Secretary, Department of Planning and Environment v Sell & Parker Pty Ltd [2019] NSWLEC 48

Secretary, Department of Planning and Environment v Sell & Parker Pty Ltd [2019] NSWLEC 48

The formulation of each of the amended summonses is duplicitous because, objectively construed, they allege multiple breaches of the pro-rata weekly limit for each relevant week, rather than a single breach of an annual limit, such that Sell & Parker is not sufficiently apprised of the particular offences it is called upon to answer and is entitled to know these particulars for the purpose of fairness.

Parties
Prosecutor: Secretary, Department of Planning and Environment; Defendant: Sell & Parker Pty Ltd
Jurisdiction
Australia
Judgment Date
12 April 2019
Procedural Posture
Criminal / Interlocutory Application Motion to Strike Out
Outcome
Prosecutor given leave to seek amendment; motions not finally determined, costs reserved.
Legal Topics
Rule Against Duplicity, Development Consent Conditions, Practice and Procedure in Environmental Offences, Amendment of Criminal Pleadings
Environmental Law Criminal Procedure Rule Against Duplicity Development Consent Conditions Practice and Procedure in Environmental Offences Amendment of Criminal Pleadings

Case Brief

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Parties

Secretary, Department of Planning and Environment

Prosecutor

Sell & Parker Pty Ltd

Defendant

Procedural Posture

Criminal / Interlocutory Application Motion to Strike Out

Legal Issues

  1. 1 Whether the amended summonses are duplicitous
  2. 2 How offences under s 76A(1)(b) Environmental Planning and Assessment Act 1979 (NSW) should be pleaded
  3. 3 Whether breaches should be charged as multiple offences or as a continuing course of conduct

Ratio Decidendi

The formulation of each of the amended summonses is duplicitous because, objectively construed, they allege multiple breaches of the pro-rata weekly limit for each relevant week, rather than a single breach of an annual limit, such that Sell & Parker is not sufficiently apprised of the particular offences it is called upon to answer and is entitled to know these particulars for the purpose of fairness.

Court Disposition

Prosecutor given leave to seek amendment; motions not finally determined, costs reserved.

Orders

  • The prosecutor is to make any application to further amend the summons by filing any evidence and written submissions on or before 18 April 2019.
  • The defendant is to file any evidence and written submissions in reply to the prosecutor's application to further amend the summons on or before 29 April 2019.