Sydney Catchment Authority v Bailey

KEY ISSUES: Prosecution :- whether a statutory corporation has a right to institute a prosecution - whether the Sydney Catchment Authority has power to institute this prosecution for an offence against the Environmental Planning and Assessment Act 1979 (NSW)

Corporations Act 2001 (Cth), s 124(1) Crimes Act 1914 (Cth), s 13 Criminal Procedure Act 1986 (NSW), s 14 Environmental Planning and Assessment Act 1979 (NSW), ss 5(a), 30, 76A, 79B(8), 123, 125, 126, 127 Fines and Penalties Act 1901 (NSW), s 4 Interpretation Act 1897 (NSW), s 38(1)(c) LEGISLATION CITED: Interpretation Act 1987 (NSW), ss 6, 21, 33, 50(1)(c), 50(1)(e) Protection of the Environment Operations Act 1997 (NSW), ss 6, 218, Part 8.2 Div 2 Sydney Water Act 1994 (NSW), ss 5, 12 Sydney Water Catchment Management Act 1998 (NSW), ss 3, 6, 13, 14, 15, 16, 17, 18, 19, 22, 25, 44, Sch 6 cl 8 Sydney Water Catchment Management (Environment Protection) Regulation 2001 Trade Practices Act 1974 (Cth), s 80(1) Wollondilly Local Environmental Plan 1991, cll 10, 17

Attorney General v Walker (1849) 3 Ex 242; Australian Securities and Investments Commission v Vis (2000) 158 FLR 56; Bedingfeld v Keogh (1912) 13 CLR 601; Bond v The Queen (2000) 201 CLR 213; Botany Municipal Council v Federal Airports Corporation (1992) 175 CLR 453; Brebner v Bruce (1950) 82 CLR 161; Burton v Honan (1952) 86 CLR 169; Byrnes v The Queen (1999) 199 CLR 1 and Bond v The Queen (2000) 201 CLR 213; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; Commonwealth v The Progress Advertising and Press Agency Co Pty Ltd (1910) 10 CLR 457; Director of Public Prosecutions v Australian Broadcasting Corporation (1987) 7 NSWLR 588; Ex parte Dyer; Re Johns (1935) 52 WN (NSW) 185; Ex parte MacFarlane (1926) 26 SR (NSW) 473 ; Gilmour v Bastian (1918) 34 WN (NSW) 239; Grant v Thompson (1895) 72 LT 264; CASES CITED: Grassby v The Queen (1989) 168 CLR 1; Kathleen Investments (Australia) Ltd v Australian Atomic Energy Commission (1977) 139 CLR 117; Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672; MacLaurin v Hall (1913) 13 SR (NSW) 114; Mensinga v DPP [2003] ACTCA 1; Owners, Metro Inn Apartments Strata Plan 11880 v Transmetro Corporation Ltd [No 1] (2000) 36 ACSR 48; 24 WAR 1; Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; Phelps v Western Mining Corporation Ltd (1978) 33 FLR 327 at 333-334; 20 ALR 183; Proprietors of Strata Plan No 6522 v Furney (1976) 1 NSWLR 412; Proprietors Unit Plan No 52 v Gold (1993) 44 FCR 123 at 126; R v Norris (1825) Keny 300; 96 ER 1189; R v Thompson (1991) 58 A Crim R 81; Spautz v Gibbs (1990) 21 NSWLR 230; State Drug Crime Commission (NSW) v Chapman (1987) 12 NSWLR 447; Sydney City Council v Building Owners and Managers Association of Australia Ltd (1985) 2 NSWLR 383; White v Phipps (1932) 32 SR (NSW) 448; Whitmore v Bohrsmann (1932) 49 WN (NSW) 73

PROSECUTOR: Mr D Buchanan SC with Mr T G Howard, barrister SOLICITORS Sydney Catchment Authority LEGAL REPRESENTATIVES:

DEFENDANT: Mr P Taylor SC with Ms S Chrysanthou, barrister SOLICITORS PricewaterhouseCoopers Legal

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT HIS HONOUR: 1 The Sydney Catchment Authority (Authority), a statutory corporation, has instituted a prosecution against the defendant for an offence against the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) of carrying out a development without a development consent. This is an application by the defendant that the prosecution be summarily dismissed. There are two issues: (a) does a statutory corporation have a right to institute a prosecution? (b) does the Authority have power to institute this prosecution? 2 The Authority is a statutory corporation constituted under s 6 of the Sydney Water Catchment Management Act 1998 (NSW) (SWCM Act). The proceedings are summary enforcement proceedings in class 5 of the Court's jurisdiction. The summons relevantly seeks the following orders: 1. An order that the defendant Mr Barry Waldon Bailey of 14 Blenheim Avenue, Oberon, New South Wales appear before a Judge of the Court to answer to the charge that between about 25 April 2004 and 26 April 2004 at Yeranderie in the State of New South Wales he committed an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 in that he did the following thing which was forbidden to be done by the said Act. He did carry out development on land, being development which required development consent under the provisions of an environmental planning instrument which applied to the land, where a development consent had not been obtained and was not in force with respect to the development, contrary to s 76A(1)(a) of the said Act.

Land The development was carried out on a corridor of Crown Land near Mt Egan in the Warragamba Dam catchment (the ' Land ') being land declared as a special area under the Sydney Water Catchment Management Act 1998 and being land under the care and management of the Department of Environment and Conservation (National Parks Division) and the Sydney Catchment Authority.

Further particulars of the precise location of the Land are provided in the survey plan which is annexed to the affidavit of Brett Davies, sworn 27 September 2005.

Development The development comprised the carrying out of a work on the Land, namely construction of a road and/or the use of the Land as a road. The development involved the carrying out of earthworks, clearing of vegetation and the construction of an earthen road approximately 2.5 - 3 kilometres in length and approximately 3 to 4 metres in width from a point near the end of the Jooriland Range Trail at Mt Egan to a point near the location of a hut on the land owned by the defendant being Lot 56 DP 757057 for the use of that land as a road for vehicular access to Lot 56 DP 757057.

Environmental Planning Instrument Wollondilly Local Environmental Plan 1991, as updated to April 2004, (the ' Wollondilly LEP ') applied to the Land. The Land is, and at all relevant times was, land zoned within Zone No 5(c1)(Special Uses "C1")(Water Catchment) Zone) under the Wollondilly LEP. Pursuant to clause 10 of the Wollondilly LEP and the zoning table with respect to Zone No 5(c1), the said development was permissible only with development consent.

Particulars of the conduct of the defendant in the carrying out of the development The said development was carried out by the defendant personally and by a person or persons acting on the instruction of the defendant. The defendant hired and used a 9 tonne Drott to carry out the development.

2. An order that the defendant be dealt with according to law for the commission of the offence.

3. Such order or orders under s 126(3) of the Environmental Planning and Assessment Act 1979 as the Court sees fit to make.

3 For the purposes of this summary dismissal application, the defendant concedes the matters alleged in the parts of the summons underlined above; and concedes that the development the subject of the charge had an adverse environmental impact on the catchment and the potential to adversely affect the quality of the water in the catchment. The case falls to be decided on the concessions, the summons and one exhibit, being the Authority's operating license under the SWCM Act.

4 Proceedings for an offence against the EPA Act may be brought in this Court: EPA Act s 127(1). To do anything forbidden by the EPA Act is an offence: s 125(1). If an environmental planning instrument provides that a specified development may not be carried out except with development consent, s 76A forbids a person from carrying out the development on land to which the provision applies. The relevant environmental planning instrument is the Wollondilly Local Environmental Plan 1991 (Wollondilly LEP). It provided that development must not be carried out on the subject land without a development consent by the council, and that a consent could not be granted without the concurrence of the Authority. The development which the defendant is alleged to have carried out was therefore forbidden by s 76A because no development consent was obtained by the defendant.

5 The alleged development was the construction of a road and using land as a road without a development consent. The land was declared as a "special" area under the SWCM Act. A "special area" is one which the Governor has, on the recommendation of the Minister, by order published in the Gazette, declared to be a special area: s 44(1). The Minister may not make such a recommendation unless the Minister certifies that the Minister is satisfied that the making of the order is necessary for one or both of the following purposes: (a) protecting the quality of stored waters, whether intended for use for drinking or other purposes; (b) maintaining the ecological integrity of an area of land to be declared to be a special area in a manner that is consistent with the Authority's objectives: s 44(2).

The Submissions 6 In summary, the Authority submitted: (a) it was authorised to commence the proceedings by s 14 of the Criminal Procedure Act 1986 (NSW) and the fact that the EPA Act does not confine the authority to commence proceedings under s 127 of the EPA Act to a person or class of persons.

(b) it has power to bring these proceedings because of the functions conferred on it by the SWCM Act ; the location of the subject land within the catchment for which the Authority is responsible; the defendant's concessions as to the detrimental effect of the defendant's development upon the catchment; and the Authority's power under s 50(1)(e) of the Interpretation Act 1987 (NSW) to do things that are necessary for, or incidental to, the exercise of its functions.

(c) s 50(1)(e) of the Interpretation Act 1987 confers power upon a statutory corporation to do things by law that are necessary for, or incidental to, the exercise of its functions. What is regarded as necessary for or incidental to a designated function should be viewed liberally. By virtue of s 50(1)(e), the Authority has power to perform its functions under the SWCM Act to protect the land on which the road was constructed and the environment of that part of the catchment which the road affects. Those functions include a concurrence function: SWCM Act ss 17 and 18, Schedule 6 cl 8; Wollondilly LEP, cl 17. These proceedings were necessary or incidental to the performance of its functions. Reference was made to a number of authorities to which I refer below as appropriate.

7 In summary, the defendant submitted: (a) s 14 of the Criminal Procedure Act 1986 (NSW) does not permit a statutory authority to institute a prosecution because " person " in s 14 does not include a statutory corporation. (b) the Authority's absence of power under s 50(1)(e) principally derives from three considerations. First, the absence of any relevant function conferred upon it as a consent authority in relation to development. Secondly, the subject offence is concerned exclusively, in relation to its factual elements, with functions other than those conferred upon the Authority. Thirdly, the Authority's powers are so extensive under its own constituent legislation, that they relevantly subsume any practical result that might be obtained from these proceedings.

(c) the power in section 50(1)(e) to do things ' necessary for, or incidental to ' the exercise of functions only extends to activities which are relevantly essential, albeit in a practical rather than a logical sense, to the actual effective exercise of the function: Director of Public Prosecutions v Australian Broadcasting Corporation (1987) 7 NSWLR 588. (d) although s 50(1)(e) confers power upon a statutory corporation to do things by law that are necessary for, or incidental to, the exercise of its functions, this particular prosecution is not necessary for or incidental to the Authority's functions: Proprietors of Strata Plan No 6522 v Furney [1976] 1 NSWLR 412 and Owners, Metro Inn Apartments Strata Plan 11880 v Transmetro Corporation Ltd [No 1] (2000) 36 ACSR 42; 24 WAR 1. Its function under section 18 of the SWCM Act is irrelevant because s 18 deals with an unrelated matter of licensing legislation. Its function under section 17 of the S WCM Act and cl 17 of the Wollondilly LEP do not assist the Authority because they are concerned with concurrence by the Authority to a development consent granted by a council, whereas here there was no development consent. The only thing that the Authority could take into consideration when deciding to concur in a development consent under the Wollondilly LEP was the likelihood of waters being polluted, which is not an element of the offence.

Does a Statutory Authority have a Right to Institute a Prosecution? 8 A right to institute a prosecution for an offence under an Act is contained in the Criminal Procedure Act 1986 s 14: A prosecution or proceeding in respect of any offence under an Act may be instituted by any person unless the right to institute the prosecution or proceeding is expressly conferred by that Act on a specified person or class of persons.

9 Section 14 confers a right, not a power. It assumes that the "person" to whom it refers has power or capacity to institute the prosecution. For example, s 14 would not permit a person under a legal incapacity, such as a child or a lunatic, to institute a prosecution.

10 The present prosecution is in respect of an offence under the EPA Act which does not expressly confer a right to institute a prosecution on anyone. Consequently, the exception in the tail of s 14 is inapplicable. Hence, under s 14, "any person" has the right to institute this prosecution.

11 The defendant submitted that "any person" in s 14 does not include a statutory corporation. The defendant argued that the context in which s 14 should be construed was its derivation from a common law rule that private persons, but not corporations, can bring prosecutions; and that, considered in this context, s 14 should be construed so as not to apply to statutory corporations.

12 The existing state of the common law when legislation is enacted is, I accept, part of the context to which regard may be had when interpreting the legislation. The modern approach to statutory interpretation uses "'context' in its widest sense to include such things as the existing state of the law": CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ.

13 Two questions arise. Did the common law rule preclude corporations from prosecuting? In any case, does it matter, given the terms of s 14, the definition of "person" in s 21 of the Interpretation Act 1987 (NSW) and the terms of s 6 of the latter Act? Section 21 provides that "person includes an individual, a corporation and a body corporate or politic". Section 6 provides that: "Definitions that occur in an Act or instrument apply to the construction of the Act or instrument except insofar as the context or subject-matter otherwise indicates or requires". The defendant seeks to invoke s 6.

14 Section 14 of the Criminal Procedure Act 1986 was originally numbered s 18 and was inserted in the Criminal Procedure Act 1986 by the Fines Act 1996, which repealed s 4 of the Fines and Penalties Act 1901. Section 4 provided: "Any fine, penalty or forfeiture imposed or authorised to be imposed by any Act may be sued and proceeded for by any person whomsoever unless by the Act imposing the same such right to sue or proceed is expressly given to any officer or person by name or designation". In Bedingfeld v Keogh (1912) 13 CLR 601 Griffiths CJ was required to consider whether a prosecution for a breach of the Pure Food Act 1908 (NSW) could be instituted by anyone but an officer of the Board of Health. Section 9 of the Pure Food Act provided that 'The administration and the enforcing of the provisions of this Act shall primarily be the duty of the Board of Health, but may, by the direction of the Governor, be left in any case to the local authority, who shall, however, be subject to the provisions of sec. 24 of the Public Health Act 1902.' A member of the police force prosecuted the defendant for a breach of the Pure Food Act. The issue was whether a police officer could do so. The High Court held that a prosecution for an offence against provisions of the Pure Food Act could be instituted by any person under the general authority given by s 4 of the Fines and Penalties Act 1901, the right to prosecute not having been given by the Pure Food Act to any officer or person by name or designation. Griffith CJ said, at 604: The general rule of law was stated by Kay L.J. in R v Stewart (1896) 1 QB 300 at 303, as follows : 'Prima facie there is no doubt that anybody may take proceedings to recover a penalty. That is an old rule and is well established. The Act now under consideration in terms provides that penalties shall be imposed for certain acts, and that these penalties shall be regarded as though they were penalties incurred under the Summary Jurisdiction Acts . In order to prevent the application of the general rule, it must be shown that the Act in plain terms prevents anyone, except certain specified persons, from prosecuting for offences under the Act. I can find no such provision.' Apart from that general rule of law, in New South Wales the Fines and Penalties Act 1901, by sec. 4 provides that [section 4 was quoted]. What is necessary to be established, therefore, is that the Pure Food Act expressly gives some particular person the right to sue.

15 In R v Thompson (1991) 58 A Crim R 81 (NSWCCA), after reciting the above dictum in Bedingfeld, Priestley JA (with whom Kirby P and Hope JA agreed) said at 84-85: "The common law position is in one respect modified, but otherwise confirmed by s 4 of the Fines and Penalties Act … The right of any private person to prosecute a criminal charge is of very long standing in the legal systems of England and New South Wales… This right can only be displaced by clear words in a statute or statutory instrument". Other cases which have applied s 4 of the Fines and Penalties Act 1901 include MacLaurin v Hall (1913) 13 SR (NSW) 114, where the Full Court held at 119: "The law appears to me to be perfectly clear that in a case of this kind, where a matter of public policy is involved, the information may be laid by any member of the public"; Gilmour v Bastian (1918) 34 WN (NSW) 239 (leave to appeal was refused by the High Court in (1917) 24 CLR 14 at 16); Whitmore v Bohrsmann (1932) 49 WN (NSW) 73; and Ex parte Dyer; Re Johns (1935) 52 WN (NSW) 185. The cases of Ex parte MacFarlane (1926) 26 SR (NSW) 473 and White v Phipps (1932) 32 SR (NSW) 448 are illustrations of express conferral of the power to institute criminal proceedings upon a specified person or persons, resulting in an ouster of s 4. In Mensinga v DPP [2003] ACTCA 1 at [39], the ACT Court of Appeal cited Thompson as authority for the proposition that the function of instituting criminal proceedings is not exclusive to the DPP. See also K Anderson, The Informant and His Authority to Prosecute (1942) 15 ALJ 310.

16 In R v Thompson (above), Priestley JA stated that the common law position had in one respect been modified by s 4 of the Fines and Penalties Act 1901. His Honour did not explain what the modification was. I do not think that he had in mind the exception in the tail of the section because that seems to reflect the common law, according to the cases reviewed by Fullagar J in Brebner v Bruce (1950) 82 CLR 161 at 174-175. In that case, in the context of a similar provision in s 13 of the Crimes Act 1914 (Cth), Fullagar J concluded in effect that s 13 clarified and modified the common law because the common law presumption that any person may prosecute was limited to "offences of a public character" whereas s 13 was not so limited. His Honour did not explain what the modification was. Section 13 of the Crimes Act 1914 (Cth) provides: "Unless the contrary intention appears in the Act or regulation creating the offence, any person may (a) institute proceedings for the commitment for trial of any person in respect of any indictable offence against the law of the Commonwealth; or (b) institute proceedings for the summary conviction of any person in respect of any offence against the law of the Commonwealth punishable on summary conviction". In Brebner at 164, Latham CJ (with whom Webb and Kitto JJ agreed) said: "Thus the presumption is that any person whosoever may institute a prosecution for any offence against a Commonwealth Act or regulation. In order to exclude the application of this presumption it is necessary that a contrary intention should appear in the legislation creating the offence". McTiernan J said (at 169-170): "The principle which underlies s 13 is that the enforcement of the criminal law is generally a concern of the public". His Honour quoted Wills J in Grant v Thompson (1895) 72 LT 264 at 265: "Every person has an interest, and is allowed to put the law in motion in criminal matters".

17 Some of the cases referred to above, such as Bedingfeld, Thompson and Grant refer to the common law right of "anybody", "any private person" or "every person" to prosecute. The defendant submitted that this indicates that, at common law, a corporation did not have the right to prosecute. I disagree. Those cases were not concerned with corporations.

18 The reason for the presumption that anyone can institute a prosecution is that it is a strong guarantee for the due observance of the law of the land. Said Sir James Stephen, writing in 1883 in his History of the Criminal Law of England, vol. 1 ch XIV: "no stronger or more effectual guarantee can be provided for the due observance of the law of the land, by all persons under all circumstances, than is given by the power, conceded to every one by the English system, of testing the legality of any conduct of which he disapproves, either on private or on public grounds, by a criminal prosecution. Many such prosecutions, both in our days and in earlier times, have given a legal vent to feelings in every way entitled to respect, and have decided peaceably, and in an authentic manner, many questions of great constitutional importance". This passage was quoted in Spautz v Gibbs (1990) 21 NSWLR 230 at 247 by Priestley JA.

19 The common law was glad for a prosecution as to criminal behaviour to come from any quarter. In R v Norris (1825) Keny 300; 96 ER 1189 leave was granted to file an information against the defendant for conspiracy to raise the price of salt. Lord Mansfield CJ declared: "that if any agreement was made to fix the price of salt, or any other necessary of life (which salt emphatically was), by people dealing in that commodity, the Court would be glad to lay hold of an opportunity, from what quarter soever the complaint came, to shew their sense of the crime: and that at what rate soever the price was fixed, high or low, made no difference, for all such agreements were of bad consequence and ought to be discountenanced". This dictum was cited by Deane J in Phelps v Western Mining Corporation Ltd (1978) 33 FLR 327 at 333-334; 20 ALR 183 at 189-190. His Honour noted the modern trend of statutes providing for "any person" to enforce statutory rights in civil proceedings and commented that this was an approach which "has long been established in the ordinary administration of the criminal law". His Honour was speaking in the context of the well known example in the Trade Practices Act 1974 (Cth) s 80(1) which permits "any…person" to apply to the court for an injunction restraining contravention of Parts IV and V of the Act. These plain words of s 80 were unsuccessfully sought to be read down. Commenting on Deane J's judgment, Priestley JA in Sydney City Council v Building Owners and Managers Association of Australia Ltd (1985) 2 NSWLR 383 at 390 said, in the context of the open standing provision in s 123(1) of the EPA Act: "This paragraph should be read every time a locus standi argument is raised". Priestley JA also said, memorably, that: "when A raises a question whether B is in breach of a law, it is more rational for a court to ask whether it is true that B is in breach of that law than to ask why A should be allowed to ask the court to answer the question" (at 389F).

20 No case, so far as I am aware, has denied a corporation the common law right to prosecute. No reason of principle has been advanced as to why a corporation should have been denied the common law right. Being glad for a prosecution as to criminal behaviour to come from any quarter whatsoever (R v Norris above), in principle the common law would have recognised the right of a corporation to prosecute. Although I have not been referred to any case which has considered the point, if it were necessary to do so I would hold that a corporation had the common law right.

21 However, I do not think that it is necessary to decide the point. Assume that a corporation did not have a right to prosecute at common law. The question under s 6 of the Interpretation Act 1987 is whether that provides a context which "indicates or requires" that the definition of "person" in s 21 (which includes a corporation) does not apply to the word "person" in s 14 of the Criminal Procedure Act, such as to exclude a corporation from the ambit of s 14. The answer, in my opinion, is no. In other words, the definition of "person" in the Interpretation Act applies to s 14 which, therefore, includes a corporation. Section 50(1)(c) of the Interpretation Act 1987 confirms or assumes that a statutory corporation may take proceedings. It provides that "a statutory corporation may take proceedings and be proceeded against in its corporate name" and does not distinguish between criminal and civil proceedings. Were it otherwise, no statutory corporation could invoke s 14 to institute proceedings for a statutory offence unless a right to prosecute was expressly conferred on it by legislation. Councils, which are statutory corporations, commonly institute prosecutions in this Court for offences against the EPA Act, and their right to do so is, I think, an illustration of the application of s 14. The construction for which the defendant contends is not supported by authority, would be disruptive of common practice, and is unlikely to reflect the legislative intention.

22 In my opinion, for these reasons, a statutory authority has the right under s 14 to institute a prosecution.

Does the Authority have Power to Institute this Prosecution? 23 The Authority derives its powers from statute. Although s 127 of the EPA Act provides that proceedings for an offence against that Act may be taken in this Court, the EPA Act is silent as to who may take those proceedings. The SWCM Act confers no express prosecution power on the Authority.

24 In contrast to statutory corporations such as the Authority, registered companies, although created under statute, have the capacity and powers of an individual, having been liberated by statute comparatively recently. Section 124(1) of the Corporations Act 2001 (Cth) relevantly provides: "A company has the legal capacity and powers of an individual both in and outside this jurisdiction. A company also has all the powers of a body corporate, including the power to…"

25 The Authority's power to institute this prosecution has two potential sources which require consideration.

26 The first source is in s 50(1)(e) of the Interpretation Act 1987, which empowers the Authority to do things that are "necessary for, or incidental to, the exercise of its functions". Section 50 relevantly provides: 50 Statutory corporations (1) A statutory corporation: … (c) may take proceedings and be proceeded against in its corporate name, … (e) may do and suffer all other things that bodies corporate may, by law, do and suffer and that are necessary for, or incidental to, the exercise of its functions. … (4) This section applies to a statutory corporation in addition to, and without limiting the effect of, any provision of the Act by or under which the corporation is constituted.

27 The second source is s 17 of the SWCM Act, which gives the Authority such functions as are "necessary or convenient to carry out any concurrence… role" conferred on it under any environmental planning instrument in relation to a catchment area. Section 17 provides: 17 Concurrence and other roles under environmental planning instruments (1) The Authority has such functions as are necessary or convenient to carry out any concurrence or other role conferred or imposed on it by or under any environmental planning instrument in relation to a catchment area. (2) This section does not affect the generality of any other provision of this or any other Act.

28 The relevant environmental planning instrument is the Wollondilly LEP. Clause 17 provides: 17 Development in Zones Nos 5(c1), 5(c2) and 7(a) (1) The council shall not consent to the carrying out of development on land within Zone No 5(c1), 5(c2) or 7(a), being land that is within a special area (within the meaning of the Water Board Act 1987) except with the concurrence of the Water Board. (2) In deciding whether concurrence as referred to in subclause (1) should be granted, the Water Board shall take into consideration the likelihood of waters in the special are concerned being polluted as a result of the carrying out of the proposed development. The subject land is zoned 5(c1). The references in cl 17 to " the Water Board " are to be construed as references to the Authority: SWCM Act Schedule 6 cl 8.

29 The source of the Authority's concurrence function is s 30 of the EPA Act, read with s 79B(8): 30 Consents and concurrences (1) Without limiting the generality of section 26(1)(b), an environmental planning instrument may provide that development specified therein: (a) may be carried out without the necessity for consent under this Act being obtained therefor, or (b) may not be carried out except with consent under this Act being obtained therefor. (2) Where provision is made in accordance with subsection (1) (b), the instrument may provide that a development application in respect of development specified in the instrument shall not be determined by the granting of consent under this Act, except with the concurrence of such Minister or public authority as is specified in the instrument to the carrying out of the development. (3) An environmental planning instrument which makes provision in accordance with subsection (2) shall state the matters which shall be taken into consideration in deciding whether concurrence should be granted. 79B Consultation and concurrence … (8) Granting or refusal of concurrence A person whose concurrence to development is required may: (a) grant concurrence to the development, either unconditionally or subject to conditions, or (b) refuse concurrence to the development. In deciding whether to grant concurrence, the person must take into consideration only the matters stated pursuant to section 30(3) and applicable to the development (unless the relevant environmental planning instrument is a deemed environmental planning instrument).

30 Two other statutory provisions may be put aside as sources of power. One is s 50(1)(c) of the Interpretation Act 1987 (set out above). It is not an empowering provision: Proprietors of Strata Plan No 6522 v Furney (1976) 1 NSWLR 412. There, Needham J held at 414E that the provision which preceded s 50(1)(c) - s 38(1)(c) of the old Interpretation Act 1897 - "is a general provision which is aimed, I think, at the title under which proceedings by a corporation shall be commenced or suffered". The other statutory provision which may be put aside as a source of power is s 18 of the SWCM Act. Although the Authority submitted that s 18 is a source of power, in my opinion it is irrelevant because it is restricted to the Authority's licensing functions.

31 The defendant submitted that because Needham J in Proprietors of Strata Plan No 6522 v Furney (above) did not refer to the provision in the old Interpretation Act 1897 equivalent to s 50(1)(e) of the new Interpretation Act 1987, it should be inferred that his Honour considered that no power to bring proceedings arose under that provision. I do not accept the submission. Needham J found the plaintiff's power to bring proceedings in a provision of the Strata Titles Act 1973. It was, therefore, unnecessary for him to consider the predecessor to s 50(1)(e). There is no indication in the judgment that a submission concerning that provision was made.

32 The defendant submitted that s 50(1)(e) of the Interpretation Act is not a source of power because this prosecution is not necessary for, or incidental to, any function of the Authority; and that s 17(1) of the SWCM Act is not a source of power because this prosecution is not a function that is necessary or convenient to carry out the Authority's concurrence role under the Wollondilly LEP.

33 Section 50(1)(e) raises three questions, having regard to the conjunctive word 'and' which appears in it. First, may a body corporate, by law, institute a prosecution? I have earlier answered this question in the affirmative by reference to s 14 of the Criminal Procedure Act 1986. Secondly, what are the functions of the Authority? Thirdly, is this prosecution "necessary for, or incidental to, the exercise of" the Authority's functions?

34 Section 17(1) of the SWCM Act raises this question: Is this prosecution necessary or convenient to carry out the Authority's concurrence role under the Wollondilly LEP?

"Necessary", "Incidental", "Convenient" 35 In my opinion, what is "necessary" for a designated function should be construed liberally as meaning appropriate or reasonably required, not as meaning absolutely or essentially necessary: Commonwealth v The Progress Advertising and Press Agency Co Pty Ltd (1910) 10 CLR 457 at 469 per Higgins J. In Attorney General v Walker (1849) 3 Ex 242 at 255-256, Pollock CB said: "It may be stated as a general rule that those things are necessary for the doing of a thing which are reasonably required or which are legally ancillary to its accomplishment". This dictum was approved by the High Court in Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 at 452 [51]; and in Owners, Metro Inn Apartments Strata Plan 11880 v Transmetro Corporation Ltd [No 1] (2000) 36 ACSR 48; 24 WAR 1 (WASC, Owen J); State Drug Crime Commission (NSW) v Chapman (1987) 12 NSWLR 447 at 452 (Allen J); and Proprietors Unit Plan No 52 v Gold (1993) 44 FCR 123 at 126 (FC).

36 In Pelechowski, the issue concerned the implied powers of the District Court of NSW, an inferior court of record, to grant an asset preservation order (now described as a "freezing order" in the Federal Court Rules and the NSW Uniform Civil Procedure Rules). The joint judgment of Gaudron, Gummow and Callinan JJ at 451 [50] quoted Dawson J in Grassby v The Queen (1989) 168 CLR 1 at 16 that the general rule is that: "Every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise". The joint judgment continued at 452 [51]: The term 'necessary' in such a setting as this is to be understood in the sense given it by Pollock CB in Attorney General v Walker (1849) 3 Ex 242 at 255-256, namely as identifying a power to make orders which are reasonably required or legally ancillary to the accomplishment of the specific remedies for enforcement provided in Div 4 of Part 3 of the District Court Act . In this setting, the term 'necessary' does not have the meaning of 'essential' ; rather it is to be 'subjected to the touchstone of reasonableness' .

37 A similar provision to s 50(1)(e) was considered in Owners, Metro Inn Apartments Strata Plan 11880 v Transmetro Corporation Ltd [No 1] (2000) 36 ACSR 48. There, Owen J considered the powers and capacity of a strata company constituted under the Strata Titles Act 1985 (WA). Section 32(3)(d) provided that a strata company "may do and suffer all things that bodies corporate generally may, by law, do and suffer and that are necessary for or incidental to the purposes for which a strata company is constituted". Owen J held: [35] Companies, or corporations, can be categorised in a variety of ways. One way is to look at the basis for their formation. In terms of capacity, the authors of Ford's Principles of Australian Corporations Law , 8th ed, 1997, paras 12.050-12.070 distinguish between ' statutory corporations ' and ' chartered corporations '. The latter type is of no relevance to this application. In relation to the latter [sic - former] , the authors say: In contrast to chartered corporations, a corporation created by or by virtue of a statute has, in general, no legal capacity beyond that necessary for the purposes for which it has been created unless the statute shows a legislative intention to create a corporation with a wider capacity: Bonanza Creek Gold Mining Co Ltd v R [1916] 1 AC 566; Re Honey Pool of Western Australia (No 2) (1988) 14 ACLR 621. A statute creating or authorising the creation of a corporation was not read as assimilating the new corporation to a common law corporation in relation to power to make contracts and dispose of property: Baroness Wenlock v River Dee Co (1883) 36 Ch D 675 … [I]n the case of companies the Corporations Law shows that intention by giving them the capacity of a natural person.

[37] In Halsbury's Laws of England , 4th ed, vol 9, para 1333 the question of power is dealt with in this way: The powers of a corporation created by statute are limited and circumscribed by the statutes which regulate it, and extend no further than is expressly stated therein, or is necessarily and properly required for carrying into effect the purposes of its incorporation, or may be fairly regarded as incidental to or consequential upon those things which the legislature has authorised. What the statute does not expressly authorise is to be taken to be prohibited...

[49] Once again, however, questions of capacity and power overlap. While I have interpreted s 32(3)(d) in a broad sense so far as concerns capacity, it is not at large. The subsection is in two parts and they must be read together. A strata company ' may do and suffer all things that bodies corporate generally may, by law, do and suffer and that are necessary for or incidental to the purposes for which a strata company is constituted '. The word ' and ' that I have italicised is clearly conjunctive. While a strata company may have the capacity of a natural person, that capacity can be exercised or utilised only in relation to things that are necessary for or incidental to the purposes for which the company exists. That brings squarely into focus the question of powers.

[59] A question which arises is whether, in terms of s 32(3)(d), the various agreements are ' necessary for or incidental to ' these purposes. The word ' necessary ' is governed by the concept of reasonableness. In State Drug Commission (NSW) v Chapman (1987) 12 NSWLR 447, in an admittedly different statutory context, Allen J said this, at 452: As to the word ' necessary ' it does not have, in my judgment, the meaning ' essential '. The word is to be subjected to the touchstone of reasonableness. The concept is one as to what reasonably is necessary in a commonsense way. As Pollock CB said in Attorney-General v Walker (1849) 3 Ex 242; 154 ER 833: It may be stated as a general rule that those things are necessary for the doing of a thing which are reasonably required or which are legally ancilliary to its accomplishment. I do not consider any closer definition than that should be attempted. The word speaks for itself.

[60] This dicta was cited with approval by the Full Court of the Federal Court in Proprietors Unit Plan No 52 v Gold (1993) 44 FCR 123; 116 ALR 638 at 640-1 in relation to the ACT legislation governing unit titles which authorised the strata company to recover expenditure for works that had been ' rendered necessary ' in certain nominated circumstances.

[61] The word ' incidental ' means casually met with, or occurring in fortuitous or subordinate conjunction with, something else. In judging this, regard must be had to the whole of the arrangements and to the intention of the parties: Rothmans of Pall Mall (Aust) Ltd v Australian Broadcasting Tribunal (1985) 5 FCR 330 at 347; 58 ALR 675.

38 The "incidental" power in s 50(1)(e) of the Interpretation Act 1987 extends the scope of the functions to which it is incidental. In Director of Public Prosecutions v Australian Broadcasting Corporation (1987) 7 NSWLR 588 at 597A it was held that "It is the essence of an incidental power - whether implied or expressly conferred - that it extends the scope of the power to which it is incidental": In that case the Court of Appeal was of the view that a statutory corporation having power to litigate has an incidental power to bring proceedings for contempt in order to protect the integrity of litigation to which it is a party: at 595G - 596B. In Burton v Honan (1952) 86 CLR 169, Dixon J (with whom the other members of the High Court agreed) considered the connection between a law and the incidental legislative power in s 51(xxxix) of the Commonwealth Constitution. His Honour held that a reasonable connection must be shown before a law can be sustained as incidental to the relevant power, and that matters of incidental powers are largely questions of degree (at 179). The Macquarie Dictionary (3rd ed.) definitions of "incidental to" are: "liable to happen in connection with; naturally appertaining to". A power to do something that is "convenient" to a function is, I think, a wider power than a power to do something which is "incidental" to a function. Relevant definitions of "convenient" are "agreeable to the needs or purpose": Macquarie Dictionary (3rd ed.); and "serving one's interests": Australian Oxford Dictionary.

39 An illustration of things that are necessary or convenient to a statutory corporation's functions is provided by Kathleen Investments (Australia) Ltd v Australian Atomic Energy Commission (1977) 139 CLR 117. In that case, the Atomic Energy Commission had power under s 18 of its Act "to do all things that [were] necessary or convenient to be done for or in connexion with the performance of its functions". One of the Commission's functions was "to undertake, or arrange for or encourage other authorities or persons to undertake, exploration for, and mining and treatment of, uranium and minerals found in association with uranium". The Commission acquired shares in a company whose objects permitted it to engage in exploring for, mining and treating uranium and minerals of all kinds. A shareholder of the company brought an action against the Commission. The statement of claim alleged that the Commission was not authorised to hold shares in the company. The Commission demurred. The High Court held that the Commission had power to apply for and take up shares in a company if it was necessary or convenient to do so for the performance of its functions under the Act. The question whether that requirement had been satisfied in a particular case was one of fact which could not be determined adversely to the Commission merely on the basis of the objects in the company's memorandum. Hence, the demurrer was allowed but the plaintiff was given leave to amend its statement of claim. Mason J said that it was relevant to ascertain whether, when the Commission subscribed for shares, the company was carrying on any activities other than uranium mining in order to determine whether the transaction fell within the Commission's function. Even if the company was carrying on some other activity, it may be possible to conclude that the investment was intra vires (at 154). Gibbs J said that the Commission did not have an unfettered power to take up shares in any company no matter what the circumstances. The Commission could use the capacity it had to acquire property only for the purpose of carrying out the functions which the Act cast upon it. If the Commission acquired shares in a company for a purpose which had no connexion with its functions, its action would be unauthorised (at 138).

40 Another illustration of the scope of a "necessary or convenient" power appears in Botany Municipal Council v Federal Airports Corporation (1992) 175 CLR 453. There, the respondent, a statutory corporation, proposed to dredge Botany Bay to get fill for use in making a third runway at Sydney Airport. The dredging would affect the environment. The applicant council opposed the dredging and argued that the respondent's statutory functions did not include the dredging work. Those functions included "carrying out necessary or desirable extensions to, or alterations of, Federal airports." The respondent corporation also had a power under s 9(1) of the Federal Airports Corporation Act 1986 (Cth) to do all things "necessary or convenient to be done for or in connection with the performance of its functions". The High Court held that the project was expressly within power and that the dredging work came within the "necessary or convenient" power. A further illustration of the "necessary or convenient power" is Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672. In that case, a statutory corporation's loan on terms requiring the borrower to re-lend the same amount to a producer of Australian films to assist in the production of a film was held to be one which was "necessary or convenient to be done for or in connexion with the performance of its functions", namely, "to encourage the making of Australian films."

41 There have been cases where a statutory authority has been found not to have power to bring specific legal proceedings: Byrnes v The Queen (1999) 199 CLR 1 and Bond v The Queen (2000) 201 CLR 213. They are distinguishable. They were cases where there was specific statutory authority to bring particular proceedings. This was held not to extend to power to bring other proceedings. These cases were distinguished in Australian Securities and Investments Commission v Vis (2000) 158 FLR 56 at 73 by the Full Court of the Supreme Court of South Australia. The expansive effect of an "incidental" power is evident from the Full Court's dictum that: "In the present case, the legislation is relevantly different. The power to perform incidental functions, found in s 11(4) of the Australian Securities and Investments Commission Act, was not available in Byrnes or in Bond."

The Functions, Role and Objectives of the Authority 42 I have earlier identified that the Authority has such functions as are necessary or convenient to carry out its concurrence role: SWCM Act s 17, Wollondilly LEP cl 17, EPA Act ss 30, 79B(8). In addition, the Authority has the functions, role and objectives conferred by the following provisions of the SWCM Act: 3 Definitions In this Act: function includes a power, authority or duty. operating licence means the operating licence granted under section 25 or any renewal of it, and as in force for the time being.

13 Role The role of the Authority is, subject to and in accordance with this Act: (a) to manage and protect the catchment areas and catchment infrastructure works, and (b) to be a supplier of bulk water, and (c) to regulate certain activities within or affecting the outer catchment area as well as the inner catchment area.

14 Objectives (1) The principal objectives of the Authority are as follows: (a) to ensure that the catchment areas and the catchment infrastructure works are managed and protected so as to promote water quality, the protection of public health and public safety, and the protection of the environment, (b) to ensure that water supplied by it complies with appropriate standards of quality, (c) where its activities affect the environment, to conduct its operations in compliance with the principles of ecologically sustainable development contained in section 6 (2) of the Protection of the Environment Administration Act 1991 , (d) to manage the Authority's catchment infrastructure works efficiently and economically and in accordance with sound commercial principles. (2) In implementing its principal objectives, the Authority has the following special objectives: (a) to minimise risks to human health, (b) to prevent the degradation of the environment…

15 General functions (1) The Authority has and may exercise the functions conferred or imposed on it by or under this or any other Act, to the extent to which the operating licence enables the Authority to exercise those functions. (2) The Authority has the primary function of protecting the quality and quantity of water in catchment areas…

16 Specific functions (1) The Authority has the following specific functions: (a) to supply water to the Sydney Water Corporation, (b) to supply water to water supply authorities, prescribed local councils or prescribed county councils, (c) to supply water to other persons and bodies, but under terms and conditions that prevent the person or body concerned from supplying the water for consumption by others within the State unless the person or body is authorised to do so by or under an Act, (c1) to generate and supply hydro-electricity and undertake any associated activities, whether on the Authority's own account or with others, (d) to manage and protect the catchment areas and the catchment infrastructure works vested in or under the control of the Authority, (e) to protect and enhance the quality of water controlled by the Authority, (f) to undertake research on catchments generally, and in particular on the health of the Authority's catchment areas, (g) to undertake an educative role within the community…

22 Arrangements with Sydney Water Corporation (1) The Authority is required to enter into arrangements with the Sydney Water Corporation regarding the supply of water by the Authority to the Corporation…

43 In relation to the Authority's functions of supplying water to, and entering into arrangements with, the Sydney Water Corporation (ss 16(1)(a) and 22), the Sydney Water Act 1994 (NSW) ss 5 and 12 empower the Sydney Water Corporation to construct, operate, manage and maintain systems and services for the supply of water.

44 The Authority has additional specific law compliance functions conferred on it by regulation: s 19(1) and 2 SWCM Act. The relevant regulation is the Sydney Water Catchment Management (Environment Protection) Regulation 2001. However, the enforcement functions conferred by that regulation are confined to enforcement functions under the Protection of the Environment Operations Act 1997. By Division 2 of Part 8.2 of the latter Act, the power to institute proceedings for offences under that Act is confined to the Environment Protection Authority, "the appropriate regulatory authority" (identified in s 6) and authorities specified in s 218. Thus, the "right to institute" proceedings for offences under the Protection of the Environment Operations Act is, within the meaning of s 14 of the Criminal Procedure Act, "expressly conferred by that Act on a specified… class of persons". In contrast, there is no confinement of the right to institute proceedings for offences under section 125 of the EPA Act, with which the present proceedings are concerned. By s 19(4) of the SWCM Act, s 19 does not affect the generality of any other provision of any other Act so far as it confers or imposes functions on the Authority. This, I think, includes any "necessary or incidental" function conferred by s 50(1)(e) of the Interpretation Act.

45 The Governor may grant an operating licence to enable the Authority to provide, construct, operate, manage or maintain systems or services for the purpose of the exercise of any of its functions in accordance with that Act: s 25 SWCM Act. The Authority's licence under s 25 relevantly provides: 2.1 Objectives of this Licence 2.1.1 The objectives of this Licence are to enable and require the Authority to: (a) manage and protect the Catchment Area and Catchment Infrastructure Works; (b) supply Bulk water; and (c) regulate certain activities within the Catchment Area. 2.1.2 Consistent with the objectives in clause 2.1.1, this Licence requires the Authority to: (a) meet the objectives and other requirements imposed on it in the Act; (b) comply with the quality and performance standards in this Licence; and

1. be subject to the Annual audit of compliance with this Licence.

3.2 Responsibility of the Authority under the Sydney Water Catchment Management Act 3.2.1 The Authority acknowledges that its principal objectives under section 14(1) of the Act are: (a) to ensure that the Catchment Area and the Catchment Infrastructure Works are managed and protected so as to promote water quality, the protection of public health and public safety, and the protection of the environment; … 3.2.2 The Authority acknowledges that its special objectives under section 14(2) of the Act are: (a) to minimise risks to human health, and (b) to prevent the degradation of the environment.

4.1 What the Licence authorises and regulates 4.1.1 For the purpose of section 15(1) of the Act, this Licence enables the Authority to exercise any function conferred or imposed on it by or under the Act or any other Act, regardless of whether any such function is conferred or imposed on the Authority by or under the Act or any other Act before or after the Commencement Date… 4.2 Powers not limited This Licence does not restrict the Authority's power to carry out any functions conferred or imposed under any applicable law.

7.1 Authority to Manage and Protect 7.1.1 The Authority must manage and protect the Catchment Area to the full extent to which it is empowered to do so…

46 This prosecution is brought for an offence against the EPA Act, the objectives of which are set out in s 5(a) and include: (a) to encourage: (i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment, (ii) the promotion and co-ordination of the orderly and economic use and development of land, … (iv) the provision of land for public purposes, … (vi) the protection of the environment, including the protection and conservation of native animals and plants, including threatened species, populations and ecological communities, and their habitats, and (vii) ecologically sustainable development"…

Decision 47 The decision whether the Authority has power to institute this prosecution for an offence against the EPA Act depends upon whether the prosecution comes within s 50(1)(e) of the Interpretation Act 1987 or s 17 of the SWCM Act. The inquiry under s 50(1)(e) is whether the prosecution is "necessary for, or incidental to, the exercise" of the Authority's functions. The inquiry under s 17 is whether the prosecution is "necessary or convenient to carry out" the Authority's concurrence role.

48 The Authority has a role, functions and objectives which are vital to the health of the public and the protection of the environment. Its "functions" are defined broadly to include any power, authority or duty: SWCM Act s 3. Its role includes managing and protecting the catchment areas, supplying bulk water and regulating certain activities within or affecting the catchment area: s 13. Its principal objectives include ensuring that the catchment areas are managed and protected so as to promote water quality, the protection of public health and public safety, and the protection of the environment: s 14(1). In implementing its principal objectives, its special objectives are to minimise risks to human health and to prevent the degradation of the environment: s 14(2). Its primary function is to protect the quality and quantity of water in catchment areas: s 15(2). Its specific functions include to supply water to the Sydney Water Corporation, water supply authorities and prescribed councils; to manage and protect the catchment areas in or under its control; and to protect and enhance the quality of water which it controls: s 16(1). Under its statutory licence it is obliged to protect the catchment area to the full extent to which it is empowered to do so: cl 7.1.1.

49 The Authority also has the concurrence function of deciding whether to concur in a council's consent to the development of land in a special area: s 17, Wollondilly LEP cl 17, EPA Act ss 30 and 79B(8). In deciding whether to concur, the Authority is obliged to take into consideration the likelihood of waters in the special area concerned being polluted as a result of the carrying out of the proposed development: cl 17(2) Wollondilly LEP. There is a close connection between the concurrence function and the offence with which the defendant has been charged, for both have their source in the EPA Act. Additional functions "necessary or convenient" to carry out the concurrence function have their source in the SWCM Act s 17.

50 There is harmony between the environment protection functions of the Authority under the SWCM Act and the environment protection objects set out above in s 5 of the EPA Act, under which the prosecution is brought.

51 It is conceded, for the purposes of the present application, that the development had an adverse environmental impact on the catchment and the potential to adversely affect the quality of the water in the catchment. The land on which the offence is alleged to have occurred was a "special area", which means that the Minister has certified that the declaration was necessary for one or both of the purposes of (a) protecting the quality of stored waters, whether intended for use for drinking or other purposes, and (b) maintaining the ecological integrity of the land in a manner consistent with the Authority's objectives: s 44(2).

52 The Authority's function of concurring in a development consent is not only an important function of itself, but also an important weapon in its armoury for guarding its functions, which are aimed at protecting the environment, public health and public safety. There would be a grave risk of the concurrence function being set at nought generally if the Authority was powerless to institute a prosecution under the EPA Act for carrying out development without consent, in a special area, that has an adverse environmental impact on the catchment and the potential to adversely affect the quality of the water in the catchment. The only other obvious statutory candidate to institute such a prosecution would be the council itself. Although the Authority could request the council to institute a prosecution such as this, the only way in which it can ensure the integrity of its functions, is by having the power itself to institute such a prosecution.

53 Accordingly, in my opinion, this prosecution is necessary for the exercise of the Authority's functions, in the sense of being appropriate or reasonably required. Alternatively, the prosecution has a reasonable connection with, and is incidental to, its functions. Thus, in my opinion, the Authority has power under s 50(1)(e) of the Interpretation Act 1987 to institute the prosecution.

54 Further, in my opinion, the prosecution is necessary or convenient, within the meaning of s 17(1) of the SWCM Act, to carry out the Authority's concurrence role. The defendant fastened on the words in s 17(1) which speak of functions necessary or convenient 'to carry out' any concurrence role, and submitted in effect that the Authority has no concurrence role to carry out unless a development application is made. In my view, this is an unduly narrow construction. It is also a construction which does not promote the purpose or object underlying the legislative conferral of the concurrence role. That is because it would deprive the Authority of the weapon of prosecution which guards that role against those who would unlawfully carry out developments without consent where the Authority's concurrence is required. A construction that promotes the purpose or object underlying an Act must be preferred to a construction that would not do so: s 33 Interpretation Act 1987. If, with impunity, developers unlawfully carry out development without consent, the Authority is effectively deprived of the opportunity to exercise its legislatively conferred concurrence role. In such circumstances, the Authority cannot effectively carry out its concurrence role unless it has the power to seek legal sanctions, including by prosecution, against developers who unlawfully fail to seek development consent. One of the objects of criminal sanctions is deterrence. Penalties should deter others from unlawfully failing to obtain development consent and thus enable the Authority to carry out its concurrence role generally. Thus, in my view, this prosecution is necessary or convenient to carry out the Authority's concurrence role.

Orders 55 For these reasons, I make the following orders: 1. The defendant's notice of motion dated 24 March 2006 is dismissed. 2. The defendant is to pay the prosecutor's costs of the notice of motion as agreed or assessed. 3. The exhibit may be returned.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.