot be regarded as being, in any particularity, typologically, temporarily or spatially related. This can clearly be seen from Annexure A to this decision and the detailed range of different activities set out in the Prosecutor's Statement of Facts at [36].

[27]

Conclusion

The consequence of this, I have concluded, is that what is here sought to be rolled up in the single charge in each Summons is impermissible.
The conclusion that I have reached is that the elements that arise from Mr Macleod's evidence (as specified in the Prosecutor's particulars and as summarised in the Prosecutor's Statement of Facts reproduced at [36]) are sufficiently geographically separated and unrelated, as well as being of a range of separated causes/different outcomes, to cause the present single charges to suffer from patent duplicity.
In reaching this conclusion, it is unnecessary for me to dissect Mr Macleod's evidence in the fashion undertaken by counsel for Goodman and for Burton to determine how many separate breaches are so sought to be aggregated. It is merely sufficient that I conclude that what is here involved are multiple separate occurrences of what might be alleged to be breaches of Condition E25 that have impermissibly been sought to be rolled up in the single charge pressed against each of Goodman and Burton.
I now turn to the question of latent duplicity. This element of the complaints by Goodman and Burton can be dealt with concisely.
It is to be observed that, at [42] of the Prosecutor's Statement of Facts (earlier set out at [36]), where the Prosecutor listed a range of alleged breaches of Condition E25, that list is not described as being exhaustive but is described as merely comprising examples of the alleged offending conduct. Similarly, in the second paragraph of Mr Macleod's 21 December 2018 report under 4.2 Assessment (Exhibit A, Tab 3, page 28), the report makes it clear (lines 453 and 454) that the list set out, commencing at line 455, is of numerous areas of non-compliance with the Blue Book, including (but not limited to) (with the list of alleged breaches following therefrom).
This makes it clear that there are further, unpleaded breaches of the Blue Book said to be capable of being alleged against each of Goodman and Burton. The failure to "close the list" of alleged breaches in this fashion also means that the charges here laid are latently duplicitous.
The appropriate consequence is now to adjourn each of the proceedings to enable the Prosecutor to consider how it might wish to proceed further in light of these conclusions.

Secretary, Department of Planning and Environment v Goodman Property Services

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (30 paragraphs)

Parties

Cases Cited (18)

Cited By (2)