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Court of Criminal Appeal 21 September 2018

Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd

[2018] NSWCCA 202

Other
ENVIRONMENT AND PLANNING CONSENT CONDITIONS CONSTRUCTION OFFENCES PROSECUTIONS

Citation: Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2018] NSWCCA 202
Court: Court of Criminal Appeal, New South Wales
Date: 21 September 2018
Judges: Bathurst CJ; Fullerton J; Campbell J

Background

A regional council prosecuted an asphalt batching plant operator in the Land and Environment Court for breaching conditions of a development consent. The consent permitted the operator to run a temporary mobile asphalt batching plant on a property at Rock Flat, New South Wales. Three charges were laid under s 125(1) of the Environmental Planning and Assessment Act 1979 (NSW), each alleging the operator carried out development otherwise than in accordance with that consent.

The charges covered a period from 20 January 2015 to 18 March 2015. Each charge alleged that the operator had "engaged in a course of conduct" during that entire period: one by exceeding a daily production capacity of 150 tonnes (said to breach Condition 1 of the consent, which incorporated a Statement of Environmental Effects), another by producing more than 150 tonnes per day (said to breach Condition 4), and a third by permitting more than 12 trucks per day to access or exit the site (said to breach Condition 6).

The operator moved to strike out all three charges. The primary judge struck out the First Charge on the basis it disclosed no offence known to law, and found the Second and Third Charges bad for duplicity (meaning each charge improperly bundled multiple separate offences into one). The primary judge then submitted three questions of law to the Court of Criminal Appeal for determination.

  • Whether Condition 1 of the development consent, which required development to be carried out substantially in accordance with the Statement of Environmental Effects, itself imposed a maximum daily production limit of 150 tonnes, such that breaching that limit was an offence known to law.
  • Whether the Second Charge (alleging breach of Condition 4's 150-tonne daily production limit over a multi-week period) was bad for duplicity.
  • Whether the Third Charge (alleging breach of Condition 6's 12-truck daily access limit over a multi-week period) was bad for duplicity.

Decision

The First Charge: No offence known to law

Bathurst CJ, with Fullerton and Campbell JJ agreeing, held that the primary judge was correct to strike out the First Charge. On its proper construction, Condition 1 required the development to be carried out substantially in accordance with the Statement of Environmental Effects, but that statement described the plant's production capacity rather than imposing an enforceable limit on actual daily output. The obligation not to exceed 150 tonnes per day was found only in Condition 4. Because Condition 1 did not itself impose that limit, a charge framed as a breach of Condition 1 for exceeding 150 tonnes per day did not allege an offence known to law.

The Second and Third Charges: Bad for duplicity

The Court upheld the primary judge's finding that both charges were bad for duplicity. The rule against duplicity requires that each charge contain only a single offence. Here, conditions 4 and 6 each imposed a daily limit, meaning a fresh contravention arose on every day the limit was exceeded. By framing each charge as a "course of conduct" spanning nearly two months, the prosecutor had impermissibly rolled multiple separate daily offences into a single charge.

Bathurst CJ illustrated the problem in practical terms: the prosecutor indicated it would seek to prove contraventions on each day within the period, but as charged, the offence would be made out even if a contravention was proved on only one day. That possibility confirmed the charge encompassed multiple offences rather than one. The Court answered all three submitted questions in the negative, affirming the primary judge's reasoning in each instance.

Orders Made

  • Question 1 answered: No, the primary judge did not err in striking out the First Charge.
  • Question 2 answered: No, the primary judge did not err in finding the Second Charge bad for duplicity.
  • Question 3 answered: No, the primary judge did not err in finding the Third Charge bad for duplicity.
  • The application was remitted to the Land and Environment Court to be dealt with according to law.
  • The applicant (the Council) was ordered to pay the respondent's costs of the proceedings in the Court of Criminal Appeal.

Key Takeaways

  • A development consent condition requiring compliance with a Statement of Environmental Effects does not automatically convert every statement in that document into an independently enforceable obligation. The Court of Criminal Appeal confirmed that the content of the incorporated document must be examined to determine whether it imposes an operative limit or merely describes characteristics of the approved development.

  • Where a development consent condition imposes a limit expressed as a daily maximum (such as "not more than 150 tonnes per day"), a separate contravention occurs on each day the limit is exceeded. Framing such contraventions as a single "course of conduct" over a multi-week period renders the charge duplicitous.

  • The duplicity rule, as applied here, requires prosecutors bringing charges for breach of conditions containing recurring daily limits to specify each individual day of alleged contravention, rather than aggregating conduct over a period into one omnibus charge.

  • In dismissing all three questions on appeal, the Court confirmed that the primary judge's analysis in the Land and Environment Court correctly applied both the principles of statutory construction and the rule against duplicity to charges under the Environmental Planning and Assessment Act 1979.

  • No error was established in any of the primary judge's rulings, and the costs order against the Council reflected the outcome across all three questions.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5AE
- Environmental Planning and Assessment Act 1979 (NSW), ss 76A(1)(b), 125(1)
- Environmental Planning and Assessment Regulation 2000 (NSW)
- Rivers and Foreshores Improvement Act 1948 (NSW)

Cases
- Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd [2017] NSWCA 263
- CSR Ltd v Environmental Protection Authority [2000] NSWCCA 373
- Director of Public Prosecutions v Merriman [1973] AC 584
- Director-General of Department of Land and Water Conservation v Greentree (2003) 140 A Crim R 25; [2003] NSWCCA 31
- Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125; [2013] NSWCCA 204
- Ex parte Polley; Re McLennan (1947) 47 SR (NSW) 391
- Hakim v Waterways Authority (NSW) [2006] NSWCCA 376
- Hannes v Director of Public Prosecutions (Cth) (No 2) [2006] NSWCCA 373
- John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508; [1987] HCA 42
- Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77
- Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
- R v Hamzy (1994) 74 A Crim R 341
- R v Moussad [1999] NSWCCA 337
- S v The Queen (1989) 168 CLR 266; [1989] HCA 66
- Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26
- Westfield Management Ltd v Perpetual Trustee Company Ltd [2006] NSWCA 245