Citation: Leda Manorstead Pty Ltd v Secretary, Department of Planning and Environment [2022] NSWCCA 220
Court: NSW Court of Criminal Appeal
Date: 10 October 2022
Judge(s): Brereton JA; Preston CJ of LEC; Chen J
Background
The appellant, a property developer, held a Project Approval under Part 3A of the Environmental Planning and Assessment Act 1979 (NSW) for a development that involved bulk earthworks across several precincts of a large site. The Project Approval included Condition 21A, which required that bulk earthworks be limited to a maximum exposed disturbed area of 5 hectares (later increased to 5.59 hectares) at any one time.
The appellant was convicted by the Land and Environment Court of three offences under s 125(1) of the EP&A Act for carrying out development otherwise than in accordance with the Project Approval. The primary judge found that the maximum exposed disturbed area had been substantially exceeded across the relevant precincts. The appellant challenged two of those three convictions on appeal, arguing that the primary judge had misconstrued the conditions.
Legal Issues
- Whether the primary judge correctly construed "the site" in Condition 21A(b) as referring to the entire project site, rather than only the borrow areas within the specified precincts.
- Whether areas authorised for disturbance under other development consents should be excluded from the calculation of the "maximum exposed disturbed area."
- Whether areas disturbed by filling activities (as distinct from cutting activities) should be included in that calculation.
- Whether any error in construction of Condition 21A resulted in a substantial miscarriage of justice, warranting the convictions being set aside.
Decision
Construction of "the site"
The Court of Criminal Appeal held that the primary judge erred in construing "the site" in Condition 21A(b) as referring to the entire project site. On a natural reading of the condition, sub-paragraph (b)'s reference to "bulk earthworks for the site" connects back to sub-paragraph (a)'s reference to "bulk earthworks in the borrow areas within Precincts 1, 2, 9 and 11." Accordingly, "the site" in Condition 21A(b) means those borrow areas specifically, not the project site at large. This was also the construction most favourable to the appellant, consistent with the principle applicable to the interpretation of penal statutes.
Other consents and the calculation of disturbed area
The Court rejected the argument that areas also authorised under other development consents should be excluded from the maximum exposed disturbed area calculation. Preston CJ of LEC held that Condition 21A(b) requires the achievement of a factual state of affairs: that the disturbed area does not exceed 5.59 hectares at any time. The existence of another consent creating only the potential to disturb an area cannot exclude that area from the calculation. What matters is the actual existence and extent of disturbance, not its source.
No substantial miscarriage of justice
Despite finding an error in the primary judge's construction of "the site," the Court unanimously dismissed the appeal. The unchallenged evidence established that the disturbed areas within the borrow areas in Precincts 1 and 2 alone vastly exceeded 5.59 hectares across the relevant charge periods, through cutting activities carried out in pursuance of the Project Approval. The Court was satisfied that no substantial miscarriage of justice had occurred, and that the convictions were therefore sound.
Orders Made
- The appeal is dismissed.
- No order as to costs (pursuant to s 17(1) of the Criminal Appeal Act 1912).
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a conviction need not be set aside merely because the trial judge erred in construing a condition of a development approval, provided the error caused no substantial miscarriage of justice and the facts still establish the contravention.
- The Court clarified that a condition limiting the "maximum exposed disturbed area" operates by reference to a factual state of affairs: the actual area disturbed at any given time, regardless of why or how that disturbance came about.
- The mere existence of another development consent authorising earthworks in the same area does not reduce or qualify the disturbed area to be counted under a separate approval's conditions; it creates only a potential to disturb, which is insufficient to affect the calculation.
- Where a condition is susceptible to multiple constructions, the construction most favourable to the defendant is to be adopted in proceedings of a penal character, but here even that construction still supported the finding of contravention.
- Conditions in a development approval must be read as a whole, with cross-references between sub-paragraphs informing the meaning of defined terms used throughout the condition.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW), ss 5AA, 5AB, 6(1), 17(1)
- Environmental Planning and Assessment Act 1979 (NSW), ss 75D, 75E, 75O, 75P, 75W, 125, Part 3A
- Interpretation Act 1987 (NSW), s 6
Cases
- Gilmour v Environment Protection Authority; Tableland Topdressing Pty Ltd v Environment Protection Authority (2002) 55 NSWLR 593; [2002] NSWCCA 399
- Geitonia Pty Ltd v Inner West Council; Gertos v Inner West Council [2016] NSWCCA 186
- Beckwith v The Queen (1976) 135 CLR 569
- Walker Corporation Pty Ltd v Director General, Department of Environment, Climate Change and Water (2012) 82 NSWLR 12; [2012] NSWCCA 210
- Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage (2013) 298 ALR 532; [2013] NSWCCA 114
- Grajewski v Director of Public Prosecutions (NSW) (2017) 270 A Crim R 33; [2017] NSWCCA 251
- North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468
- Director General, Department of Land and Water Conservation v Bailey (2003) 136 LGERA 242
- Waugh v Kippen (1986) 160 CLR 156
- 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685