Secretary, Department of Planning, Housing and Infrastructure v CEAL Ltd (t/as Multiquip Quarries) [2024] NSWLEC 89

Secretary, Department of Planning, Housing and Infrastructure v CEAL Ltd (t/as Multiquip Quarries) [2024] NSWLEC 89

The amended summons was not duplicitous. Properly characterised, the charge alleged that over a single period the Defendant carried out quarry development otherwise than in accordance with the development consent by using a slurry management system located west of the acoustic bund wall. The three silt cells and two oversize management areas were in close physical proximity, were interrelated parts of that single system, and supported the sand production activity to which the quarry operation was directed. As a matter of fact and degree, the separate existence of the five physical features did not make their use separate offences, so no election was required.

Jurisdiction
Australia
Judgment Date
22 August 2024
Procedural Posture
Class 5 Criminal Prosecution Alleging an Offence Against S 9.51 of the Environment Planning and Assessment Act 1979 (nsw) by Carrying Out Development Other Than in Accordance With Development Consent Conditions, Contrary to S 4.2 / Procedural Ruling on the Defendant's Notice of Motion Dated 14 May 2024 Alleging Duplicity in the Amended Summons and on the Prosecutor's Request for Leave to Withdraw Summonses in Proceedings 2023/00451488 and 2023/00451489
Outcome
The Prosecutor was granted leave to withdraw the summonses in proceedings 2023/00451488 and 2023/00451489, and the Defendant's notice of motion in proceeding 2023/00451490 was dismissed.
Legal Topics
['duplicity' 'development Consent Conditions' 'carrying Out Development Otherwise Than in Accordance With Consent' 'amended Summons' 'election by Prosecutor']
['criminal Law' 'environmental Planning Law' 'practice and Procedure'] ['duplicity' 'development Consent Conditions' 'carrying Out Development Otherwise Than in Accordance With Consent' 'amended Summons' 'election by Prosecutor']

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Procedural Posture

Class 5 Criminal Prosecution Alleging an Offence Against S 9.51 of the Environment Planning and Assessment Act 1979 (nsw) by Carrying Out Development Other Than in Accordance With Development Consent Conditions, Contrary to S 4.2 / Procedural Ruling on the Defendant's Notice of Motion Dated 14 May 2024 Alleging Duplicity in the Amended Summons and on the Prosecutor's Request for Leave to Withdraw Summonses in Proceedings 2023/00451488 and 2023/00451489

Legal Issues

  1. 1 ['Whether the amended summons was patently duplicitous because it identified use of silt cells 1, 2 and 3a and silt and oversize management areas 1 and 2 to the west of the acoustic bund wall.' 'Whether the Prosecutor should be put to an election so that the amended summons alleged only one offence.']

Ratio Decidendi

The amended summons was not duplicitous. Properly characterised, the charge alleged that over a single period the Defendant carried out quarry development otherwise than in accordance with the development consent by using a slurry management system located west of the acoustic bund wall. The three silt cells and two oversize management areas were in close physical proximity, were interrelated parts of that single system, and supported the sand production activity to which the quarry operation was directed. As a matter of fact and degree, the separate existence of the five physical features did not make their use separate offences, so no election was required.

Court Disposition

The Prosecutor was granted leave to withdraw the summonses in proceedings 2023/00451488 and 2023/00451489, and the Defendant's notice of motion in proceeding 2023/00451490 was dismissed.

Orders

  • ['Leave be granted to the Prosecutor to withdraw each of the summonses in proceedings 2023/00451488 and 2023/00451489.' "In proceeding 2023/00451490 the Defendant's notice of motion dated 14 May 2024 is dismissed."]