Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd

1. Clause 3.1.3 of the SEE deals with the reason why the development was not a "designated development" for the purpose of Part 5 of Schedule 3 of the Environmental Planning and Assessment Regulation 2000 (NSW). It was in the following terms: "3.1.3 Environmental Planning & 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 metres of a natural water body or wetland, or (ii) Within 250 metres of a residential zone or 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."
2. Part 5 of the SEE was described as a "Compilation of Mitigation Measures" in respect of the plant. One of the "operational" mitigation measures was described in the following terms: Mitigation Measure 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. [Tick]

1. The SEE also dealt with certain matters relevant to the Third Charge. In cl 1.4.5, under the heading "Traffic and Transport", the following remarks were made: "1.4.5 Traffic and Transport Approval for the proposed temporary development would result in negligible impact on the level of service, capacity and vehicular safety of Monaro Highway at Rock Flat, with only an [sic] 12 truck movements and 4 car movements likely generated." Clause 4.6 elaborated on cl 1.4.5 as follows: "4.6 Traffic and Transport 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."
2. As can be seen from the particulars of contravention for the First Charge, it is alleged that the development was not carried out "in accordance with" the SEE since the respondent operated the plant to a "maximum daily production capacity of more than 150 tonnes" during the period of time specified.

The primary judgment

1. The primary judge stated that the First Charge was "expressed in terms of the plant operating to produce more than 150 tonnes per day of road-making product". He referred to the provisions in cl 3.1.3 and Part 5 of the SEE to which I have referred at [17]-[18] above and stated that they related to the "capacity" of the plant and that those provisions in cl 2.1.2 and cl 4.6 dealt with its "intended operation".
2. The primary judge stated that the first two of these provisions "clearly relate to the design of the plant and its potential to produce asphalt materials as being limited in a physical capability sense". He stated that "any charge properly founded on those elements of the SEE" would have been available for any day "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".
3. The primary judge also stated that, assuming that "such a design capacity breach actually occurred", even though the plant was "capable of operating at a production rate of greater than 150 tonnes per day and was, in fact, so operating", this did not constitute a breach of condition 1 "by virtue of the exclusionary provision in condition 1 making anything in the SEE subordinate to any express condition of consent", condition 4 subsumed and set aside" the relevant provisions in the SEE.
4. For these reasons, the primary judge struck out the First Charge.
5. So far as the Second and Third Charges were concerned, the primary judge stated that the proposed amendments to those charges made it clear that the "course of conduct" alleged was not "continuous". He said that it may have been "predictable" but that it was also "intermittent". The primary judge stated, referring to Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125; [2013] NSWCCA 204 at [47]-[48] (Truegain), that a properly founded charge based on a "course of conduct" could be sustained if it was "continuous". However, he stated that, in the present case, the conduct complained of could not be regarded as a "continuous course of conduct".
6. In that context, the primary judge concluded that the charge was defective, "by analogy, of the approach taken in the High Court" in Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77. He stated that this approach required that, "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". He stated that "as there is no 'continuous conduct' for either charge, each of the [Second and Third Charges] is defective by virtue of failing to nominate, precisely, an identified day upon which the relevant condition was said to have been breached".
7. The primary judge stated that, as a matter of discretion, the defects in the Second and Third Charges were "potentially amenable to amendment to cure these defects" and that it was not appropriate to strike them out. However, he stated that the proposed amendment by the prosecutor did not overcome the defects and that the effect was to simply "leave standing the concept of a 'course of conduct', but merely one of a more confined nature". He stated that this did not address the "fundamental deficiency" which arose 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".

The submitted questions

1. It is convenient to deal with Question 1 relating to the First Charge separately and then deal with Questions 2 and 3 relating to the Second and Third Charges together.

The prosecutor's submissions

1. Counsel for the prosecutor referred to condition 3 of the development consent, which I have extracted at [14] above, and noted that the maximum amount of material that could be produced at a production rate of 150 tonnes per day over a period of 120 days or four months was 18,000 tonnes.
2. Counsel for the prosecutor stated that cl 2.1.2 of the SEE clearly set out the requirement the subject of the First Charge. In its written submissions, the prosecutor contended that cl 2.1.2 was not "a statement that [the plant] would have a mechanical design so that it physically, no matter how operated, could not produce more than 150 tonnes per day", but rather, a statement that the plant, as operated, would not produce more than 150 tonnes per day. It also emphasised that there was no reference in the SEE to the plant having a "design limitation" such that it could not produce more than 150 tonnes per day. At the hearing, counsel for the prosecutor emphasised that, while the word "capacity" was used, reference was also made to "maximum daily production".
3. In its written submissions, the prosecutor submitted that condition 4 imposed a "discrete requirement" which was additional to the requirement in condition 1 since condition 1 required that "the carrying out of the development must be substantially in accordance with the SEE", where the prosecutor placed emphasis on the phrase "substantially in accordance with the SEE".
4. Counsel for the prosecutor submitted that condition 4 of the consent conditions was simply an "independent condition" that the production must not exceed 150 tonnes per day and was not intended to amend the requirements of the SEE. The prosecutor also referred to cl 3.1.3 and that portion of Part 5 of the SEE to which I have referred at [18] which it submitted supported its contention. However, it is difficult to see why condition 4 was required if the SEE already contained that requirement.
5. At the hearing, counsel for the prosecutor submitted that the construction of the SEE favoured by the primary judge was "logically at odds with the incorporation by condition 1 of the engineering and design plans for the facility" because the plant would have "whatever capacity those plans dictate". However, he acknowledged that there was no evidence that the engineering plans were inconsistent with a capacity of 150 tonnes per day. He pointed to the fact that the plant was a mobile plant and was, in those circumstances, "no doubt subject to various different approvals, regimes", as it moved about the country, while maintaining the same "uniform physical production capacity".

Consideration

1. The principles governing the construction of a development consent were summarised by Payne JA in Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd [2017] NSWCA 263 (Bunderra Holdings) in the following terms at [158]: "(1) the nature and extent of the approved development must be determined by construing the document of approval, including any plans or other documents which it incorporates, aided only by that evidence admissible in relation to construction which establishes, or helps to establish, the true meaning of the document as the unilateral act of the relevant authority, not the result of a bilateral transaction between the applicant and the Council. Thus evidence of the nature of the site would always be admissible for this purpose, as would be, in appropriate cases, evidence as to the meaning of the marks on plans, or indeed, the meaning of the absence of particular marks: Parramatta City Council v Shell Co of Australia Ltd [1972] 2 NSWLR 632 at 637; (1972) 27 LGRA 102 at 107 per Hope JA; (2) a development consent is to be construed according to its terms, having regard to its enduring nature. A development consent has an enduring nature because it is not personal to the applicant but is a public document operating in rem for the benefit of third parties such as subsequent owners, occupiers and security holders, and in some respects is equivalent to a document of title: House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; 106 LGERA 440 at [23]; Winn v Director-General of National Parks and Wildlife (2001) 130 LGERA 508 at [4]: The enduring nature of a development consent encourages a fair but liberal reading of the rights it confers upon a landowner who may spend considerable money acting upon it and who is likely to wish to sell the land sooner or later: House of Peace at [41]; (3) a development consent is to be construed not as a document drafted with legal expertise, but to achieve practical results: Westfield Management Limited v Perpetual Trustee Company Limited [2006] NSWCA 245 at [36]; Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd (2009) 167 LGERA 395, at [105]; and (4) as a general rule, a development consent, being a public document operating in rem for the benefit of third parties, should be construed without reference to extrinsic evidence other than to identify a thing or place referred to in it. That extrinsic evidence is not led to vary the consent but to identify a thing or place referred to in it. Evidence as to the nature or physical features of the land may also be admissible for that purpose, at least those features observable by a third party at the time of the consent: Allandale Blue Metal Pty Ltd v Roads and Maritime Services (2013) 195 LGERA 182 at [44]; Shell Co of Australia at 637; 107." See also the judgment of Leeming JA at [56], [63]-[64].
2. Although I accept, as Leeming JA pointed out in Bunderra Holdings at [56], quoting Westfield Management Ltd v Perpetual Trustee Company Ltd [2006] NSWCA 245 at [36], that "conditions of consent are to be construed not as documents drafted with legal expertise, but to achieve practical results", I am of the opinion that, nevertheless, principles of statutory construction can be of assistance in construing a development consent. In particular, the development consent should be construed to produce a "harmonious" result and to "give meaning to every word" of its provisions: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [70]-[71].
3. In the present case, condition 4 expressly places a limit on plant production. The SEE does not expressly do so. Rather, cl 2.1.2 and cl 3.1.3 of the SEE each deal with "capacity". While Part 5 of the SEE refers to the "production capacity" being "limited to 150 tonnes per day" and cl 4.6 refers to a "maximum daily output" of 150 tonnes per day, there is no express limitation on plant production as contained in condition 4. Further, the reference in cl 4.6 to the "maximum daily output" of 150 tonnes per day was made in the context of a statement that the output was expected to generate up to "12 truck movements and 4 car movements" per day.
4. While it may be possible to construe the SEE as imposing a limit on plant production, it does not expressly do so and I think that this is something recognised by the Council in imposing condition 4 as a condition of the development consent. In my opinion, in these circumstances, where the SEE does not expressly impose the limit on plant production, the provisions of the SEE to which I have referred at [37] above should not be construed as doing so.
5. It follows that Question 1 of the submitted questions should be answered "No".

The prosecutor's submissions

1. In relation to the Second Charge, the prosecutor emphasised that it was a contravention of s 76A(1)(b), namely, a failure to carry out the development "in accordance with" the consent. Counsel for the prosecutor submitted that what was alleged was an offence of a "continuing nature", although he said, "not on every day, that's not the nature of continuing when used in this context. The plant's closed on a Sunday after all and it was closed over the Australia Day period". He submitted that, when the plant was operating, the respondent engaged in a "course of conduct" to produce more than 150 tonnes per day. He emphasised that s 126(1) envisaged a "continuing offence" in providing for the imposition of daily penalties. He submitted that it was well-established that a continuing offence need not continue "on each and every day within the charge period".
2. Counsel for the prosecutor referred to the judgment of Kirby J in Walsh v Tattersall (1996) 188 CLR 77 at 108; [1996] HCA 26 (Walsh v Tattersall), and submitted that the indicia referred to by his Honour, namely, the "connection of the events in point of time", the "similarity of the acts", the "physical proximity of the place where the events happened", and "the intention of the accused throughout the conduct", all pointed to the offence being a "continuing offence" in the present case. He submitted that there was "unity of time" and "complete similarity of the acts", and noted that it was "production from the same plant in the same spot to the same effect as part of the same project".
3. Counsel for the prosecutor submitted that the approach to be taken was correctly set out by Leeming JA in Truegain at [50]-[52]. He submitted, referring to that judgment, that the "starting point" was the construction of the statute and reiterated that the offence could be treated as a "continuing offence" by reason of the penalty provisions in s 126(1) and the terms of s 76A itself. He submitted that this approach was supported by what was said by Gaudron and Gummow JJ in Walsh v Tattersall at 91.
4. Counsel for the prosecutor submitted that this approach was also supported by the decisions of this Court in CSR Ltd v Environmental Protection Authority [2000] NSWCCA 373 at [44]-[45], R v Moussad [1999] NSWCCA 337 at [32]-[33], [64], R v Hamzy (1994) 74 A Crim R 341, and Director-General of Department of Land and Water Conservation v Greentree (2003) 140 A Crim R 25; [2003] NSWCCA 31 at [43]. He noted that the last case determined that unauthorised land clearing over a period of time could constitute a "continuing offence".
5. Counsel for the prosecutor placed particular reliance on Hakim v Waterways Authority (NSW) [2006] NSWCCA 376 at [82]-[88] (Hakim), where he submitted that a charge of carrying out unauthorised excavation involving two acts some three months apart was held to be able to be charged as a single offence since there was "sufficient unity in terms of time, place and purpose".
6. In relation to the Third Charge, the prosecutor repeated the submissions made in relation to the Second Charge.

The respondent's submissions

1. The respondent submitted that the date on which condition 4 was breached by producing more than 150 tonnes was "an essential factual ingredient of the actual offence". It submitted that the failure to identify that essential ingredient was "not merely technical", but was "fundamental", and as such, the charge was defective. Senior counsel for the respondent submitted that condition 4 looked at "24-hour periods" and that whether there was a breach on one day was not relevant to the question of whether there was a breach on another day.
2. Senior counsel for the respondent submitted that the position in the present case was the same as that described by Gaudron and Gummow JJ in Walsh v Tattersall at 91, where, in the context of the offence of obtaining by dishonest means any payment or other benefit, it was said that a "discrete offence" arose upon the receipt of any one payment or benefit.

Consideration

1. There is no doubt that, where acts form part of the "same transaction or a criminal enterprise", they can be charged as a single count: Truegain at [48]. This approach has been affirmed in many cases, including a number involving environmental protection legislation.
2. In Hakim, the appeal was concerned with the offence of carrying out excavation work on protected land without a permit contrary to s 22B(2) of the Rivers and Foreshores Improvement Act 1948 (NSW). The particulars to the charge identified several distinct excavations described in the judgment as the "slab excavation", which took place in October and November 2003, and the "rock fall excavation" and "ramp excavation", which both took place on February 2004. The charge was found not to be bad for duplicity. Spigelman CJ made the following remarks at [85]-[87]: "[85] At all times the prosecution advanced a case that there was a single overall enterprise, in the sense that there was one construction project which encompassed all acts of excavation necessary or convenient to be carried out for its fulfilment. The charge encompassed every act of excavation within the foreshore area, howsoever separated in time or location. With respect to one aspect of the charge - whether the Appellant caused the rock fall - the Appellant succeeded. With respect to what came before - the slab excavation and what came after - the ramp excavation, the Appellant failed. [86] I do not find anything unreasonable in a charge of this character. A single construction project can involve numerous acts, capable of separate treatment for different purposes. This case focused on two locations: the area of the slab and the area of the cliff face. It does not appear that the two locations necessarily exhausted the full range of acts capable of constituting an excavation on the site. If some other act within the period were to be the subject of a charge, the Appellant could, in my opinion successfully, plead autrefois convict. [87] Nothing in the scope and purpose of the legislative scheme suggests that the word 'excavation' requires a process of specification of each distinct act capable of constituting, in some technical or other sense, a different excavation. It is appropriate that the prohibited conduct should be understood as extending to a course of conduct over a period of time pursuant to an overall scheme."
3. It is important to note that his Honour's conclusion was based on the fact that nothing in the "scope and purpose" of the relevant legislation required a "specification of each distinct act capable of constituting, in some technical or other sense, a different excavation". As Leeming JA pointed out in Truegain at [52], referring to what was said by Basten JA in Hannes v Director of Public Prosecutions (Cth) (No 2) [2006] NSWCCA 373 at [9] and Jordan CJ in Ex parte Polley; Re McLennan (1947) 47 SR (NSW) 391 at 392, the question of "whether an enactment creates one offence or several depends upon its subject matter and language considered in their context".
4. Nonetheless, despite some relaxation of the principle in the United Kingdom, as demonstrated in Director of Public Prosecutions v Merriman [1973] AC 584 at 607, the strict approach to the question of duplicity remains the law in this country. In Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77 (Johnson v Miller), to prove a charge that, during prohibited hours, certain persons were seen coming in or out of premises of which the defendant was the licensee, it was proposed to particularise that about 30 men were seen coming in or out of the premises at the relevant times. Only four men were able to be identified by the prosecution. Dixon J stated at 483 that he was unable to agree that the departure of persons from the premises "on distinct occasions however close in point of time" could be treated as constituting one offence. His Honour made the following remarks at 489: "For, in many cases, evidence of more than one offence cannot be admitted, and under one charge to take evidence of a number of separate instances of the commission of the same offence because each will indifferently fit the complaint is to pursue a course contrary to law. It cannot be enough to require the complainant to elect among the instances he has proved after his evidence has been given in full. Where an information or complaint is so drawn as to disclose more than one offence and one set of facts amounts to each of the various offences covered by the charge, as was the case in Johnson v. Needham [[1909] 1 KB 626], the proper course is to put the complainant to his election. In such a case, to wait to the end of his evidence before doing so may be convenient and may cause no injustice. But it is the converse of the present case, where the question is whether the prosecutor should not be required to identify one of a number of sets of facts, each amounting to the commission of the same offence as that on which the charge is based. In my opinion he clearly should be required to identify the transaction on which he relies and he should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint. 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."
5. In the same case, Evatt J explained the rule in the following terms at 497-498: "It is an essential part of the concept of justice in criminal cases that not a single piece of evidence should be admitted against a defendant unless he has a right to resist its reception upon the ground of irrelevance, whereupon the court has both the right and the duty to rule upon such an objection. These fundamental rights cannot be exercised if, through a failure or refusal to specify or particularize the offence charged, neither the court nor the defendant (nor perhaps the prosecutor) is as yet aware of the offence intended to be charged. Indeed the matter arises at an even earlier stage. The defendant cannot plead unless he knows what is the precise charge being preferred against him. If he so chooses, a defendant has a right to plead guilty, and therefore to know what it is he is being called upon to answer." See also John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508 at 519; [1987] HCA 42; S v The Queen (1989) 168 CLR 266 at 284; [1989] HCA 66.
6. In Walsh v Tattersall, the defendant was charged under the Workers Rehabilitation and Compensation Act 1986 (SA) with obtaining by dishonest means "payments or benefits" under the Act. A series of payments was alleged. The defendant was convicted and this conviction was upheld by the Full Court of the Supreme Court of South Australia, but was later quashed by the High Court. Kirby J, who formed part of the majority, held that the count was bad for duplicity.
7. His Honour affirmed the approach taken in Johnson v Miller indicating at 110 that he could not agree to any reduction to the "strict approach to resolving questions of duplicity in the pleading of criminal charges". He stated at 108 that a consideration of whether criminal acts were sufficiently close in time and space to "fairly and properly be identified as part of the same criminal enterprise" involved consideration of various indicia including the "connection of the events in point of time", the "similarity of the acts", the "physical proximity of the place where the events happened" and the "intention of the accused throughout the conduct".
8. Although Gaudron and Gummow JJ, the other members of the majority, did not decide the question on the ground of duplicity, they held that the defendant was not properly charged with an offence under the Act because the Act dealt with "discrete offences" which were completed on the receipt of each payment. They contrasted the offence under the Act with one defined in terms of a course of conduct or state of affairs: Walsh v Tattersall at 91.
9. Section 76A(1) of the EPA Act is plainly a provision which can apply to a continuing course of conduct such as, for example, the use of premises contrary to the terms of a development consent, or engaging in construction on premises not in accordance with the terms of such a consent. This is recognised by the fact that s 126(1) imposes a daily penalty for ongoing contraventions of provisions of the Act, which would include a contravention of s 76A(1)(b).
10. However, s 76A(1) also extends to breaches of particular provisions of the consent. It is not disputed that such breaches can be charged as separate offences. That is illustrated in the present case by the separate charges in respect of the alleged contraventions of conditions 4 and 6.
11. In the present case, the prosecutor contends that what was involved in each of the Second and Third Charges was a "continuing offence" and that, in effect, there was one contravention of the same nature which continued on each day that the plant was open. By contrast, the respondent contends that condition 4 and condition 6 envisage "discrete offences" on each day that the conditions were breached. However, the respondent did not seem to adopt the approach of Gaudron and Gummow JJ in Walsh v Tattersall and contend that the charge was bad in law for that reason, but rather, simply asserted that it was duplicitous.
12. Thus, the question is whether the particularised charges relate to "discrete" contraventions of s 76A(1)(b) occurring on each day that the condition was contravened or whether the contravention is capable of being seen as a "continuing course of conduct" constituting one offence. If the former is the correct characterisation, then the charges are bad for duplicity. If the latter, then they are not.
13. In my opinion, each breach of condition 4 and condition 6 constitutes a separate contravention of s 76A(1)(b) of the EPA Act because the relevant contravention is the carrying out of the relevant act stated in the condition on a particular day. A separate contravention occurs on each day that the plant produces more than 150 tonnes (the Second Charge) or where more than 12 trucks enter or leave the site of the plant on the day in question (the Third Charge). This is consistent with the plain language of each of the conditions, which refer in terms to the particular limitations being imposed "per day".
14. The question may be tested in the following way. During the course of its submissions, the prosecutor indicated that it would seek to prove that the contraventions occurred on each day in the period specified in the Second and Third Charges. Notwithstanding if it could only be proved that a contravention occurred on only one of the days in that period, the offence as charged would be made out. In my opinion, this demonstrates that the charge encompasses multiple separate offences rather than a single offence.
15. For these reasons, the Second and Third Charges are bad for duplicity.
16. In the result, I would make the following orders: 1. Answer the questions submitted to the Court pursuant to s 5AE of the Criminal Appeal Act 1912 (NSW) as follows: Question 1: Did I err in finding that the charge in Summons 16/381473 alleging a breach of Condition 1 of the consent was a charge that it was not open to lay, because the terms of Condition 1 (by its incorporation of the Statement of Environmental Effects) provided a limitation on the capacity of the plant rather than on the actual operation of the plant to produce not in excess of 150 tonnes per day as this limitation is an obligation only found in the terms of Condition 4? Answer: No. Question 2: Did I err in finding that the charge in Summons 16/381474 was bad for duplicity, because it nominated a range of dates on which the offending conduct being a breach of Condition 4 is alleged to have occurred rather than only a single day? Answer: No. Question 3: Did I err in finding that the charge in Summons 16/381475 was bad for duplicity, because it nominated a range of dates on which the offending conduct being a breach of Condition 6 is alleged to have occurred rather than only a single day at any one time? Answer: No. 1. Remit the application to the Land and Environment Court of New South Wales to be dealt with according to law. 2. Order the applicant to pay the respondent's costs of the proceedings in this Court.
17. FULLERTON J: I agree with the Chief Justice.
18. CAMPBELL J: I agree with the orders proposed by the Chief Justice for the reasons his Honour has expressed.

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