Citation: Director General NSW Department of Industry and Investment v Mato Investments Pty Ltd [2014] NSWCCA 132
Court: NSW Court of Criminal Appeal
Date: 18 July 2014
Judges: Bathurst CJ (with Fullerton J and Bellew J agreeing)
Background
The prosecution arose from the removal of snags and large woody debris from the beds and banks of the Murray River and two of its anabranches during a defined charge period. The respondents, a company and its associated individual, faced charges under both the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) and the Fisheries Management Act 1994 (NSW) (Fisheries Act).
The EPA Act charge alleged development carried out in contravention of a development consent then "in force." The Fisheries Act charges alleged the respondents knowingly damaged the habitat of threatened and vulnerable fish species, including trout cod and silver perch, and an endangered ecological community in the lower Murray River catchment.
Both respondents were found not guilty at first instance. The primary judge stated a case to the Court of Criminal Appeal raising three questions about whether those findings were legally correct.
Legal Issues
- Whether it was open to the primary judge to find that no development consent was "in force" during the charge period, given an inconsistency between the consent as granted and the notice of that consent given to the applicant
- Whether the primary judge erred in declining to consider whether knowledge (an element of the Fisheries Act offences) could be conclusively presumed under s 220ZD(2)(a) of the Fisheries Act
- Whether, on the facts, knowledge was required to be conclusively presumed under either paragraph (a) or paragraph (b) of s 220ZD(2) of the Fisheries Act
Decision
Question 1: Was a development consent "in force"?
Under s 83(1)(a) of the EPA Act, a development consent only becomes effective and operative from the date endorsed on the notice given to the applicant in accordance with s 81(1). The Court found that, on the facts, a valid notice had not been given because the notice was inconsistent with the consent as granted. Applying the Project Blue Sky framework, the Court examined whether the notification requirements in s 81 and the Regulation were mandatory or directory, and concluded that compliance was necessary for the consent to be "in force." It was therefore open to the primary judge to find no consent was in force during the charge period, and the answer to Question 1 was yes.
Question 2: Did the primary judge err in not applying s 220ZD(2)(a)?
The primary judge had declined to consider whether knowledge could be conclusively presumed under s 220ZD(2)(a), which applies where an act or omission involves carrying out development for which consent was required. The Court agreed with the primary judge. Because the charges were particularised as alleging development carried out contrary to a consent (not development carried out without any consent), it was not open at the close of the trial to depart from those particulars. To permit an amendment at that stage would have required additional evidence and caused unfairness to the respondents. The answer to Question 2 was no, there was no error.
Question 3: Was conclusive presumption of knowledge available under s 220ZD(2)(b)?
Section 220ZD(2)(b) deems knowledge to exist where the act or omission constituted a failure to comply with a development consent. The Court held that this provision presupposes a development consent was in force at the relevant time. Since no valid notice had been given, no consent was in force, and s 220ZD(2)(b) could have no operation. The answer to Question 3 was also no.
Orders Made
• Question 1: Answered "Yes"
• Question 2: Answered "No"
• Question 3: Answered "No"
Key Takeaways
- Under s 83(1)(a) of the EPA Act, a development consent does not become effective until a valid notice is given to the applicant in accordance with s 81(1); an inconsistency between the consent and the notification can mean no consent is ever "in force."
- The Court of Criminal Appeal applied the Project Blue Sky framework to determine that the notification requirements in s 81 of the EPA Act and the supporting Regulation were mandatory in character, not merely directory, such that non-compliance prevented the consent from operating.
- Section 220ZD(2)(b) of the Fisheries Act, which deems a person to have known an area was habitat when an act or omission failed to comply with a development consent, only operates where a development consent is actually in force at the relevant time.
- Departing from the particulars in a summons at the conclusion of a trial raises serious procedural fairness concerns; where an amendment would require additional evidence to address, it will ordinarily be impermissible.
- The decision turns closely on its own facts, particularly the specific defect in the notification and the way in which the charges were particularised, and the Court's answers are confined to those circumstances.
Legislation and Cases Referenced
Legislation:
- Environmental Planning and Assessment Act 1979 (NSW), ss 76A, 78A, 79-79C, 80, 81, 82A, 83, 97, 101, 125
- Environmental Planning and Assessment Regulation 2000 (NSW), cll 100 and 102
- Fisheries Management Act 1994 (NSW), s 220ZD
- Criminal Appeal Act 1912 (NSW), s 5AE
- Local Government Act 1919 (NSW)
Cases:
- Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
- Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27
- Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378
- Pselletes v Randwick City Council [2009] NSWCA 262; (2009) 77 NSWLR 287
- Hopkins v Tweed Shire Council [2001] NSWLEC 75; (2001) 113 LGERA 406
- Scurr v Brisbane City Council [1973] HCA 39; (1973) 133 CLR 242
- Shanahan v Strathfield Municipal Council (1973) 2 NSWLR 740
- Environment Protection Authority v Sydney Water Corporation Limited (1997) 98 A Crim R 481