Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd

The Prosecutor prosecutes the Company

1. On 16 December 2016, the Prosecutor commenced prosecutions of the Company in the Court. Three charges were laid against the Company, each of which alleged a breach by the Company of the conditions of the development consent given by the Prosecutor to the Company for its plant. Each charge was laid pursuant to s 125(1) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) based on an asserted breach of s 76A(1)(b) of that Act.

Summary of outcomes

1. It is convenient, for the purpose of making that which follows sequentially coherent, to set out, immediately, the various findings I have made. They are, in short form: 1. Charge 1 is defective as it is founded on what is said to be the operation of the plant to produce more than 150 tonnes of road‑making materials per day rather than the plant not having a design limit that would not permit it to produce more than 150 tonnes of road-making materials per day. The restriction arising from condition 1 (by incorporation of the Statement of Environmental Effects (the SEE) in the conditions) is one requiring a design limitation in order to avoid the development falling into the category of "designated development" and thus requiring a different assessment regime prior to approval. The Prosecutor's proposed amendment to this charge has no relevance to this defect. This defect is not curable by amendment and this charge is therefore struck out; 2. Charges 2 and 3 are each defective in the fashion dealt with by the High Court in Johnson v Miller (1937) 59 CLR 467 by not nominating a specific date upon which a relevant charge founding breach took place. This defect is curable in each instance and the Prosecutor should be afforded the opportunity to amend the relevant charge; 3. The Prosecutor's presently proposed amendments to Charges 2 and 3 are ineffectual to cure the above noted breach in each instance, and the Notice of Motion to amend is to be dismissed; 4. It is not appropriate to consider permitting the Prosecutor or the Company to have access to any material produced by Roads and Maritime Services (the RMS) until after the Prosecutor has sought and been granted leave to amend Charge 2 and/or 3 to render the relevant charge Johnson v Miller compliant. The orders, therefore, stand the subpoena over for further consideration; and 5. As the parties have each had a measure of success, costs have been reserved in each matter but self-executing orders made that any Notice of Motion seeking costs is to be filed, served and made returnable before me pursuant to the timetable in each set of orders. If no such motion is filed, there is to be no order for costs in each matter.

The statutory framework

1. It is appropriate to set out two of the provisions of the EP&A Act that provide the statutory vehicle for the laying of charges of the type that the Prosecutor says have been brought, validly, in each of these proceedings. The first relevant provision is s 76A(1)(b), the provision that creates the restriction on conduct which the Prosecutor says has been breached in each of the three instances being considered by me. This provision reads: 76A Development that needs consent (1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless: (a) …, and (b) the development is carried out in accordance with the consent and the instrument.
2. The second relevant provision is that which creates the offence which arises should an individual or entity act contrary to the requirements of s 76A(1)(b). This provision, s 125(1), is not one which creates a specific, identifiable offence relating to the first set out provision but is one which creates an ambulatory offence addressing all potential transgressions arising from the breaching of other provisions of the EP&A Act. This provision reads: 125 Offences against this Act and the regulations (1) Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Secretary, a council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act.
3. Although there are also separate provisions that provide for the penalties to be applied to an individual or entity if convicted of a charge laid pursuant to s 125(1), they do not arise for consideration at this point in any of these three proceedings.

The December 2016 charges

1. The three charges differed in their terms. The first charge (as laid) was in the following terms: The Prosecutor claims: 1. An order that the defendant, Tropic Asphalts Pty Ltd of registered office "Colas Australia Group Pty Ltd", Unit 2, 3-5 Gibbon Road Winston Hills, NSW, 2153, appear before a Judge of the Court to answer the charge that between 20 January 2015 and 18 March 2015, at Rock Flat in the said State, the defendant committed an offence against section 125(1) of the Environmental Planning and Assessment Act 1979 (the Act) in that it did the following thing that was forbidden to be done by 76A(1)(b) of the Act, in that on land (the land) to which an environmental planning instrument applied and which provided that specified development could not be carried out except with development consent, it carried out development which required development consent under that environmental planning instrument (the development) otherwise than in accordance with a development consent which had been obtained and was in force. PARTICULARS Development The Development was the operation of a temporary mobile asphalt batching plant on the land below. Land The land was lot 2 DP 825408, also known as 30 Springs Road, Rock Flat, NSW 2630. Development consent The development consent was that granted by Cooma-Monaro Shire Council to development application DA 10.2014.391.1 on 13 January 2015. Environmental Planning Instrument The environmental planning instrument was the Cooma-Monaro Local Environmental Plan 2013 made under the Act which zoned the land RU 1 Primary Production, and in that zone the development was permissible with consent as an innominate use, or in the alternative as a development for the purposes of "roads" which is a nominate use permissible with consent in the zone. Manner of contravention The development was carried out otherwise than in accordance with the development consent by being carried out contrary to Condition 1 of the development consent (which provided that the development was to be carried out substantially in accordance with the approved documents/plans listed in the Schedule within Condition 1), in that the development was not carried out substantially in accordance with the Statement of Environmental Effects prepared by KHA Development Managers received on 23 December 2014 (SEE), in that during the charge period, from 20 January 2015 and continuing to 18 March 2015, the defendant engaged in a course of conduct being the operation of the plant to a maximum daily production capacity of more than 150 tonnes. 2. An order that the Defendant be dealt with according to law for the commission of the above offence. 3. Such further orders pursuant to Part 8.3 of the Protection of the Environment Operations Act 1997 as the Court things fit. 4. Any other order that the Court thinks fit. 5. An order that the Defendant pay the Prosecutor's costs.
2. The second charge (as laid) was in the following terms: The Prosecutor claims: 1. An order that the defendant, Tropic Asphalts Pty Ltd of registered office "Colas Australia Group Pty Ltd", Unit 2, 3-5 Gibbon Road Winston Hills, NSW, 2153, appear before a Judge of the Court to answer the charge that between 20 January 2015 and 18 March 2015, at Rock Flat in the said State, the defendant committed an offence against section 125(1) of the Environmental Planning and Assessment Act 1979 (the Act) in that it did the following thing that was forbidden to be done by 76A(1)(b) of the Act, in that on land (the land) to which an environmental planning instrument applied and which provided that specified development could not be carried out except with development consent, it carried out development which required development consent under that environmental planning instrument (the development) otherwise than in accordance with a development consent which had been obtained and was in force. PARTICULARS Development The Development was the operation of a temporary mobile asphalt batching plant on the land below. Land The land was lot 2 DP 825408, also known as 30 Springs Road, Rock Flat, NSW 2630. Development consent The development consent was that granted by Cooma-Monaro Shire Council to development application DA 10.2014.391.1 on 13 January 2015. Environmental Planning Instrument The environmental planning instrument was the Cooma-Monaro Local Environmental Plan 2013 made under the Act which zoned the land RU 1 Primary Production, and in that zone the development was permissible with consent as an innominate use, or in the alternative as a development for the purposes of "roads" which is a nominate use permissible with consent in the zone. Manner of contravention The development was carried out otherwise than in accordance with the development consent by being carried out contrary to Condition 4 of the development consent which provided that the production at the plant must not exceed 150 tonnes per day at any time during operations, in that during the charge period, from 20 January 2015 and continuing to 18 March 2015, the defendant engaged in a course of conduct being the operation of the plant to produce more than 150 tonnes per day. 2. An order that the Defendant be dealt with according to law for the commission of the above offence. 3. Such further orders pursuant to Part 8.3 of the Protection of the Environment Operations Act 1997 as the Court things fit. 4. Any other order that the Court thinks fit. 5. An order that the Defendant pay the Prosecutor's costs.
3. Finally, the third charge (as laid) was in the following terms: The Prosecutor claims: 1. An order that the defendant, Tropic Asphalts Pty Ltd of registered office "Colas Australia Group Pty Ltd", Unit 2, 3-5 Gibbon Road Winston Hills, NSW, 2153, appear before a Judge of the Court to answer the charge that between 20 January 2015 and 18 March 2015, at Rock Flat in the said State, the defendant committed an offence against section 125(1) of the Environmental Planning and Assessment Act 1979 (the Act) in that it did the following thing that was forbidden to be done by 76A(1)(b) of the Act, in that on land (the land) to which an environmental planning instrument applied and which provided that specified development could not be carried out except with development consent, it carried out development which required development consent under that environmental planning instrument (the development) otherwise than in accordance with a development consent which had been obtained and was in force. PARTICULARS Development The Development was the operation of a temporary mobile asphalt batching plant on the land below. Land The land was lot 2 DP 825408, also known as 30 Springs Road, Rock Flat, NSW 2630. Development consent The development consent was that granted by Cooma-Monaro Shire Council to development application DA 10.2014.391.1 on 13 January 2015. Environmental Planning Instrument The environmental planning instrument was the Cooma-Monaro Local Environmental Plan 2013 made under the Act which zoned the land RU 1 Primary Production, and in that zone the development was permissible with consent as an innominate use, or in the alternative as a development for the purposes of "roads" which is a nominate use permissible with consent in the zone. Manner of contravention The development was carried out otherwise than in accordance with the development consent by being carried out contrary to Condition 6 of the development consent which provided that the number of trucks accessing and/or exiting the site is not to exceed twelve (12) per day, in that during the charge period, from 20 January 2015 and continuing to 18 March 2015, the defendant engaged in a course of conduct being the operation of the plant so that more than 12 trucks per day were accessing and exiting its site (being the land) at any one time. 2. An order that the Defendant be dealt with according to law for the commission of the above offence. 3. Such further orders pursuant to Part 8.3 of the Protection of the Environment Operations Act 1997 as the Court things fit. 4. Any other order that the Court thinks fit. 5. An order that the Defendant pay the Prosecutor's costs.

The Company's application

1. On 1 February 2017, the Company filed a Notice of Motion seeking, inter alia, to have each of the charges struck out or, in the alternative, permanently stayed. The terms of the orders sought by the Company are: 1. Order that the relief claimed in the summonses filed in proceedings numbered 16/381473, 16/381474 and 16/381475 be struck out and quashed and that proceedings numbered 16/381473, 16/381474 and 16/381475 be dismissed. 2. In the alternative, order that the proceedings numbered 16/381473, 16/381474 and 16/381475 be permanently stayed.

The Company's subpoena challenge

1. The Company's Notice of Motion also challenged the subpoena (nominated as being in all three of the proceedings) that had been issued to the RMS, the State Government highway construction and maintenance entity, to which the Company has supplied road construction materials. The materials are said by the Prosecutor to have been supplied from the plant at which the breaches are alleged to have occurred.
2. The Company's proposed orders (in the alternative) concerning this subpoena are set out in (3) and (4) of the terms of the Notice of Motion. The orders sought concerning the subpoena are in the following terms: 3. Order that the subpoena issued to Roads and Maritime Services in proceedings numbered 16/381473, 16/381474 and 16/381475 filed on 23 December 2016 (Subpoena) be set aside. 4. In the alternative, order that the Prosecutor have no access to any documents produced in answer to the Subpoena.

The Company's Statement of Grounds

1. On 9 February, 2017, the Company filed a Statement of Grounds for the Relief Sought on the Notice of Motion filed on 1 February 2017 (the Statement of Grounds). The Statement of Grounds was in the following terms: Order 1 1 In each charge: (a) the claim and the particulars do not disclose an offence, in that the "course of conduct" alleged in the particulars, does not constitute an offence against section 125(1) of the Environmental Planning and Assessment Act 1979 (NSW); (b) the claim and the particulars fail to identify an essential ingredient of the alleged offence, namely the material particular of the date of the alleged offence; and (c) the alleged offence disclosed in the claim and in the particulars is duplicitous and uncertain. Order 2 2. In the alternative to Order 1, each of the proceedings and charges should be stayed by reason of the matters referred to in 1 above and remained stayed due to the matters in each charge and the matters raised in 1 above. Order 3 3. As the defendant understands it, the RMS has complied with the subpoena and produced documents, so that there is no longer any utility in seeking an order to set aside the subpoena. Order 4 4. The defendant refers to the relief sought in Orders 1 and 2 and repeats the matters in grounds 1 and 2 above. The Court would not grant access to the documents produced on subpoena in respect of proceedings liable to be dismissed or stayed or in respect of charges liable to be struck out. 5. The subpoena was not issued for the purpose of obtaining documents for a hearing or trial but for the purpose of ascertaining whether the prosecution has a case at all and if so what that case is. Order 5 6. Such additional relief as may be sought, or the Court may consider it fit to grant, will depend upon the submissions and evidence relied upon by the prosecutor on the hearing of the motion.

The effluxion of time

1. The EP&A Act sets, in s 127(5), a two-year time limit within which charges for contravention of the Act must be laid. Extensions of this two-year period are not permissible.
2. As a consequence of the effluxion of time, if the Company is successful in its challenge to the charges as presently formulated or as amended - if leave to amend is granted (and identified defects - if any - are incapable of being cured within the relevant statutory framework), the Prosecutor would not be able to lay fresh charges against the Company.

The 24 March 2017 hearing

1. The Company's challenges were originally set down for a hearing with an estimate of half a day. The hearing commenced on 24 March 2017. It soon became apparent that the time estimate for the hearing was wildly optimistic and that not only was all available time on that day required but that a further date would be required to be fixed to enable the hearing to be finalised. At the end of the first day, the hearing was adjourned until 3 May 2017.

The Prosecutor's proposed amendments to the charges

Introduction

1. On 11 April 2017, the Prosecutor filed a Notice of Motion seeking to amend each of the three charges. The amendments proposed were to the particulars pleaded to each charge under the heading, in each instance, "Manner of Contravention".
2. The Prosecutor's amendments are in two distinct categories. The first appropriate to be discussed are the amendments that are common to all three charges (whilst of common intent, they are not all of identical terms, but the difference is immaterial for the purposes of this discussion). Second, there is a precise and singular amendment proposed to Charge 1.

The amended particular proposed to Charge 1

1. The proposed new particular to Charge 1 is reproduced below (marked to show the changes proposed to the original particular as charged in December 2016). The proposed new particular is in the following terms: Manner of contravention The development was carried out otherwise than in accordance with the development consent by being carried out contrary to Condition 1 of the development consent (which provided that the development was to be carried out substantially in accordance with the approved documents/plans listed in the Schedule within Condition 1), in that the development was not carried out substantially in accordance with the Statement of Environmental Effects prepared by KHA Development Managers received on 23 December 2014 (SEE), in that during the charge period, from 210 January 2015 and continuing to 18 March 2015 (on all days apart from on 24, 25, 26, 27 and 28 January 2015, and 1, 8, 15, and 22 February 2015 and 1, 8, and 15 March 2015), the defendant engaged in a course of conduct being the operation of the plant to a maximum daily production capacity of more than 150 tonnes (by producing more than 150 tonnes on each of those days).

The amended particular proposed to Charge 2

1. The proposed new particular to Charge 2 is reproduced below (marked to show the changes proposed to the original particular as charged in December 2016). The proposed new particular is in the following terms: Manner of contravention The development was carried out otherwise than in accordance with the development consent by being carried out contrary to Condition 4 of the development consent which provided that the production at the plant must not exceed 150 tonnes per day at any time during operations, in that during the charge period from 210 January 2015 and continuing to 18 March 2015 (on all days apart from on 24, 25, 26, 27 and 28 January 2015, and 1, 8, 15, and 22 February 2015 and 1, 8, and 15 March 2015), the defendant engaged in a course of conduct being the operation of the plant to produce more than 150 tonnes per day.

The amended particular proposed to Charge 3

1. The proposed new particular to Charge 3 is reproduced below (marked to show the changes proposed to the original particular as charged in December 2016). The proposed new particular is in the following terms: Manner of contravention The development was carried out otherwise than in accordance with the development consent by being carried out contrary to Condition 6 of the development consent which provided that the number of trucks accessing and/or exiting the site is not to exceed twelve (12) per day, in that during the charge period, from 21 January 2015 and continuing to 18 March 2015 (on all days apart from on 24, 25, 26, 27 and 28 January 2015, and 1, 8, 15, and 22 February 2015 and 1, 8, and 15 March 2015), the defendant engaged in a course of conduct being the operation of the plant so that more than 12 trucks per day were accessing and exiting its site (being the land) at any one time.

The effect of the proposed amendments

1. The proposed amendments are: 1. First, the amendments seek to align the charging periods in all three charges. For Charges 1 and 2, the charge periods are proposed to be amended from 20 to 21 January 2015. The effect of this amendment would be to make the charge period in each of the three charges the same; Then the amendments propose excision of the various nominated dates from within the charge periods. This would effect the removal of the period between Saturday 24 and Wednesday 28 January 2015 (inclusive) and all Sundays in February and March 2015 from each charge; and 1. Second, for Charge 1, alleging that the Company produced more than 150 tonnes on each of the days within the charge period (other than the days proposed to be removed by the immediately above noted proposed amendment).

The 3 May 2017 hearing

1. At the resumed hearing, there was an initial discussion as to how the day should unfold in light of the Prosecutor's proposed amendments to each charge.
2. By agreement, an amalgamated process was adopted, whereby Mr C Ireland, counsel for the Prosecutor, made combined submissions in support of the proposed amendments and in opposition to the Company's strikeout motion. Mr T Hale SC, counsel for the Defendant, followed in a similar combined fashion (but, obviously, to the opposite effect).
3. At the conclusion of the hearing on 3 May 2017, I reserved my decision on both Notices of Motion.

The relevant conditions in the Company's development consent

Introduction

1. I have, earlier, set out the process by which the Company obtained development consent from the Prosecutor for its plant. When the Prosecutor granted development consent, as is to be expected, it did so subject to conditions.
2. Three of those conditions are relevant to these proceedings, with each of the three conditions being, in the Prosecutor's view, breached by the Company in its operation of the plant as constructed.

Condition 1

1. The first of the relevant conditions is condition 1. The alleged breach of this condition is said by the Prosecutor to found Charge 1. Condition 1 is in the following terms: 1. The development being carried out substantially in accordance with the approved documents/plans listed in the Schedule below and development application except where amended by the conditions of this Consent as set out in the following conditions or by any subsequently approved Section 96 modification. Document/Plan Schedule Ref Description Prepared/Drawn By Received

•                   Statement of Environmental Effects  KHA Development Managers  23/12/2014
  

091204T-SK01 Proposed Plant Location Plan KHA Development Managers 23/12/2014

•                   Equipment Plans                     Benninghoven              23/12/2014
  

Reason: Requirement that the development is completed in accordance with Council's consent.

1. I am unable to see anything in the conditions of consent that would appear to amend any of the "documents/plans" listed. The apparent tension between the SEE and condition 4 arising from the position taken by the Prosecutor is discussed in my consideration of the specific detail of the pleadings in Particular 1 to the first of the charges laid against the Company.

Condition 4

1. The second relevant condition is condition 4. The alleged breach of this condition is said by the Prosecutor to found Charge 2. The terms of this condition, and the reason for its imposition as set out in the Prosecutor's Notice of Determination, are: 4. The plant production must not exceed 150 tonnes per day at any time during operations. Reason: Production above this threshold would result in the proposal being designated development and would require substantially more environmental impact assessment.

Condition 6

1. The final relevant condition is condition 6. The alleged breach of this condition is said by the Prosecutor to found Charge 3. This condition, and the reason given in the Prosecutor's Notice of Determination for its imposition, read: 6. The number of trucks accessing and/ or exiting the site is not to exceed twelve (12) per day at any one time. Reason: To ensure the traffic impacts from the development do not exceed SEPP 3 Guideline thresholds.

"Per day at any one time"

1. Condition 6 of the development consent reproduced immediately above sets the necessary compliance measure in terms of a numerical limit "per day at any one time". Consideration of what should be regarded as the meaning of these words as a limitation has not been raised for my consideration in these proceedings.

Introduction

1. The application for development consent was supported by the SEE prepared by KHA Development Managers received by the Prosecutor on 23 December 2014. The terms of the SEE were, amongst other matters addressed, clearly designed to describe a proposed development that would not trigger the plant falling within the defined concept of "designated development", a class of development for which an Environmental Impact Statement (EIS) would be required.

Charge 1

1. There are two elements of the SEE that require to be noted in the context of consideration of Charge 1. They relate to what the SEE sets out concerning the capacity of the plant for which the Company had sought approval.
2. It is convenient to commence with the first paragraph in the "Executive Summary" (at 1.2) setting out the description of the proposed development. This is in the following terms: The plant will take aggregate and sand, heat and dry them before blending and mixing with bitumen and fillers to produce asphalt. During the contract, the asphalt plant will produce no more than 18,000 tonnes of asphalt and may operate 24 hours/7 days to avoid traffic disruption.
3. Part 3 of the SEE is entitled "The Location". In discussing the location of the proposed plant, when dealing in 3.1.3 with whether or not the proposed development ought be classified as "designated development", after setting out the relevant provisions contained in Sch 3 of the Environmental Planning and Assessment Regulation 2000 (the EP&A Regulation), the SEE then makes the following relevant comment: The proposed development has an intended production capacity of less than 150 tonnes per day, and 18,000 tonnes per year.
4. Part 5 of the SEE is entitled "Compilation of Mitigation Measures". It comprises a table of mitigation measures, with their implementation to be at one or all of the design, construction and operations phases of the proposed development. Under the heading "Production", marked as being relevant at the operations phase, appears the following: Mitigation Measure Implementation Design Construction Operations Production The production capacity of the temporary asphalt plant will be limited to 150 tonnes per day of finished product. The plant will be operated generally between 7am and 5pm Monday to Friday. However, subject to RMS contract conditions the plant may need to operate outside of these hours to provide bitumen to the RMS during night work operations. ✓

1. It is also to be observed that the Equipment Plans by Benninghoven, specifically cited as the third referable document in condition 1 of the Notice of Determination, also formed part of the SEE, as they are incorporated as the second page of Appendix A to the SEE. This duality of incorporation of the plans by express inclusion, as well as by necessary implication, has no consequence for the matters requiring my consideration in these proceedings.

Charge 2

1. Part 2 of the SEE is entitled "The Proposal". In 2.1.2 it sets out the following short table: 2.1.2 PROPOSED PRODUCTION, IN TERMS OF TONNAGE CAPACITY TONNAGE Maximum Daily Production 150 Anticipated Typical Annual Production 18,000

1. The SEE also refers, in 4.6, under the heading "Traffic and Transport", to the maximum daily output being 150 tonnes per day. As this extract is more relevant to the question of condition 6 and the alleged truck movements breach said to found Charge 3, it is reproduced below for Charge 3.

Charge 3

1. The Executive Summary of the SEE, records, at 1.4.5, under the heading "Traffic and Transport", the following: Approval for the proposed temporary development would result in negligible impact on the level of service, capacity and the vehicular safety of Monaro Highway at Flat Rock, with only an [sic] 12 truck movements and 4 car movements likely generated.
2. Part 4 of the SEE deals with various potential impacts of the proposed development. This part is headed "Statement of Environmental Effects". At 4.6, "Traffic and Transport", the document says, relevantly: The proposed temporary development is compatible with existing quarry development. Maximum daily output (150 tonnes per day) is expected to generate up to 12 truck movements and 4 car movements. … … Approval for the proposed temporary development would result in negligible impact on the level of service, capacity and vehicle safety of Monaro Highway at Flat Rock.

Consideration of Charge 1

1. During the course of his oral submissions on 3 May 2017, Mr Hale said (Transcript 3 May 2017, page 9, lines 42 to 47): Charge 1, we spent the last hearing in a considerable period of time trying to work out what on earth charge 1 actually meant, and my learned friend spent some time, as your Honour will see in the transcript, contending that in fact it was an allegation about capacity rather than in fact production. I can take you ultimately to the passages. What he appears to be doing now is seeking to amend to say, no, it really is production not capacity at all.
2. Whilst said in a different context, this accurately reflects Charge 1 (whether as presently pleaded or proposed to be amended being irrelevant on this point).
3. In his oral submissions, Mr Ireland said, on this point (Transcript 3 May 2017, page 22, lines 9 to 14): We are not concerned in this case with the design of the plant, the mere potential of the plant, the word capacity in other cases as was discussed on the last occasion may be sufficient or is sufficient as a matter of ordinary language to embrace that kind of concept but the use of the word operations and operate in the summons in charge 1, can only mean producing and the obligation of the SEE also ties the maximum production capacity requirement back to producing and the words of the summons also refer to the rate, the maximum rate, as the maximum production capacity. So production was always important and as I said at para 24 of my original written submissions the gist of the offence is production at above the maximum rate not on any one particular day but for the period of operations, that was para 24 of my original written submissions.
4. The paragraph (24) element of Mr Ireland's written submissions referred to in the above extract was in the following terms: In relation to charge 1, due to the nature of the offence, it is not only proper to charge this particular offence by reference to the conduct of the plant's operation over a period of time, as a single criminal enterprise, there is no other way of properly charging the offence - certainly charging that on a particular day production exceeded 150 tonnes, as the Defendant appears to suggest, would be to charge a different offence. The gist of the offence is production at above the maximum rate, not on any one particular day, but for the period of operations. The charge period here is a definite period that it will be alleged is the period of production of this asphalt batching plant. (The extract then cited various evidentiary sources).
5. To give a proper contextual understanding of this paragraph in Mr Ireland's written submissions, it is also necessary to reproduce the relevant preceding material. The heading for this preceding material was "Charge 1 - Summons 16/381473". The relevant extract is in the following terms: 10. The manner of drafting charge 1 is entirely orthodox. This charge (charge 1) alleges that in a definite period of time (20/1/2015 - 18/3/2015) the Defendant committed an offence against s76A(1)(b) and s125 of carrying out development requiring consent otherwise than in accordance with the development consent which had been obtained and was in force. 11. The development is the operation of the asphalt batching plant at 30 Springs Road, Rock Flat during and continuing through the charge period. 12. The particular manner of carrying out development other than in accordance with the development consent which is alleged to constitute the offence is the operation of the asphalt batching plant in breach of condition 1 of development consent DA 10.2014.391.1 (the development consent). The notice of determination of that development consent is in Exhibit MA-1 at pages 51-54. 13. The specific contravention of condition 1 which is alleged is that the operation of the plant over the charge period, on a continuing basis, was not substantially in accordance with the Statement of Environmental Effects (SEE) as the plant was operated to a maximum daily production capacity of more than 150 tonnes. 14. This operational capacity limitation on the plant is a direct consequence of the trigger for designated development in Schedule 3 of the EP & A Regulation for this kind of development, being an intended production capacity of no more than 150 tonnes per day. The SEE imposes this requirement at section 2.1.2 (page 24, Exhibit MA-1), and section 3.1.3 (page 29, Exhibit MA-1). At section 2.1.2 the proposed production in terms of tonnage is limited to a "Capacity" being a maximum daily production of 150 tonnes (together with the yearly figure) and at section 3.1.3 the capacity limit on the plant's operation is described as follows: 3.1.3 Environmental planning and assessment regulation 2000 Schedule 3 of this planning instrument outlines those developments that are classified "designated development". The proposed temporary mobile asphalt plant does not meet the criteria for designated development under Part 5 "Bitumen Pre-mix and hot‑mix industries": (1) Bitumen premix or hot-mix industries (being industries in which crushed or ground rock is mixed with bituminous materials): (a) That have an intended production capacity of more than 150 tonnes per day or 30,000 tonnes per year, or (b) That are located: (i) Within 100 m of a natural water body or wetland, or (ii) Within 250 metres of a residential zone or a dwelling not associated with the development. The proposed development has an intended production capacity of less than 150 tonnes per day and 18,000 tonnes per year. It is proposed to be located within a previous operating quarry and will not be located within 100 metres of a natural water body or 250 metres of a dwelling not associated with the development. (emphasis in original) 15. Charge 1 is quite clear. It is not an allegation that on 1, 2 or a few days, intermittently, more than 150 tonnes of product was produced. The charge is that the plant was operated to above the maximum permitted daily capacity (i.e. above a rate of 150 tonnes/day), throughout the 57 day charge period on a continuing basis. What is alleged is that this ongoing and continuing course of conduct of operating the plant above the permitted capacity. It is quite a different charge to an allegation that on a day, or a handful of days within this period, more than 150 tonnes happened to be produced. 16. The SEE's (and consequently condition 1's) requirement that the plant not operate above 150 tonnes/day maximum "capacity" is one that applies to the mode of operations of the plant over its period of operation. The maximum allowed period of operation was from 13 January 2015 to 13 May 2015 (see condition 3, page 52 Exhibit MA-1). The actual period of operation was shorter and ended around 18 March 2015, the last day of the charge period: see page 66, Exhibit MA-1 file note documenting that roadwork would be finished by the end of March; the last daily quantity sheet is for 4 March 2015 (page 185, Exhibit MA-1); and the Flanagan Statement, showing truck pick-up and delivery from the plant up to 18 March 2015. 17. The production of more than a nominated tonnage of ashphalt on any one day or in any one consecutive 24 hour period could be, in relation to a charge such as charge 1, one piece of evidence going to proof that a plant was operating to above the permitted maximum capacity, but the gist of the charge would not be made out by proof of one or even a few sparse and separated days when the tonnage more than this amount was produced. It requires proof of a continuous operation that operated above the maximum "capacity". 18. "Capacity" in the sense used in the SEE and the charge bears its ordinary meaning in this context and means "…the most that … a factory or mine can produce …" (Macquarie Dictionary). It is a word that denotes the maximum output that the plant can or is intended to produce, not a one off production amount. 19. The Defendant's submissions do not mention this critical word in this charge, "capacity", and incorrectly construe the obligation as one that is made out or not by examining in isolation the production on any one day. The Prosecutor does not so contend. The production on one day over a 57 day period of operations may or may not be indicative of the production capacity, which is something quite different (referring to the sustained operation of the plant) to a daily figure. 20. It follows from the above that this charge is properly pleaded as a course of conduct or continuing offence over the period of plant's operations (when it operated continuously, apart from weekends, public holidays and lay days). There is ample evidence of this currently in the Prosecution Brief. This is referred to later in these submissions. 21. The meaning of maximum daily production "capacity" identified at 2.1.2 of the SEE is clearly an average rate, as is the annual figure referred to (the approved period of operation, being less than a calendar year). The meaning of this requirement also requires consideration of clause 3.1.3 of the SEE which notes by reference to Schedule 3 of the EP&A Regulation 2000 that: The proposed development has an intended production capacity of less than 150 tonnes per day. 22. Schedule 3 of the Regulation is concerned with a rate over a period of operations, as it is only this sustained production that carries with it the environmental impact sufficient to require an EIS. It would be a non-purposive construction of Schedule 3, at odds with its text (the reference to "intended production capacity" is important) and condition 1, to construe this as a "one-off" rather than a reference to the maximum rate achieved over the period of operation. The statutory definition looks at the overall capacity and intent, and a development will be designated development even if it is not every day that the 150 tonne level is not in fact exceeded, if it is in fact producing at a maximum capacity above that mark. 23. The charge 1 offence can (and indeed the offence alleged in charge 1 is an offence that must) be alleged over a period of the plant's operations and is an offence constituted by a course of conduct or the continuing operation of the plant over that period.
6. In considering this aspect of Charge 1, there is no need to determine whether any additional document needs to be considered (in a Ryde Municipal Council v The Royal Ryde Homes and Another (1970) 19 LGERA 321 sense) because the earlier relevant extracts from the SEE were necessarily incorporated by the express nomination of that document as being incorporated by condition 1 (subject to the exception - except where amended by the conditions of this Consent as set out in the following conditions).
7. Charge 1 is expressed in terms of the plant operating to produce more than 150 tonnes per day of road-making product. Although the Prosecutor's proposed amendment to this charge seeks to limit the days upon which the activity took place, the fundamental operational activities founding the charge remain. It is, therefore, necessary to return to the earlier set out matters contained in the SEE that are relevant on this point. Those that relate to the capacity (design limitation) of the plant were earlier set out at [39] and [40]. The provisions of the SEE that dealt with the intended operation (actual production) of the plant, although earlier referenced as relating to condition 4, also warrants noting here. These were set out at [42] and [43].
8. The first two SEE provisions clearly relate to the design of the plant and its potential to produce asphalt materials as being limited in a physical design capability sense. Correctly understood, these "capacity" references can only be interpreted as imposing a maximum throughput for the plant, as a functional limitation, of 150 tonnes of product, even if the plant worked "flat out" and continuously for any 24-hour period.
9. Such a limitation finds its genesis in the production design cap of 150 tonnes per day (Sch 3 Pt 5 of the EP&A Regulation) that is necessary not to be exceeded in order to avoid a development proposal being "designated development" and thus being required to be accompanied by an EIS (such an EIS being required by s 78A(8)(a) of the EP&A Act for "designated development").
10. Any charge properly founded on those elements of the SEE being incorporated by express reference from condition 1 (and not being otherwise modified by any of the other conditions of consent) would have been available (assuming the design capacity foundation for such a charge could be demonstrated) for any day (or all days throughout the period) during which the plant was located at the approved site and could have produced more than 150 tonnes of output whether it was operating or not.
11. Such a charge would have been on based on "being" (this being the nature of the obligation imposed by condition 1) rather than "doing".
12. On the other hand, on the assumption that such a design capacity breach actually occurred because the plant was capable of operating at a production rate of greater than 150 tonnes per day and was, in fact, so operating at a rate in excess of that limit does not constitute a breach of condition 1 by reference to the elements of the SEE extracted at [42] and [43]. This is because, by virtue of the exclusionary provision in condition 1 making anything in the SEE subordinate to any express condition of consent, condition 4 subsumes and sets aside these provisions.
13. Condition 4 imposes a "doing" rather than a "being" limitation.
14. It is thus not open to lay a charge of breach of condition 1 founded on an allegation of actual operation of the plant at a production level exceeding 150 tonnes per day at any time during operations, as such a charge can only find a foundation from the terms of condition 4 and not from condition 1.

Conclusion on Charge 1

1. The fact that Charge 1 is framed in a fashion relating to the actual operation of the plant rather than breach of the imposed design limitation means that this charge not only lacks a foundation in condition 1 but also is unable to be amended to reflect the nature of a charge properly founded on condition 1 derived from the design "capacity" of the plant rather than its operational nature.
2. Any proposed amendment to Charge 1 which sought to substitute a charge revised in such a fashion would not, on any proper construction, be amending the charge but would be substituting an entirely new and different charge (however such an amending reformulation might be drafted).
3. The consequence, therefore, is that Charge 1 must be struck out.

The Equipment Plans by Benninghoven

1. It is also to be observed that, in addition to the SEE, condition 1 expressly approves the Equipment Plans by Benninghoven. The question of whether these plans depict a plant, if built in accordance with those plans, which would be one "having a capacity of greater than 150 tonnes per day", has not required consideration in this phase of the proceedings. Any potential "being" tension concerning plant capacity arising from the incorporation of the SEE and the Equipment Plans is irrelevant to my consideration of Charge 1.

Introduction

1. The Company submitted that all charges as drafted should be struck out, dismissed, or stayed on the grounds that the claims in the charges and the particulars: 1. Do not disclose an offence; 2. Does not identify an essential ingredient of the alleged offence, namely, the material date of the alleged offence; and 3. The alleged offence is duplicitous and uncertain.
2. Given my earlier conclusion concerning Charge 1, I now turn to consider Charges 2 and 3 in the context of the above complaints. Because both the conditions of consent said to be breached and giving rise to each of these charges have relevant common features, it is convenient to consider dealing with them together.

Taking the charges together?

1. The first aspect of the Prosecutor's submissions was that the Company's approach of using the charge founded on the alleged breach of condition 4 of the development consent as illustrative of a common defect in the charges was inappropriate. The outline of submissions for the Prosecutor said, in this regard: It is very important that each charge be considered separately, as the determination of whether a criminal pleading is duplicitous or uncertain requires separate condition of the individual charge which is impugned, and the Defendant's approach (seen in the Defendant's submissions) of merging discussion of all three charges is unorthodox and wrong, and incapable of allowing a proper forensic analysis of the issues raised.
2. It seems to me, in this context, that this initial submission should be rejected. The reason for that is that the words "course of conduct" pleaded as a substantive element of the particulars of both charges give rise to what is said by the Company to be an inherent defect in each of the charges.
3. This point is separate from any other defects that might be said to exist in either of the charges and forms a common basis of complaint advanced for the Company. As a consequence, I am satisfied that it is, on this point, appropriate to consider these two charges globally.

Timing for consideration

1. Mr Ireland submitted that dealing with the alleged defects in the remaining charges would be premature. He said (Transcript 3 May 2017, page 23, lines 4 to 9). Whether that degree of continuity is made out, whether the Court at trial finds that there is a single criminal enterprise, whether the Court at trial finds that there was such a course of conduct over that charge period is uniquely in my submission a matter for trial and not a matter for a summary dismissal or strike out application.
2. I reject this proposition. The proper time to explore defects of the nature raised by the Company via its Notice of Motion is at the time of determination of the motion. The Company's complaints have been argued fully and are appropriate to be determined at this stage of the proceedings.

The basis for the Company's complaint

1. The essence of the Company's submission, that each of the charges is defective, was set out in the Outline of Written Submissions for the Company - using Charge 2, concerning the allegation that the company breached condition 4 of its development consent - as the vehicle to explain the challenge made to each of the charges. The submissions, in this regard, were the following terms: 5. The basis of the Defendant's objection in respect to each of the charges are the same in each case, and for present purposes it is convenient to concentrate upon proceedings 16/381474 as illustrative of the defect contained within all three charges. 6. Condition 4 provided: The plant production must not exceed 150 tonnes per day at any time during operations. 7. An allegation that the Defendant breached condition 4 must particularise a nominated day that the Defendant produced more than 150 tonnes a day. The charge must focus on what occurred vis-à-vis the conditions of consent on a particular day in relation to proceedings 16/381474 condition 4, and whether the charge is established is dependent upon the evidence of production within the 24 hour period of that particular day. 8. In proceedings 16/381474, the charge, when read with the particulars, does not allege a breach of condition 4 on a particular day. Rather it alleges that the "manner of contravention" during the charge period was that: (T)he defendant engaged in a course of conduct being the operation of the plant to produce more than 150 tonnes per day. 9. The defect in this charge is that it does not disclose any offence known to law. Engaging in a course of conduct is not of itself a breach of s125 of the EPA Act, although that course of conduct might lead to a breach of condition 4 and therefore lead to a breach of s125. 10. In summary, the Defendant submits that the proceedings and the charges as drafted should be struck out, dismissed or stayed on the grounds that the claim in the charge and the particulars: (a) do not disclose the offence; (b) does not identify an essential ingredient of the alleged offence namely the material date of the alleged offence; (c) the alleged offence is duplicitous and uncertain.
2. This expressly raises the question of whether the "course of conduct" of the nature pleaded in each instance can found a charge of breaching s 76A(1)(b) of the EP&A Act.

The Prosecutor's submissions on Charges 2 and 3

1. In his oral submissions, Mr Ireland, counsel for the Prosecutor said on this point (Transcript 3 May 2017, page 22, line 29 to page 23, line 4): In relation to the reference to continuity or continuing and the use of that words in charge 1, your Honour posed a question to my learned friend Mr Hale, transcript pp 11 and 12 whether the reference to that concept of continuity was implied by the description of charge 1 and by the reference to a course of conduct and as a result whether or not there was an internal inconsistency in charge 1 and I now answer that quite proper inquiry put by the Court to my learned friend. I say there are two answers first a course of conduct may be carried out in two segments or more. Hakim is a case, the Hakim case dealing with excavation is a case where there were two tranches, two excavations that were charged together in the one charge and all that is done in charge 1 is refer to a course of conduct that continues between date X and date Y, what is now said in the amendment there are some dates along the way on which it is not alleged the course of conduct continued being the operation of the plant to produce more than above the particular capacity. I say that is merely a change to the pleading of the timing of the offence period. The use of the word continue, in charge 1 was linked to the reference to the two dates 20 January and 18 March and making it clear that it wasn't for the defendant to have to pick a day in that charge period but what was being alleged was a single criminal enterprise, a course of conduct between those bookend dates. A number of dates are now excised if the amendment is allowed, that changes the time over which the offence is alleged to have been committed and that of course is a change to an inessential particular applying Kari & Ghossayn para 10 a decision of Preston J.

Duplicity

1. In Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125; [2013] NSWCCA 204, Leeming JA (R A Hulme and Button JJ concurring) quoted Archbold: Criminal Pleading, Evidence and Practice, 2013, Sweet & Maxwell at [1-216], where the learned authors wrote: The general principle in respect of what has come to be known as the rule against duplicity is that the indictment must not be double; that is to say, no one count of the indictment should charge the defendant with having committed two or more separate offences.
2. Both Charges 2 and 3 are phrased in a manner which refers to breaches of daily limits - in Charge 2 these are with respect to production and in Charge 3 with respect to truck movements - whilst the charges themselves lack specific dates upon which the breaches are said to occur. Instead, the original charges reference a period which spans months.
3. However, as is made clear by the Prosecutor's proposed amendments to Charges 2 and 3, it is clear that the "course of conduct" alleged is not continuous - it may have been predictable but it was intermittent.
4. In Truegain, Leeming JA also observed, at [47] and [48]: … Even so, as Dixon J observed in Johnson at 483, questions could arise as to whether the facts said to constitute the offence were "repetitions, not continuations" of the offence. It has long been the case that where acts formed part of the same transaction or criminal enterprise, they could be charged in a single count.
5. This confirms that, properly founded, a charge based on a "course of conduct" can be sustained if it is continuous.
6. However, the position here is that the conduct complained of in Charges 2 and 3 is not a single continuous "course of conduct". As Kirby J said, in Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26, at [107]: If, for example, criminal acts occurred within a few minutes of time and in close physical proximity, could they be regarded as components of the one activity, so as to be susceptible to treatment as a single count? If the events were seen as part of the one transaction or criminal enterprise this approach has been held to be permissible in England. If a precise understanding of the charge laid, although evidenced by multiple acts, is that it represents a single crime, then a single count is permissible.
7. His Honour went on to observe: Particular problems arose for the application of the duplicity rule in the case of offences which, of their definition, were constituted by continuous activity.
8. It is unnecessary to consider the "particular problems" to which his Honour referred, as I am satisfied that that which is sought to be engaged by the Prosecutor to sustain Charges 2 and 3 cannot be regarded as "continuous activity."

The need for specificity

1. Using Charge 2 as an example, and with reference to condition 4, the Prosecutor's original charge fails to state the specific dates on which it is alleged a breach of the condition occurred. With respect to the nature of the breach, Mr Hale provided a useful analogy (Transcript 3 May 2017, page 39, lines 10 to 33): HALE: … Going back to the second charge which concerns the breach of condition 4 we've set out condition 4 in our original submissions but your Honour knows it. The plant production must not exceed 150 tonnes per day at any time during operations. Condition 4 which is alleged to have been breached is, as I previously submitted, fixed directly in relation to a particular day in a particular 24 hour period. What the charge is in terms of alleging breach of condition is that on a particular day there was production of in excess of 150 tonnes. That means that the evidence that is to be adduced in support of the charge will be directed purely to what happened within that 24 hour period, let us say it was a Tuesday. HIS HONOUR: And a 24 hour calendar period defined by midnight to midnight? HALE: Correct and so this is the problem in all of the submissions, they glide past what the absolutely critical things is, the very nature of the charge must be directed to a particular day and that's why it's an essential ingredient and what that means, as we made that point in our reply submission in para 8 and para 9 and I needn't ask your Honour to go to that, but the point about it is if the allegation is that we breached on let us say a Tuesday it means, as I've said, what happened within that calendar 24 hour period is all that is relevant. The fact of what happens on the Wednesday is entirely irrelevant. Nothing that happens on the Wednesday can in any way go to establishing whether or not there has been a breach in the 24 hour period of the Tuesday.

Consideration

1. Charges 2 and 3 find their foundation in conditions of development consent that imposed operational limits on aspects of the Company's activities in utilising the production plant approved for the site. It is in this context that it is appropriate to consider whether, as presently framed (or proposed to be amended), these two charges are defective, even though pleading a course of conduct is an available potential foundation, in a theoretical sense, as earlier explained.
2. I consider that they are. The defect is a common one and arises from the application, by analogy, of the approach taken by the High Court in Johnson v Miller. This approach requires, when there is a list of potential triggers to found a charge, the defendant in such an eventuality is entitled to know which specific event triggered that charge. In Johnson v Miller, that which was involved were a number of persons departing from the licensed premises at different times, spanning a period when the offending conduct might be inferred. Whilst, here, the charge, in each instance, nominates a series of days (whether as originally charged or limited as proposed to be amended being irrelevant) when the offending conduct is alleged to have occurred.
3. As Dixon J observed in Johnson v Miller 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. The court hearing a complaint or information for an offence must have before it a means of identifying with the matter or transaction alleged in the document the matter or transaction appearing in evidence.
4. It therefore follows that, as there is no "continuous conduct" for either charge, each of these charges is defective by virtue of failing to nominate, precisely, an identified day upon which the relevant condition was said to have been breached.

Are Charges 2 and 3 capable of rectification?

1. For both Charge 2 and Charge 3, the critical failing resulting in the defect of the original charges is the failure to address the "per day" temporal element in each of condition 4 and condition 6, which results in the omission of an essential ingredient in each charge. The alleged breaches, which relate to 24‑hour timeframes, were not charged with reference to the specific dates on which the breaches were said to occur. However, the question then required of me to answer is whether such defect in each charge is capable of amendment.
2. This Court has power to make amendments in its criminal jurisdiction, under s 21(1) of the Criminal Procedure Act 1986 (the Criminal Procedure Act) - a provision which reads: If of the opinion that an indictment is defective but, having regard to the merits of the case, can be amended without injustice, the court may make such order for the amendment of the indictment as it thinks necessary to meet the circumstances of the case.
3. In Kari & Ghossayn Pty Limited v Sutherland Shire Council [2006] NSWLEC 532, Preston CJ discussed the temporal aspects of charges using precisely the statutory pathway here engaged. His Honour wrote, at [9] and [10]: 9. A defective indictment is not necessarily bad. Section 16(1) of the Criminal Procedure Act 1986 provides that an indictment is not bad, insufficient, void, erroneous or defective on a number of stated grounds. Relevantly, one of those grounds is in s 16(1)(g) which states: (g) Except where time is an essential ingredient, for omitting to state the time at which the offence was committed, for stating the time wrongly or for stating the time imperfectly. 10. In this case, the Court Attendance Notices may have wrongly or imperfectly stated the time at which the offences charged were committed. The evidence at the trial established that the trees and the bushland and rock outcrop in the western corner were removed before the particularised date of 9 August 2004. However, such a defect did not cause the Court Attendance Notices to be bad, insufficient, void, erroneous or defective: see s 16(1)(g) of the Criminal Procedure Act 1986. Time is not an essential ingredient of offences against s 125(1) and s 76A(1) of the EPA Act [my emphasis].
4. As was observed by the Court of Criminal Appeal in R v Boujaoude (2008) 72 NSWLR 85; [2008] NSWCCA 35, at [48], in the context of a discussion of the fundamental proposition concerning the need for specificity derived from Johnson v Miller, such a defect is potentially capable of being cured. Giles JA said (Hislop and Price JJ concurring): If particulars are given in the indictment…. they remain particulars. They can be amended (if necessary with leave of the court under s 20 of the CP Act), or supplemented either voluntarily at the accused's request or by order of the court on the accused's application.
5. Deletion of the reliance on a "course of conduct" and an amendment to nominate a specific date upon which either condition 4 or condition 6 was said to be breached could provide a charge that that had had its defects cured. Amending either or both charges in this fashion would be a permissible amendment process for the Prosecutor pursuant to s 20 of the Criminal Procedure Act. It is, perhaps, unnecessary to observe that, if such a course of amendment to both charges were to be pursued by the Prosecutor, it would be unnecessary for the Prosecutor to nominate the same date in each charge so amended.
6. Thus, as a matter of discretion, I am of the opinion that, having regard to the merits of the case, the charges are potentially curable without the Company suffering prejudice - this Court may make such order for amendment: Kari & Ghossayn at [11].
7. The question of whether the discretion should be exercised would need to await consideration of how the Prosecutor might reframe the charges and any further objection raised by the Company to such reframed charges as might arise for consideration.

Conclusion on Charges 2 and 3

1. It therefore follows that I am satisfied that each of Charges 2 and 3 suffers from the Johnson v Miller defect of failing to specify a nominated date upon which the Company is alleged to have breached condition 4 or condition 6 of the development consent granted by the Prosecutor on 13 January 2015.
2. Unlike Charge 1, I am, however, satisfied that the defects in Charges 2 and 3 are potentially amenable to amendment to cure these defects. The fashion by which the Prosecutor might achieve this is a matter remaining for consideration by the Prosecutor and its legal advisers.
3. As a consequence, it is appropriate to allow a modest period of time during which consideration of further amendments to Charges 2 and/or 3 might be formulated. For this reason, although defective, it is not appropriate to strike out these two charges.

Consideration of the Prosecutor's common amendments

1. The common amendments seek to insert a list of dates into Particular 1 of each charge. As a consequence of my determination that Charge 1 is to be struck out, the proposed amendments only require consideration in the context of Charges 2 and 3.
2. The dates proposed to be inserted are dates upon which the Prosecutor proposes no longer to assert that the relevant breach was occurring. However, the effect of permitting these amendments would be, simply, to leave standing the concept of a "course of conduct", but merely one of a more confined nature on what would become identified days - rather than a "course of conduct" persisting throughout the originally set out charge period.
3. Such an approach, whilst superficially commendable, does not address the fundamental deficiency arising from what would then become a more confined and broken list of instances when the conduct was alleged to have occurred without specifying a particular date, in a Johnson v Miller sense, when the conduct was alleged to have occurred.
4. For this reason, the Prosecutor's common amendments do not cure the defect earlier discussed concerning the concept of a "course of conduct". As a consequence, these amendments have no utility and are to be rejected.

The subpoenas to the RMS

1. The Company sought, in its Notice of Motion, the following orders (in the alternative) with respect to the subpoena issued to the RMS. 3. Order that the subpoena issued to Roads and Maritime Services in proceedings numbered 16/381473, 16/381474 and 16/381475 filed on 23 December 2016 (Subpoena) be set aside. 4. In the alternative, order that the Prosecutor have no access to any documents produced in answer to the Subpoena.
2. That which the subpoena, in each proceedings, seeks to have produced is cast in the following terms: 1. A copy or original of the contract entered into between the Defendant and Roads and Maritime Services (RMS) in relation to the supply of asphalt by the Defendant for work order 061 in relation to the Snowy Mountains Highway and Kosciusko Road Project (the Project), from 20 January 2015 to 18 March 2015. 2. A copy or original of each completed daily 'quantity agreement sheet' for each active site on the Project which received asphalt from the Defendant in the period 20 January 2015 to 18 March 2015 (being the 'quantity agreement sheets' identified at par 12 in the affidavit of Adrian Leslie Walsh, Works Manager for the Project sworn 31 October 2016. 3. A copy of the original or copies of all delivery dockets attached to each 'quantity agreement sheet' sought in paragraph 2 of this subpoena above. 4. Without limiting any of the paragraphs of this subpoena above, the 'quantity agreement sheets' on which the quantities contained in Mr Walsh's email attached as Annexure 4 to his affidavit sworn 31 October 2016, were based.
3. The Company says that the relief which it seeks concerning these subpoenas is appropriate because the subpoenas do not, properly understood, seek evidence to assist in supporting the charge which has been laid against the Company, but are, in effect, appropriate to be regarded as a "fishing expedition" by the Prosecutor, one which seeks to establish whether the Prosecutor has, in each instance, any proper foundation for a charge at all.
4. It is to be accepted that a document will have a legitimate forensic purpose if it is likely that the document or documents will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the document will materially assist on such an issue (ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307; Azar Building and Construction Services Pty Ltd v Transport Infrastructure Development Corporation [2010] NSWLEC 110).
5. In Portal Software v Bodsworth [2005] NSWSC 1115, Brereton J observed, at (at [25]): It is sufficient that [the documents sought to be produced] could 'possibly throw light' on the issues in the substantive proceedings, or that it appears to be 'on the cards' that they will do so. What are the issues in the proceedings will appear from the pleadings (where there are pleadings), the affidavits, and the legal principles which govern the claims for relief in the substantive proceedings.
6. It is in this context that it is to be observed that a prosecutor, in circumstances such as here arise, must have sufficient evidence, without access to any subpoenaed material, to found the charges in the first instance.
7. As Moffitt P observed in National Employers' Mutual General Insurance Association Ltd v Waind and Hill [1978] 1 NSWLR 372 at 384: The only legitimate purpose of requiring the production, and permitting the inspection, of a stranger's documents can be to add, in the end, to the relevant evidence in the case [emphasis added].
8. For Charges 2 and 3, the possibility arises that the subpoena may be capable of remaining on foot for each of those proceedings. Given my conclusion, with respect to each of Charges 2 and 3 that they do not presently validly set out a charge but that each of them is amenable to amendment, consistent with Johnson v Miller, to specify a particular date upon which the Prosecutor says that the relevant condition was breached, an amended subpoena reflecting the nominated date is one which could be valid.
9. However, the presently broadly cast scope of the subpoena and the need for the Prosecutor to consider whether or not it wishes to assay a further amendment process for either or both of the charges, to effect compliance with Johnson v Miller, it is not appropriate to permit the present subpoenas to be used by the Prosecutor as a "fishing expedition" in order to search for and enable selection of a specific date for the purposes of some further application to amend the particulars supporting either charge.
10. The consequence of that conclusion, in each of the Charge 2 and Charge 3 matters, is that the subpoena should be stood over so that any application to amend it to be more specific should be dealt with at the same time as any application to amend the particulars of the relevant charge. Dealing with the subpoena in this fashion ensures that, if a date is specified by amendment to the charge, the subpoena can be rendered appropriately precise for the purposes of that confined date rather than in its presently unacceptably broad casting of the net.

Costs

1. As there has been a mixed outcome for the parties concerning the three charges and, as they were dealt with across the two hearing days in a generally integrated fashion, I have not attempted to reach any conclusion as to how costs might fall. I have, therefore, provided for either party to make such costs order applications as they might consider fit and to do so with the same timing set for dealing with any further interlocutory motions that might be filed by the Prosecutor. The orders also provide that, in the event that no costs applications are made, the default position for the proceedings to the date of this decision is that, in each matter, there is to be no order for costs.

Conclusion

1. For the reasons set out in the body of the judgment, I have concluded: 1. Charge 1 suffers from the fundamental defect in that it is founded on an assertion concerning the actual operation of the plant at a production level greater than 150 tonnes per day in a fashion said to be derived from condition 1 of the development consent. The limitation, relevantly, imposed by condition 1 relates to the functional capacity of the plant rather than any actual production achieved throughout any 24-hour period. This defect is one, for the reasons explained, unable to be cured by amendment; 2. Charges 2 and 3 are defective in that they plead a range of dates when a breach of the relevant operational condition (either condition 4 or condition 6) was said to have occurred. This lack of specificity offends against what the High Court held in Johnson v Miller. In each instance, however, the charge is capable of amendment to specify a single date upon which a breach of the relevant condition is said to have occurred. The Prosecutor should be granted an opportunity to consider such an amendment confining the charge. Such a charge, so amended, would no longer offend the Johnson v Miller principle; 3. The Prosecutor's amendments should not be permitted, as they would not cure the defects in either Charge 2 or Charge 3; and 4. Finally, with respect to the subpoenas to the RMS, the subpoena in the Charge 1 proceedings is rendered irrelevant as a consequence of my conclusion that that charge should be struck out. However, with respect to the subpoena to the RMS in the Charge 2 and Charge 3 proceedings, it is not appropriate to permit the Prosecutor access to any material that might be produced pursuant to those subpoenas until after the Prosecutor has amended (should the Prosecutor elect to proceed to do so) each charge to cure the Johnson v Miller defect. When such amendment is made (assuming leave to do so is sought and granted), the question of whether access to subpoenaed material concerning the nominated date in either charge is appropriate may then be considered.

The fate of the two motions

1. In order to finalise these interlocutory steps, the appropriate orders are: 1. Charge 1 is struck out and dismissed. The making of this order removes the necessity to make any further orders in this matter, save as to providing for the potential making of a costs application; and 2. With respect to Charges 2 and 3, it is appropriate to dismiss the Prosecutor's motion seeking leave to amend each charge. It is, however, necessary to incorporate, for each charge, a series of self‑executing orders dealing with timetabling matters for amendments to a charge; amendments to a subpoena; and applications for costs. In each of these matters, the Prosecutor's motion for leave to amend is dismissed, whilst the Company's motion, except to the extent provided by the timetabling framework set out, is also dismissed.

Orders

1. The proposed orders of the Court in Matter No 381473 of 2016 are: 1. The charge is struck out; 2. The proceedings are dismissed; 3. Any Notice of Motion for costs and any supporting affidavit are to be filed and served by 12 September 2017; 4. Any Notice of Motion for costs pursuant to (3) is to be made returnable before Moore J at 9AM on 21 September 2017; and 5. If no Notice of Motion for costs is filed and served by 12 September 2017, there is to be no order for costs in these proceedings. However, these orders have not yet been made so as to permit the Prosecutor to consider whether it wishes to state a case to the Court of Criminal Appeal pursuant to s 5A of the Criminal Appeal Act 1912. These proceedings are stood over to 9.00 am on 21 September 2017 before me.
2. The orders of the Court in Matter No 381474 of 2016 are: 1. The Notice of Motion by the Prosecutor seeking leave to amend Particular 1 to the charge is dismissed; 2. Any further Notice of Motion by the Prosecutor to amend the particulars of the charge and any supporting affidavit are to be filed and served by 12 September 2017; 3. Any Notice of Motion to amend the terms of the subpoena to Roads and Maritime Services and any supporting affidavit are to be filed and served by 12 September 2017; 4. To the extent that documents may have been produced by Roads and Maritime Services pursuant to the subpoena in these proceedings, there is to be no access by either party to those documents until further order; 5. The proceedings and the return of the subpoena to Roads and Maritime Services are stood over before Moore J at 9AM on 21 September 2017 for further directions; 6. Except to the extent that the above orders reflect that which was sought in (1) to (4) of the Defendant's Notice of Motion and as provided for in the following order, that Notice of Motion is dismissed; 7. Costs of the dismissed Notices of Motion are reserved; 8. Any Notice of Motion for costs and any supporting affidavit are to be filed and served by 12 September 2017; 9. Any Notice of Motion for costs pursuant to (8) is to be made returnable before Moore J at 9AM on 21 September 2017; 10. If no Notice of Motion for costs is filed and served by 12 September 2017, there is to be no order for costs in the proceedings concerning the Notices of Motion subject of these orders; and 11. Liberty to relist before Moore J earlier than 21 September 2017 on not less than three (3) working days' notice.
3. The orders of the Court in Matter No 381475 of 2016 are: 1. The Notice of Motion by the Prosecutor seeking leave to amend Particular 1 to the charge is dismissed; 2. Any further Notice of Motion by the Prosecutor to amend the particulars of the charge and any supporting affidavit are to be filed and served by 12 September 2017; 3. Any Notice of Motion to amend the terms of the subpoena to Roads and Maritime Services and any supporting affidavit are to be filed and served by 12 September 2017; 4. To the extent that documents may have been produced by Roads and Maritime Services pursuant to the subpoena in these proceedings, there is to be no access by either party to those documents until further order; 5. The proceedings and the return of the subpoena to Roads and Maritime Services are stood over before Moore J at 9AM on 21 September 2017 for further directions; 6. Except to the extent that the above orders reflect that which was sought in (1) to (4) of the Defendant's Notice of Motion and as provided for in the following order, that Notice of Motion is dismissed; 7. Costs of the dismissed Notices of Motion are reserved; 8. Any Notice of Motion for costs and any supporting affidavit are to be filed and served by 12 September 2017; 9. Any Notice of Motion for costs pursuant to (8) is to be made returnable before Moore J at 9AM on 21 September 2017; 10. If no Notice of Motion for costs is filed and served by 12 September 2017, there is to be no order for costs in the proceedings concerning the Notices of Motion subject of these orders; and 11. Liberty to relist before Moore J earlier than 21 September 2017 on not less than three working days' notice.

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