Environment Protection Authority v McMurray [2024] NSWLEC 6

Environment Protection Authority v McMurray [2024] NSWLEC 6

Section 169 of the Protection of the Environment Operations Act 1997 (NSW) does not apply to council officers by reason of s 220(4) of the Local Government Act 1993 (NSW), as s 169 is not a law that applies 'to and in respect of' a corporation. The conjunctive meaning of the phrase in s 220(4) LG Act requires a law to apply both to and in respect of corporations to engage operation on councils, which is not the case for the special executive liability provision in s 169. Accordingly, the charge against the Respondent was unknown to law and a permanent stay of proceedings was properly ordered by the Local Court.

Jurisdiction
Australia
Judgment Date
07 February 2024
Procedural Posture
Criminal Appeal / Appeal From Permanent Stay of Summary Prosecution (question of Law)
Outcome
Appeal dismissed
Legal Topics
['liability of Directors and Officers' 'executive Liability' 'statutory Construction' 'application of Environmental Offences to Councils']
['environmental Law' 'criminal Law' 'local Government Law' 'statutory Interpretation'] ['liability of Directors and Officers' 'executive Liability' 'statutory Construction' 'application of Environmental Offences to Councils']

Case Brief

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Procedural Posture

Criminal Appeal / Appeal From Permanent Stay of Summary Prosecution (question of Law)

Legal Issues

  1. 1 ['Whether s 169(1) of the Protection of the Environment Operations Act 1997 (NSW) applies to officers of a council by reason of s 220(4) of the Local Government Act 1993 (NSW)' 'Whether a permanent stay of proceedings was justified because the charge was unavailable at law']

Ratio Decidendi

Section 169 of the Protection of the Environment Operations Act 1997 (NSW) does not apply to council officers by reason of s 220(4) of the Local Government Act 1993 (NSW), as s 169 is not a law that applies 'to and in respect of' a corporation. The conjunctive meaning of the phrase in s 220(4) LG Act requires a law to apply both to and in respect of corporations to engage operation on councils, which is not the case for the special executive liability provision in s 169. Accordingly, the charge against the Respondent was unknown to law and a permanent stay of proceedings was properly ordered by the Local Court.

Court Disposition

Appeal dismissed

Orders

  • ['The Summons commencing an appeal filed on 8 June 2023 is dismissed.' 'The exhibits are returned.' 'No order as to costs of the appeal.' 'No order for costs in the Local Court proceedings.']