Secretary, Department of Planning and Environment v Sell & Parker Pty Ltd (No 2) [2019] NSWLEC 73

Secretary, Department of Planning and Environment v Sell & Parker Pty Ltd (No 2) [2019] NSWLEC 73

Leave was granted because the proposed Further Amended Summons did not raise a new charge. The Amended Summons had always pleaded a breach of the 90,000 tonne annual limit, although it was rendered duplicitous by references to alleged weekly pro-rata breaches in Schedule A. Removing those references and clarifying the annual-limit allegation did not alter the essential nature of the offence under s 125(1) of the Environmental Planning and Assessment Act 1979 (NSW) for carrying out development otherwise than in accordance with consent contrary to s 76A(1)(b). No injustice would result, as the proceedings were at an early stage, no evidence beyond the prosecutor's affidavits or expert...

Jurisdiction
Australia
Judgment Date
04 June 2019
Procedural Posture
Class 5 Criminal Proceedings Alleging Breach of Conditions of Development Consent / Notice of Motion by the Prosecutor Seeking Leave to Further Amend the Amended Summons After an Earlier Finding That the Summons Was Duplicitous
Outcome
Leave granted to further amend the Amended Summons; costs reserved.
Legal Topics
['amendment of Summons' 'duplicity' 'development Consent Conditions' 'statutory Limitation Period' 'class 5 Proceedings']
['planning and Environment' 'criminal Procedure' 'land and Environment Court Procedure'] ['amendment of Summons' 'duplicity' 'development Consent Conditions' 'statutory Limitation Period' 'class 5 Proceedings']

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Procedural Posture

Class 5 Criminal Proceedings Alleging Breach of Conditions of Development Consent / Notice of Motion by the Prosecutor Seeking Leave to Further Amend the Amended Summons After an Earlier Finding That the Summons Was Duplicitous

Legal Issues

  1. 1 ['Whether leave should be granted to further amend the Amended Summons in respect of the 2016 Charge.' 'Whether the proposed amendment would create a new charge outside the prescribed statutory limitation period.' 'Whether the Amended Summons disclosed no offence whatsoever or could be cured by amendment.' 'Whether any injustice would result from permitting the amendment.']

Ratio Decidendi

Leave was granted because the proposed Further Amended Summons did not raise a new charge. The Amended Summons had always pleaded a breach of the 90,000 tonne annual limit, although it was rendered duplicitous by references to alleged weekly pro-rata breaches in Schedule A. Removing those references and clarifying the annual-limit allegation did not alter the essential nature of the offence under s 125(1) of the Environmental Planning and Assessment Act 1979 (NSW) for carrying out development otherwise than in accordance with consent contrary to s 76A(1)(b). No injustice would result, as the proceedings were at an early stage, no evidence beyond the prosecutor's affidavits or expert...

Court Disposition

Leave granted to further amend the Amended Summons; costs reserved.

Orders

  • ['The prosecutor is granted leave to further amend the Amended Summons filed 1 November 2018 in the form of annexure "C" to the affidavit of Alexander Charles Rollason affirmed 18 April 2019.' 'Costs are reserved.']