Land and Environment Court New South Wales

• Medium Neutral Citation: Ku-ring-gai Council v Steve Nolan Constructions Pty Ltd [2012] NSWLEC 258
• Hearing dates: 30 - 31 October, 2 November 2012
• Decision date: 22 November 2012
• Jurisdiction: Class 6
• Before: Pain J

Decision

The Court makes the following orders:

1. The appeal in matter number 60723 of 2012 against an order dismissing the charge relating to penalty infringement notice 3035809875 is dismissed.

2. The appeals in matter numbers 60721 and 60722 of 2012 against orders dismissing charges relating to penalty infringement notices 3035840180 and 3035809866 are upheld.

3. Matter numbers 60721 and 60722 of 2012 being penalty infringement notices 3035840180 and 3035809866 are remitted to the Local Court for determination in accordance with these reasons.

4. The appeal in matter number 60720 of 2012 against sentence for the charge relating to penalty infringement notice 3035798426 is dismissed.

5. Costs are reserved.

• Catchwords: APPEAL - appeals by prosecutor against dismissals of water pollution charges and carrying out work in breach of Environmental Planning and Assessment Act 1979 charge - sediment from building site - misconstruction of water pollution definition - no misconstruction of development consent condition - no denial of procedural fairness to prosecutor; APPEAL - appeal against sentence for offence of carrying out work in breach of Environmental Planning and Assessment Act 1979 - sediment from building site - whether s 10(1)(a) Crimes (Sentencing Procedure) Act 1999 should be applied with offence proved no conviction recorded
• Legislation Cited: Crimes (Appeal and Review) Act 2001 s 59, Div 2; Crimes (Sentencing Procedure) Act 1999 s 10, s 10A; Criminal Procedure Act 1986 s 194, s 202; Environmental Planning and Assessment Act 1979 s 76A, s 80, s 125; Justices Act 1902 s 80 (repealed); Protection of the Environment Operations Act 1997 s 120; Supreme Court Act 1970 s 69
• Cases Cited: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357; Blue Mountains City Council v Carlon [2008] NSWLEC 296; Cameron v Eurobodalla Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 3; Director of Public Prosecutions (NSW) v Elskaf [2012] NSWSC 21; Director of Public Prosecutions v Shannon Paul Wunderwald [2004] NSWSC 182; Ex parte Kelly; Re Teece [1966] 2 NSWR 674; Kendall Street Developments Pty Ltd v Byron Shire Council (No 2) [2004] NSWLEC 530; (2004) 138 LGERA 360; Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318; (2007) 178 A Crim R 220; McDonagh on behalf of Great Lakes Council v Birdon Dredging Pty Limited [1998] NSWLEC 102; (1998) 99 LGERA 198; Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132; (2002) 122 LGERA 89; R v JS [2007] NSWCCA 272; (2007) 175 A Crim R 108; R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159; Simmons v Director of Public Prosecutions [2009] NSWSC 1062; (2009) 75 NSWLR 453; R v Paris [2001] NSWCCA 83; Sutherland Shire Council v Upper Class Developments Pty Ltd [2003] NSWLEC 414; Thorneloe v Filipowski [2001] NSWCCA 213; (2001) 52 NSWLR 60; Williams v The Queen [1986] HCA 88; (1986) 161 CLR 278
• Texts Cited: DC Pearce and RS Geddes, Statutory Interpretation in Australia, 7th ed (2011) LexisNexis Butterworths
• Category: Principal judgment
• Parties: Ku-ring-gai Council (Appellant); Steve Nolan Constructions Pty Ltd (Respondent)
• Representation: Mr R O'Gorman-Hughes (Appellant); Mr I Hemmings (Respondent); HWL Ebsworth Lawyers (Appellant); Storey & Gough Lawyers (Respondent)
• File Number(s): 60720 - 60723 of 2012

Judgment

1 Ku-ring-gai Council, the Appellant, has appealed against the dismissal of two charges of pollute waters in breach of s 120 of the Protection of the Environment Operations Act 1997 (the PEO Act), and one charge of carrying out development not in accordance with a development consent in breach of s 76A and s 125 of the Environmental Planning and Assessment Act 1979 (the EPA Act) by a magistrate at Downing Centre Local Court on 15 June 2012. The charges are referred to by the last three digits of the penalty infringement notice (PIN) number as 866, 180, and 875 respectively. The Council also appeals against the sentence imposed for a further charge of development not in accordance with consent (charge 426) which the magistrate dismissed under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (the CSP Act). The offences occurred in December 2010 and January 2011. The Respondent is a building company working on a development site in Dumaresq Street, Gordon (the site) pursuant to a contract with the owner of the property. These appeals are enabled by the Crimes (Appeal and Review) Act 2001 (the Appeal Act).

Crimes (Appeal and Review) Act 2001

2 Division 2 "Appeals by prosecutors", Subdivision 1 "Making of appeals", s 42 "Appeals as of right" relevantly provides:

(2A) The prosecutor (other than the Director of Public Prosecutions or the Environment Protection Authority) may appeal to the Land and Environment Court against a sentence imposed by the Local Court in any summary proceedings in relation to an environmental offence, but only on a ground that involves a question of law alone.

(2B) The prosecutor (including the Director of Public Prosecutions or the Environment Protection Authority) may appeal to the Land and Environment Court against:

...

(b) an order made by the Local Court dismissing a matter the subject of any summary proceedings with respect to an environmental offence,

...

but only on a ground that involves a question of law alone.

3 Section 47 "Appeals against sentence to be by way of rehearing of evidence" provides:

(1) An appeal is to be dealt with by way of a rehearing of the evidence given in the original Local Court proceedings, although fresh evidence may be given in the appeal proceedings, but only by leave of the Land and Environment Court. ...

4 Section 48 "Determination of appeals" provides:

(1) The Land and Environment Court may determine an appeal against sentence:

(a) by setting aside the sentence, or

(b) by varying the sentence, or

(c) by dismissing the appeal.

...

(3) The Land and Environment Court may determine an appeal against an order referred to in section 42 (2B):

(a) by setting aside the order and making such other order as it thinks just, or

(b) by setting aside the order and remitting the matter to the original Local Court for redetermination in accordance with any directions of the Land and Environment Court, or

(c) by dismissing the appeal.

Dismissal of charges appeals (charges 866, 180, and 875)

5 The appeals against the dismissal of three charges by the magistrate are enabled by s 42(2B)(b), limited to grounds that raise questions of law alone. The evidence relied on by the Council was largely the transcript of the local court proceedings.

A. Misconstruction of definition of water pollution (charges 866, 180)

6 Water pollution is defined in the PEO Act as:

(a) placing in or on, or otherwise introducing into or onto, waters (whether through an act or omission) any matter, whether solid, liquid or gaseous, so that the physical, chemical or biological condition of the waters is changed, or

(b) placing in or on, or otherwise introducing into or onto, the waters (whether through an act or omission) any refuse, litter, debris or other matter, whether solid or liquid or gaseous, so that the change in the condition of the waters or the refuse, litter, debris or other matter, either alone or together with any other refuse, litter, debris or matter present in the waters makes, or is likely to make, the waters unclean, noxious, poisonous or impure, detrimental to the health, safety, welfare or property of persons, undrinkable for farm animals, poisonous or harmful to aquatic life, animals, birds or fish in or around the waters or unsuitable for use in irrigation, or obstructs or interferes with, or is likely to obstruct or interfere with persons in the exercise or enjoyment of any right in relation to the waters, or

(c) placing in or on, or otherwise introducing into or onto, the waters (whether through an act or omission) any matter, whether solid, liquid or gaseous, that is of a prescribed nature, description or class or that does not comply with any standard prescribed in respect of that matter,

and, without affecting the generality of the foregoing, includes:

(d) placing any matter (whether solid, liquid or gaseous) in a position where:

(i) it falls, descends, is washed, is blown or percolates, or

(ii) it is likely to fall, descend, be washed, be blown or percolate, into any waters, onto the dry bed of any waters, or into any drain, channel or gutter used or designed to receive or pass rainwater, floodwater or any water that is not polluted or, ...

if the matter would, had it been placed in any waters, have polluted or have been likely to pollute those waters.

(emphasis added by the Council)

7 The magistrate held there was no evidence of water pollution in relation to both charges. I note the events giving rise to these occurred relatively close together on 1 December 2010 (charge 866) and 10 January 2011 (charge 180). Her reasoning made reference to dictionary definitions of pollution and further included (TS4.23 - 39, 15 June 2012):

This information relates to polluting waters - that is, 180 - as does penalty notice ending in 866. As stated earlier in these remarks, the Court notes the definitions of "pollutant waters" contained in the legislation as well as in the dictionaries referred to clearly it is not sufficient to merely describe what can be observed with the naked eye. ...

There must be evidence of some aspect of the alleged "polluting waters" to show that the physical, chemical and biological characteristics of the water had been altered in such a way or to such an extent that it can affect the health or survival of life forms in an undesirable way. Alternatively, there must be evidence in relation to the water of the introduction of any matter to make the waters unclean, noxious, poisonous, impure or detrimental to the health, safety, welfare or property of persons, or harmful to animals, aquatic life, birds or fish, and I have to say there is no such evidence before the court, and accordingly those informations [sic] are dismissed.

8 The Council submitted that the magistrate did not refer to the deeming of pollution in paragraph (d) of the definition. The Council relied in written submissions on this part of the definition at the local court hearing. The magistrate refers to definitions of water pollution in several dictionaries, which the parties did not refer to. In failing to refer to that part of the definition the magistrate misconstrued it. That error vitiated her decision as there was evidence which supported a finding of guilt under paragraph (d) of the definition. Photographic evidence of each offence relied on by the Council showed sediment apparently from the site in such a position (for example, statement of Ms Evelyn Baker dated 10 November 2011 attachment F, statement of Mr Adam Steven (undated) attachment 1). The Respondent's expert Dr Daniel Martens, a civil and environmental engineer, gave evidence (TS29.9 - 17, 23 April 2012) that the road sloped downhill to the gutter on both sides:

Q. On Dumaresq Street adjacent to the site you accept that the centre of the road slopes downhill to the gutter on both sides, don't you?

A. I didn't take any measurements. It appeared to be a crowned road with the fall either side of the crown going towards the gutter.

Q. That being the case dirt which was at the centre of or on the opposite side of the road would be in a position where it might descend or be washed into the gutter at some point.

A. Yes.

9 The Respondent submitted that no question of law alone is identified with reasonable precision in relation to the magistrate's reasoning on water pollution, a requirement identified in R v JS [2007] NSWCCA 272; (2007) 175 A Crim R 108 at [75]. It is conceded that there is no express reference to the deeming provision in paragraph (d) of the definition of water pollution. The real criticism of the Council is inadequacy of reasoning. That is not the appeal ground articulated.

10 That there is no reference to the deeming part of the definition does not automatically mean that the magistrate misconstrued the definition. Such a conclusion should not be lightly drawn. Further, that the magistrate did not deal with deemed pollution is not a question of law alone but a question of mixed fact and law. The magistrate did make findings of fact and explicitly applied the definition of water pollution to these in arriving at her conclusion. The magistrate's approach did not turn on the deeming provision, rather she found there was an absence of evidence to support the charges, being evidence of the condition of the receiving waters. Further, even if there was a question of law alone able to be raised in this appeal by the magistrate it was not vitiating.

Failure to properly apply definition of water pollution

11 There is no explicit or implicit reference to paragraph (d) of the definition of water pollution in the magistrate's reasoning as set out in par 7, reliance on which was part of the Council's case before the local court. There was consequently no application of paragraph (d) of the definition to the facts before the magistrate. That oversight amounts to a misconstruction of the definition as the deemed pollution part is expressed to be separate from the rest of the definition of water pollution. The absence of reference to that part of the definition is not appropriately characterised as inadequacy of reasoning but is a material omission by the magistrate.

12 The magistrate's finding of fact that there was an absence of evidence demonstrating the condition of receiving waters before they were polluted or likely to be polluted is not an element of the offence called up by paragraph (d) of the definition. Contrary to the Respondent's submission, the issue on appeal being a misconstruction of a statute, is not a question of mixed fact and law but a question of law alone. The magistrate erred in her finding. That error vitiated her decision as the evidence before the magistrate did have the potential to prove water pollution as defined in paragraph (d) occurred on the offence date.

B. Misconstruction of development consent condition 75 (charge 875)

13 Under s 76A of the EPA Act development must not be carried out unless in accordance with a development consent in force. Development consent was granted by the Court for development application 0960/07 on 8 September 2008 subject to a number of conditions. Condition 75 of the development consent requires:

Temporary sediment and erosion control and [sic] measures are to be installed prior to the commencement of any works on the site. These measures must be maintained in working order during construction works up to completion. All sediment traps must be cleared on a regular basis and after each major storm and/or as directed by the Principal Certifying Authority and Council officers.

14 The site management and sediment control plan (the sediment control plan) approved with the construction certificate was tendered and the parties agreed that is part of the development consent by virtue of s 80 of the EPA Act. Dr Martens' statement dated 6 March 2012 at par 20(a) refers to that plan.

15 The offence date was 1 December 2010 and is particularised as lack of effective sediment control in place. The judgment transcript (TS4.41 - 5.44, 15 June 2012) states:

So far as penalty notices 180 and 875 referred to earlier related to lack of sediment controls, whilst it can be seen from the photographic evidence that the sediment socks appear to have been damaged, there can be no doubt that they were in fact put in place. ...

The evidence of Dr Martins [sic], on behalf of the defendant, is that he checked the Bureau of Meteorology records for Gordon Golf Club about a kilometre from the relevant site, which showed that, on 1 December 2010, 30.6 millimetres of rain fell in that area and, on the following day, up to 9am - that is the 2 December 2010 - 21.0 millimetres of rain fell, a total of 50.6 millimetres or 2 inches; precisely 1.99, actually.

That volume of rain over a short period of time has, to put it in relatively neutral terms, a destructive effect. It is important in the context of these matters to note that these rainfall records are indeed public records, but the real point is whether or not the sediment controls that had plainly been put in place were effective cannot be adequately or appropriately assessed without further evidence. Such evidence, in my view, would address what is the industry standard in respect of a variety of conditions, including - but not only - excessive and unusual volumes of rainfall.

The evidence of the [sic] Dr Martens also addresses this particular issue. He stated that he has more than 20 years' experience in assessing, testing or studying water quality in stormwater systems. On that basis, he gives his estimates of the extent of estimated suspended solids in the water levels in the gutters. Again, estimates- that is, the water, or from the gutters - were estimates themselves, obviously, and he posits the conclusion, on the basis of fairly straightforward calculations, that the controls that were in place at the time were adequate for the purpose.

Mr Bucevski [sic], site foreman at the time, stated in his evidence that he would instruct the site workmen to clean up the road adjacent to the site unless there was heavy rain, which he stated there was at the time, as we know and as already noted as independently recorded. He went on to state that, in his experience, heavy rainfall can result in leaking of sediment from the site, but again, he instructed workmen to clean it up, and there is nothing to contradict or otherwise traverse his evidence, and I accept that that was the case.

Further again he stated that the sediment socks were replaced on average up to ten times a week. Other than the very heavy rainfall, he also nominated the fact that trucks, on occasions, run over sediment socks, people steal them and so forth, or they move them, et cetera. Having regard to all this evidence, I do not find these offences proved; that is, in respect of the pollutant waters and lack of adequate or effective sediment controls.

16 The judgment transcript (TS15.45 - 16.21, 15 June 2012) states:

The situation is this; let me just take you through it. In relation to penalty number ending in 875, that is dismissed. In respect of 180, that is dismissed. ... In some respects, Mr O'Gorman-Hughes, I have to say I formed the opinion that the evidence of the council was, I suppose, truncated. The problem with sites such as this is that works are going to be carried on over a period of several months, usually.

I would think there would need to be - I do not mean to say regular, but frequent checks on whether there is compliance in accordance with consents obtained and so forth, and I particularly formed that view when I was looking at the photographs of conditions that prevailed on 1 December 2010 and on 4 January 2011, because it seemed to me that the council had taken, as it were, one moment in time and then prosecuted on the basis of that one moment in time, and you would have heard my remarks in respect of sediment socks and whether they were adequate at the time. ...

The Court had evidence that the site was closed the Christmas/New Year period, but I do not know whether the site had just reopened on 4 January. ...

17 The Council submitted that condition 75 required that the controls be maintained in working order during construction. The magistrate's construction of condition 75 was wrong as it did not require that the controls be in working order at all times. Ms Baker's evidence was that some of the sediment socks were damaged, were not in the path of the water and that she could see sediment further down the road in the direction of the water flow that appeared to have been carried around the sediment socks; statement of Ms Baker at par 22, attachment F. The error vitiated the decision.

18 The Respondent submitted that no question of law alone was identified by the Council. Further, a practical approach to the construction of condition 75 was required: Kendall Street Developments Pty Ltd v Byron Shire Council (No 2) [2004] NSWLEC 530; (2004) 138 LGERA 360 at [12]. The condition required the implementation of the sediment control plan, which demonstrably occurred. Sediment socks were installed and required that works off site such as sweeping of the road occurred regularly. That there was sediment on the road alone does not give rise to a breach of the condition as the plan expressly contemplates that occurrence, hence the requirement for the road to be swept.

19 Further, even if there was error this did not vitiate the magistrate's decision as she accepted the evidence of Dr Martens that the necessary and adequate sediment and erosion control measures were in place.

No failure in construction of condition 75

20 Whether a question of law alone is identified by the Council in this ground is not clear cut. Assessing whether the magistrate applied a wrong interpretation of condition 75 requires consideration of her approach to the evidence before her. That analysis does not lead to the discrete conclusion that there was a misconstruction, or more accurately an incorrect interpretation, of condition 75 as the Council submitted. The Council submitted that condition 75 requires that the sediment control measures be working at all times and the evidence of Ms Baker suggests they were not. The words "at all times" are not found in condition 75. Principles of statutory construction, if applied strictly to development consent conditions (which in any event are not drafted with the precision of statutory instruments prepared by parliamentary counsel), caution against implying additional words into legal instruments (see DC Pearce and RS Geddes, Statutory Interpretation in Australia, 7th ed (2011) LexisNexis Butterworths at [2.32] and the authorities cited therein).

21 Further, given the drafting of consent conditions by council planning staff who are unlikely to be legally trained, and as emphasised in Kendall, a practical approach to the construction and application of such conditions is warranted. The magistrate's reasoning process addresses the question of whether effective sediment controls are in place in the context of evidence that such controls were in place and there was excessive and unusually heavy rainfall leading up to the offence date. The Respondent's witness Mr Anthony Bosevski, its foreman, identifies the system in place which included that workmen had to clean up the road adjacent to the site unless there was heavy rain, as there was. The magistrate accepted that evidence as she was entitled to do. The magistrate was addressing the wording of the condition in the context of the evidence before her. No question of law alone is identified, nor was there an error of law in her approach. This ground is not established by the Council.

C. Denial of procedural fairness (charges 866, 180, and 875)

22 During the hearing on 23 April 2012 the magistrate refused the Council's application to rely on additional oral evidence (TS21.146). Her consideration leading up to this ruling commences at TS18 when the Respondent's solicitor objected to the Council calling oral evidence from Ms Baker who had already provided a written statement of evidence served on the Respondent. Any new oral evidence came as a surprise to the Respondent on the morning of the trial when there was no notice of what Ms Baker would say (TS18.6 - 28). Her statement is described as detailed and extensive. The Respondent also intended to file statements of evidence in court (TS17.27). The magistrate identified that the court had made orders that the Council file the brief of evidence by 30 October 2011 (TS19.27). At TS20.1 - 9:

... normally as I say where evidence is be lead by way of statement then evidence-in-chief is to be lead by way of statement and for that matter evidence in the defendant's case can be as it depends on what is agreed between the parties but there's no particular burden or obligation on the part of the defence to lead it's evidence-in-chief by way of written statement but where that happens the usual form of the proceedings, once we get underway with them, is that their witness not be called unless the defence wishes to cross-examine him or her and I actually don't see why you need to call these witnesses.

23 The magistrate asked at TS20.21 - 22 whether the evidence was required to fill holes in the Council's case. The Council's counsel outlined four questions he wished to ask of the witness. The Respondent's solicitor continued to object to further oral evidence. At TS21.5 the magistrate stated she had read the statements, did not consider the additional evidence would take the matter further, and if something in the defence case came out which led the Council to the view that the court's consent to call evidence in reply should be sought, that could be dealt with then. The magistrate ruled that further oral evidence from Ms Baker could not be called (TS21.46). She made the same ruling in relation to an application for further oral evidence to be adduced from Mr Steven (TS22.1).

24 The Council alleged that there was a denial of procedural fairness in the magistrate's refusal of its application to adduce additional evidence in chief (TS20 - 21, 23 April 2012) relying on Director of Public Prosecutions (NSW) v Elskaf [2012] NSWSC 21 and Director of Public Prosecutions v Shannon Paul Wunderwald [2004] NSWSC 182. The denial of procedural fairness is the magistrate's decision not to allow the Council's counsel to identify the evidence to be relied on before ruling that this would not be admitted (rather than the decision to refuse the evidence). The relevance of the evidence should have been able to be identified to the court and/or considered on a voir dire. Elskaf confirms that a denial of procedural fairness can be raised in an appeal on a question of law only. The standard of conduct at trial required of a magistrate identified in Elskaf at [44] was not met in this case.

25 The Respondent submitted that the exercise of discretion whether to allow evidence is not a question of law alone, supported by Williams v The Queen [1986] HCA 88; (1986) 161 CLR 278 at 301 - 302 per Mason and Brennan JJ. Consequently it cannot result in a denial of procedural fairness which can be raised in this appeal. Rothman J in Simmons v Director of Public Prosecutions [2009] NSWSC 1062; (2009) 75 NSWLR 453 identified at [31] that the denial of procedural fairness could not be raised in an appeal on a question of law only. The ruling that no additional evidence would be allowed (TS21 - 22) was made on two bases. Firstly, on case management principles that having required the Council and the Respondent to provide statements of evidence it was not appropriate that more evidence be allowed in chief (TS17 - 19). The second basis was that relied on by the Council being the refusal of the request that the evidence intended to be relied be identified. On either basis there was no denial of procedural fairness.

Denial of procedural fairness not a question of law alone

26 This ground requires consideration of the scope of an appeal under s 42(2B)(b) which is limited to a question of law only, in contrast to a question of law or error of law (which can include issues of mixed fact and law). The differences between these terms were recognised in Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318; (2007) 178 A Crim R 220 by Rothman J at [46]:

A question of law, as a term, is wider than the term "a decision on a question of law" (see, for example, Hutchinson v RTA [2000] NSWCA 332 at [33]) and wider than the term "error of law" (see, for example, Attorney General for the State of NSW v X [2000] NSWCA 199; (2000) 49 NSWLR 653 at [124]) and would, therefore, allow greater scope for an appeal "as of right". However, the use of the word "alone" in section 5(1)(a) of the Act confines the broader expression considerably and excludes errors of law made in the context of a decision of mixed law and fact or an exercise of discretion.

The parties accept these differences but disagree on whether this ground identifies a question of law only.

27 The Council characterised its case as a denial of procedural fairness and submitted that it can be raised in a limited appeal of this nature as no facts need be considered in order for that characterisation to apply. As became clearer in the course of the hearing, the point in time to which the ground is directed is not the magistrate's decision not to allow further oral evidence to be adduced by the Council but the earlier point of refusal to allow the Council's counsel to identify the nature of the evidence intended to be relied on. The Respondent characterised the ground as the wrongful rejection of evidence by the magistrate, which Brennan and Mason JJ in Williams held was an exercise of discretion and therefore cannot be raised in this appeal. Adopting the Council's characterisation of a denial of procedural fairness, any finding of denial of procedural fairness must be made regardless of the circumstances to avoid the question being one of mixed fact and law and therefore impermissible in this appeal.

28 The Council relied on Elskaf, an appeal from a magistrate under s 59(2) of the Appeal Act (which is in similar terms to s 42(2B)) with alternative reliance on s 69 of the Supreme Court Act 1970. Under s 69(3) the Supreme Court has jurisdiction to quash a determination if it was made on the basis of an error of law appearing on the face of the record. The grounds in Elskaf included denial of procedural fairness in circumstances outlined at [32]. These include the police prosecutor informing the court that he wished to call four police witnesses. The magistrate denied two witnesses the opportunity to be called before statements were tendered or read. The magistrate was criticised for taking over the conduct of the proceedings of one party and summarily preventing the prosecutor calling additional evidence it considered relevant. Paragraph [44] states:

It is clear that the Magistrate should have, but did not, permit the prosecution to call the witnesses who the prosecutor submitted were relevant. If the evidence of the witness was not relevant, then after the witness was called, it was a matter for the defendant's counsel to object to the evidence on the basis of a lack of relevance: s 56 Evidence Act 1995. Alternatively, if it was thought to be an appropriate course, the evidence could have been tested as to its relevance on a voir dire. Neither of these courses was adopted. Rather, the Magistrate peremptorily refused to permit the prosecutor to call one or more witnesses.

29 Wunderwald dealt with similar circumstances in an appeal from a magistrate.

30 The Respondent referred to Simmons because Rothman J at [31] stated:

Lastly, the Court should comment on the right to appeal. The parties to the appeal have assumed that there was a right of appeal. The right of appeal against conviction, granted by s 52 of the Crimes (Appeal and Review) Act 2001, relates to an appeal involving "a question of law alone". While the denial of procedural fairness may be jurisdictional, it involves an assessment of the circumstances of the proceedings and is not a question of law alone: Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318 and the cases cited therein. In those circumstances the right to appeal is granted by s 53 of that Act and only with the leave of the Court.

31 In Krishna, the three Court of Criminal Appeal judges, including Rothman J, agreed on the result but provided their own reasons in separate judgments. The authorities Rothman J cites at [44] - [46] include Williams.

32 A ground based on denial of procedural fairness must commonly be analysed by considering the circumstances said to give rise to it and that is certainly the case here. The magistrate's refusal to allow evidence to be identified by the Prosecutor did not occur in a factual vacuum. I have summarised at par REF _Ref340571576 \r \h 22 - REF _Ref340571584 \r \h 23 the reasoning of the magistrate as part of the interchanges with both parties' legal representatives on 23 April 2012 TS.17 - 21/22. The Council's assertion that the ground requires no further inquiry of the circumstances is incorrect particularly in light of authorities such as Krishna. Elskaf also does not support the Council. At [63] each ground of appeal, which included denial of procedural fairness, is identified as giving rise to an error of law rather than a question of law alone. Further, the Court's finding of denial of procedural fairness required consideration of the circumstances of the local court trial. Such a matter is permissible if an appeal is made in relation to an error of law but not a question of law only. In Elskaf an appeal on a ground of denial of process was open given the alternative power in s 69 of the Supreme Court Act based on a finding of an error of law. As identified above, error of law is broader in scope than question of law only as the former can encompass questions of mixed fact and law. This ground must fail as it is not a question of law alone.

No denial of procedural fairness in any event

33 For completeness, I will consider the circumstances of the magistrate's decision being challenged to determine if there was a denial of procedural fairness. The primary basis for the magistrate's ruling was to ensure compliance with an earlier case management ruling that the Council rely on written statements in its brief. She was no doubt mindful of the Respondent's opposition because the legal representative stated he was taken by surprise by the Council's application to adduce further oral evidence at trial without adequate notice. The Council was seeking to lead additional oral evidence from witnesses who had already provided written statements served on the Respondent. These circumstances are materially different from those in Elskaf and Wunderwald.

34 The transcript at TS17 - 21 shows that in fact the Council's counsel did outline in brief the nature of the questions he intended to ask Ms Baker. To characterise the exchange with the magistrate as a complete failure to allow him to identify the nature of that evidence is not accurate. I accept that no opportunity was provided to outline evidence in relation to Mr Steven's additional oral evidence. Given my finding in the previous paragraph that the reason for refusal of the evidence was case management requirements and fairness to the Respondent, that has no relevance to my finding.

35 The Council submitted that the standard of behaviour identified in [44] of Elskaf was not met in this case. The criticism made in Elskaf that the magistrate impermissibly took over the conduct of one of the parties' cases, does not apply to the circumstances here. The Council has not established this ground of appeal.

Conclusion on dismissal of charges appeals

36 I have upheld one ground of appeal in relation to the water pollution charges 180 and 866 (matter numbers 60721 and 60722 of 2012 respectively). The appeal against dismissal of charge 875 (matter number 60723 of 2012) will be dismissed.

Remitter

37 The Council sought an order that the charges be remitted to the local court for further determination but submitted that they should not go back to the original magistrate as statements at trial suggested she would not bring an open mind. The Respondent submitted that there was no power to limit the remitter in that way. Alternatively if there was, the Court should not exercise its discretion to do so: see Wunderwald.

38 Contrary to the Council's submissions, I do not consider there are statements which suggest that the magistrate will not bring an open mind to the two charges to be remitted. The statement in Wunderwald at [41] that it is inappropriate for the Supreme Court to intrude into the affairs of the local court as to make such an order remitting the matter to a different magistrate, apply here also. An order for remitter of charges 180 and 866 (matter numbers 60721 and 60722 of 2012 respectively) will be made under s 48(3)(b) of the Appeal Act.

Sentence appeal (charge 426)

39 The magistrate dismissed charge 426 (development not in accordance with consent) under s 10(1)(a) of the CSP Act which requires a finding that the offence was proved. The offence occurred on 4 January 2011 and is particularised as no controls in gutter, sediment trapped onto footpath. An appeal in relation to that decision is enabled by s 42(2A) of the Appeal Act on a question of law only. The offence is one of strict liability so that proof of mens rea is not required to establish the offence.

Sentence appeal maintainable

40 The Council submitted, and the Respondent did not dispute, that the failure of the magistrate to conduct any sentencing hearing including failing to hear from the Council before dismissing the charge under s 10(1)(a) was a denial of natural justice amounting to a question of law alone. Accordingly, this appeal can be maintained and requires this Court to exercise the sentencing function in a rehearing on the evidence before the local court and any new evidence admitted with leave. The transcript of the magistrate's judgment reflects these submissions. Sections 194 and 202 of the Criminal Procedure Act 1986 specify that if an offence is not admitted, a court must determine summary proceedings after hearing from a prosecutor, inter alia. Ex parte Kelly; Re Teece [1966] 2 NSWR 674 at 678, which considered a similar provision, s 80 of the Justices Act 1902 (repealed), supports this approach. I accept these submissions and consider that this appeal can be maintained under s 42(2A).

41 Sections 10 and 10A of the CSP Act relevantly provide:

10 Dismissal of charges and conditional discharge of offender

(1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders:

(a) an order directing that the relevant charge be dismissed,

(b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years, (not applicable to corporate defendants)

...

(3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors:

(a) the person's character, antecedents, age, health and mental condition,

(b) the trivial nature of the offence,

(c) the extenuating circumstances in which the offence was committed,

(d) any other matter that the court thinks proper to consider.

10A Conviction with no other penalty

(1) A court that convicts an offender may dispose of the proceedings without imposing any other penalty.

(2) Any such action is taken, for the purposes of the Crimes (Local Courts Appeal and Review) Act 2001 and the Criminal Appeal Act 1912, to be a sentence passed by the court on the conviction of the offender.

...

Evidence

42 The Council relied on the statement of Mr Steven, Council officer who attended the site at 4.30pm on 4 January 2011. He stated:

29. At this time I observed that:

(a) there were no temporary sediment and erosion control measures in place at Dumaresq;

(b) no temporary sediment and erosion control measures were being maintained during construction works up to completion; and

(c) sediment material had been tracked into the gutters and onto the carriageway of the roadway for the site.

30. The temporary sediment and erosion controls I am familiar with are:

(a) sediment socks and traps in the gutters; and

(b) blue metal or road base at the entry/exit of the site for trucks to cross over before leaving a site.

(c) I did not observe these erosion and sediment controls or any other controls in place at Dumaresq.

43 The Council's counsel relied on three of the notes on the sediment control plan specifying the following requirements:

05. Roads and footpaths to be swept daily and kept clean at all times.

...

10. The street drainage pit located downhill of the site shall be protected from sediment with sediment barrier.

11. A single construction entrance shall be established in the manner shown by the attached details.

44 The Council's counsel submitted there were three drains on the street outside the development site which he highlighted on the sediment control plan tendered. He submitted that the most westerly drain was the subject of Note 10 which required that the street drainage pit located downhill of the site be protected from sediment with a sediment barrier. This submission was disputed by the Respondent's counsel given that photograph 8 in attachment 10 to Mr Steven's statement shows a driveway at that location. The only drain photographed by Mr Steven was the middle drain highlighted by the Council's counsel.

45 The Council also sought to attack the Respondent's foreman Mr Bosevski's credit and referred to par 55 of his statement dated 20 April 2012 where he stated that the Respondent did not use the adjoining property for any purpose. In cross-examination at trial Mr Bosevski admitted that the site was used at the rear for entry onto the neighbouring property.

46 The Council sought leave to rely on new evidence as permitted by s 47(1) of the Appeal Act. Leave was granted for the affidavit of Mr John Paul Merlino, solicitor, dated 9 October 2012 attesting to a number of PINs served on the Respondent before and after the date of these offences. A table attached to the affidavit also identifies a number of convictions for environmental offences recorded against the Respondent since the offence date, including five convictions resulting from other charges heard on the same day as the charges the subject of this appeal.

47 The Respondent tendered the statement of Mr Robert Severino, its commercial construction manager, dated 19 April 2012 (in part); a letter from its director Mr Steve Nolan to the local court dated 20 April 2012; statement of Mr Bosevski, dated 20 April 2012 (in part); and statement of Dr Martens, civil and environmental engineer, dated 6 March 2012 (in part).

48 Mr Severino responded to Ms Baker's statement. He was familiar with the day-to-day operations of the site as he was involved in the initial set up of the project including arranging plans to ensure that the development consent was satisfied. This included preparing sediment and erosion control plans. Condition 75 of the consent and the sediment control plan required the Respondent to install a minimum of three sediment socks, one next to each of the two outlets on the site frontage and the third about 80m downhill near 36 Dumaresq Street, Gordon. A fourth sock could be placed in the middle of the entrance driveway or on its western edge to protect against sediment release during heavy rain. The sediment control socks were to be checked and maintained four times a day at approximately three-hour intervals to ensure that they remained satisfactorily operational. This included replacing, repositioning, removal of the sock from the gutter, washing it down and removing any built up sediment, as required. Traffic controllers and labourers were to sweep the entrance and roadway and after the site closed, a street sweeper would sweep up any remaining sediment. This ensured that nearly all sediment was removed from the roadway. Rain fell on 3 January 2011 at the site. During heavy rain some of the sediment and rubbish in front of the site may come from other sources such as the Council verge, trucks laden with soil passing by the site to other building sites, and rubbish and foliage from upstream washing down to the site.

49 In response to Mr Steven's statement, Mr Severino stated that the site was closed over part of the Christmas/New Year break, reopening on 4 January 2011, the date of the offence. During that time there was no opportunity for sediment to be lost due to vehicular tracking.

50 Dr Martens responded to Mr Steven's statement, stating that the Council's photographic evidence indicates that sediment and control measures were likely to have been in place at the time the penalty infringement notice was served.

51 Mr Bosevski stated that part of his role as foreman is to supervise the construction of buildings at the site. He was at the site on 4 January 2011. In response to Mr Steven's statement, Mr Bosevski stated that traffic controllers and labourers cleaned up the road four times a day at approximately three-hour intervals unless detained by the rain from doing so. He said there was moderate to heavy rain on 4 January 2011. The road would have been cleaned by labourers and traffic controllers before 5pm, and again after hours by the street sweeper.

52 Mr Nolan's letter states that the Respondent unreservedly apologises for the breaches of planning controls. It appreciates that such breaches can impact on the community and the environment. The Respondent has implemented management policies and practices together with staff training to ensure that such breaches do not occur in the future. It will use its best endeavours to ensure that its operations are carried out at all times in accordance with its obligations as a builder of public dwellings.

Sentencing submissions

53 Considering matters relevant to sentencing the Council submitted that the evidence of Mr Steven established that there was a failure to implement the sediment controls in the plan as he did not see any socks or traps, blue metal at the entrance to the site and the road was not kept clean at all times. The offence is not trivial. The Respondent is engaged in the business of building. Deterrence is an important consideration per Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357. An order under s 10(1)(a) of the CP Act is not appropriate in these circumstances and a nominal fine is not sufficient. That a PIN was issued is not relevant to the penalty per Cameron v Eurobodalla Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 3 at [35].

54 The Council further submitted that the Respondent has also been convicted of 18 environmental offences since the offence. The fact that a defendant has been convicted and sentenced for offences which occurred after the date of the offence does not aggravate the offence, but deprives a defendant of any leniency to which it might otherwise be entitled by the fact that it had no convictions at the date of the commission of the offence: R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [59] - [60].

55 In applying the principle of evenhandedness, that like offences should attract like penalties, Sutherland Shire Council v Upper Class Developments Pty Ltd [2003] NSWLEC 414 is comparable on its facts. A penalty of $10,000 was imposed for loss of sediment from a building site.

56 The Respondent submitted that while guilt had to be assumed given the magistrate's decision to dismiss the matter under s 10(1)(a), no aggravating feature was proved beyond reasonable doubt. The three matters relied on by the Council are, firstly, that no temporary sediment and control measures were implemented. The Council concedes however that there was a sediment sock in place near the drain at the front of the site given the conflict between Mr Steven's and Dr Martens' evidence. The Council's submission on the location of drainage pits is wrong. The downhill drainage pit referred to in Note 10 of the sediment control plan is not shown in any of the photographs attached to Mr Steven's statement. Mr Severino's evidence is that there is a pit 80m downhill from the site. There is no evidence before the Court to establish beyond reasonable doubt that no temporary measures were in place in relation to that pit.

57 Secondly, in relation to no blue metal or road base at the entry/exit, Mr Steven identifies measures he is familiar with but these are irrelevant. The requirement in Note 11 of the sediment control plan is for a single construction entrance to be established in the manner shown on the attached details. Those details do not require blue metal or road base at the entry/exit of the site. A construction of hardwood sleepers is required with blue metal aggregate under these. This aggravating feature was not established beyond reasonable doubt.

58 Thirdly, the Council relies on Note 5 in the sediment control plan which states "roads and footpaths to be swept daily and kept clean at all times". A commonsense and practical approach is required. For the note to have work to do it must be accepted there will be times when the road is dirty. In order for a breach it must be demonstrated that the road was dirty and then not swept clean. As the only evidence is that the road was dirty, that shows only that the plan was in the process of implementation.

59 The Respondent further submitted that the Court cannot be satisfied beyond reasonable doubt that any matter has occurred in breach of condition 75. The application of s 10(1)(a) reflects a finding that the magistrate was satisfied that there was an offence but no more. The matter can properly be dealt with under s 10(1)(a) of the CSP Act. Neither the PINs issued nor the convictions since the offence date can be relied upon in aggravation so they are not relevant to the objective gravity of the offence. If s 10(1)(a) is applied they have no role to play as they are relevant only to the Court giving less leniency to the Respondent if a penalty is to be imposed.

60 In mitigation the Court should consider that there was a sediment control system in place to manage the escape of sediment. According to Dr Martens, the Council's photographic evidence indicated that sediment and erosion control measures were likely to have been in place at the time the PIN was served (par 31(a) of his statement). Mr Severino gave instructions on behalf of the Respondent to ensure that procedures for controlling sediment were in place (par 21 - 27 of his statement). Mr Bosevski stated that any sediment on the road would have been cleaned in accordance with usual practice (par 30(a) of his statement).

61 The Respondent argued that there was no substance to the attack on Mr Bosevski's credit based on par 55 of his statement. He agreed promptly in cross-examination that he was wrong, suggesting he was an honest and reliable witness. His evidence in par 55 related to another PIN and to different circumstances. He was never accused at trial of lying in relation to the PIN concerning sediment on the road.

62 The Respondent considered that an order under s 10(1)(a) is appropriate. The factors in s 10(3) are disjunctive. The offence is trivial. If the court does not consider it was trivial, the totality of matters suggest that such an order is appropriate.

63 To the extent there was a breach of condition 75, it was not because of any disregard of the law by the Respondent which put sediment control measures in place. This is relevant to mitigation, and suggests that there is no need for general or specific deterrence. Mr Nolan expressed his contrition and remorse on behalf of the Respondent in his letter.

Order under s 10(1)(a) is warranted

64 Any of the matters identified in s 10(3) is not conclusive but all must be taken into account: R v Paris [2001] NSWCCA 83 at [43], [48] - [49]. The matters are disjunctive and do not all need to be satisfied in order for s 10(1)(a) to be applied: R v Paris at [42]. It is useful to first consider whether the offence is trivial as the Respondent disputes that any particular of the offences which is aggravating so as to render the offence more objectively serious has been proved beyond reasonable doubt by the Council. If not proved that suggests the offence is trivial.

65 In relation to the contention that no temporary sediment control measures were in place in breach of Note 10, I agree with the Respondent that has not been proved beyond reasonable doubt. Assuming that the relevant drainage pit is that referred to by Mr Severino as 80m downhill from the site, there is no specific evidence about it in Mr Steven's statement. It was not identified by the Council in the sediment control plan marked up by counsel in Court and there are no photographs of it in attachment 10 to Mr Steven's statement. The Council relies on the general evidence of Mr Steven that he did not see sediment socks or traps in place. The drain shown in photograph 8 of attachment 10 is agreed to be that identified as the middle yellow highlighted area on the sediment control plan which is at the front of the site, not the drain the subject of Note 10. As the Respondent identified, the Council conceded that there was at least one sediment sock located near the drain at the front of the site in light of the conflict between the evidence of Dr Martens and Mr Steven on that issue. The general evidence of Mr Steven does not establish this particular of the offence beyond reasonable doubt.

66 In relation to the absence of blue metal or road base at the entry/exit, I agree with the Respondent's submissions that Note 11 does not specify what the Council relies on for the reasons summarised at par REF _Ref340587184 \r \h \* MERGEFORMAT 57 above. This particular is not established beyond reasonable doubt by the Council.

67 Note 5 requires roads and footpaths to be swept daily and kept clean at all times. If taken as specifying two separate requirements given the conjunctive "and", the requirement that roads be clean at all times is unambiguous. There is evidence in the photographs attached to Mr Steven's statement of sediment on Dumaresq Street outside the site. There is also another construction site on the opposite side of the road shown in one of the photographs in attachment 10 so that there is another potential source of some or all of the sediment shown on the road. This source is referred to in Mr Severino's evidence.

68 I do not accept the Respondent's submission that the obligation in Note 5 to keep the road clean at all times should be interpreted so that compliance with that part is met by compliance with the first part, being sweeping the road daily. The objective seriousness of the offence overall, however, is affected by whether such a system is in place given the first part of Note 5 which requires that the road be swept daily. Mr Severino's evidence outlines the system intended to be in place including regular checking of sediment control measures and sweeping of the road several times a day. He identifies other potential sources for sediment outside the site. Further, the site was closed over the Christmas/New Year period until 4 January 2011, the offence date, suggesting it was unlikely to be the source of all the sediment on the road as shown in the photographs.

69 The evidence of Mr Bosevski, foreman on site on the day of the offence, is that there was the system in place for regular sweeping of the road four times each day at approximately three-hourly intervals. He attests to the moderate to heavy rain that day and that the road would have been swept before 5pm when the site closed and also by street sweepers shortly thereafter. In the absence of contrary evidence from the Council, I accept that such a system was in place and implemented. I do not accept the attack on Mr Bosevski's credit by the Council's counsel for the reasons given by the Respondent at par REF _Ref340587305 \r \h 61 above. Mr Steven arrived at the site at 4.30pm essentially in the period in between the road being swept as part of the Respondent's sediment control system and as required by Note 5. While a breach of the second part of Note 5 is established in that the road was not clean at a particular point in time, the objective seriousness of that breach is greatly diminished given the system in place for sweeping to occur, in compliance with the first part of Note 5. It is also not proved beyond reasonable doubt that all the sediment on the road in Mr Steven's photographs came from the Respondent's site. This conclusion supports a finding that this offence, while proved, is trivial.

70 I should note for completeness that my conclusion in the previous paragraph could be seen to be at odds with my finding on the other charge of failing to comply with a development consent condition being condition 75 (charge 875) considered above at par REF _Ref341266820 \r \h 20 - REF _Ref341266828 \r \h 21. There was also evidence of sediment on the road in that matter. That charge related to a different day and focussed on the construction of condition 75 rather than the sediment control plan. The evidence as referred to by the magistrate differed from what is before me in this sentencing appeal. My finding here reflects my understanding of the evidence before me.

71 Numerous cases identify that s 10(1)(a) is rarely applied for strict liability environmental offences given the deterrent purpose of punishment for such offences, and the need to give effect to the statutory system of planning and other environmental controls: McDonagh on behalf of Great Lakes Council v Birdon Dredging Pty Limited [1998] NSWLEC 102; (1998) 99 LGERA 198 at 205 per Bignold J; Thorneloe v Filipowski [2001] NSWCCA 213; (2001) 52 NSWLR 60 at [165] - [169] per Spigelman CJ; and Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132; (2002) 122 LGERA 89 at [35] per Lloyd J; Upper Class Developments at [24] per Pain J; and Blue Mountains City Council v Carlon [2008] NSWLEC 296 at [70] - [71] per Biscoe J. In Thorneloe, a prosecution for a strict liability offence of the discharge of oil from a ship into water, the Court of Criminal Appeal made a s 10(1)(a) order in relation to the ship's master. The master had pleaded guilty, the oil pollution was minor and there was nothing he could have done to avert the oil spill the subject of the offence and it was the master's first offence.

72 Additional matters identified in s 10(3) include the antecedents of a defendant and whether there are extenuating circumstances in which the offence was committed. If extenuating circumstances are taken to be those which reduce the seriousness of the offence, they are already identified in par REF _Ref341267638 \r \h 68 - REF _Ref341267644 \r \h 69. The Respondent is a builder and at the offence date had no other convictions for environmental offences. The importance of deterrence for those engaged in building as a business must be recognised.

73 Encouraging companies to take appropriate steps to ensure that their activities are conducted lawfully is another reason why s 10(1)(a) is rarely applied in such matters. In this case it is difficult to see what more the Respondent could have done to avoid the offence given that I have accepted that it had a system in place for sediment control which nothing in the Council's evidence in relation to this charge demonstrated was lacking. The presence of sediment outside the Respondent's site which may or may not have all come from that site and the intention to sweep the road shortly after Mr Steven arrived at the site suggest that there was nothing more that could have been done on this occasion. Whether s 10(1)(a), or s 10A for that matter, should be applied is finely balanced in this case. I consider that an order under s 10(1)(a) is appropriate, which essentially confirms the magistrate's decision. The appeal on sentence should be dismissed.

74 Costs of the appeal are yet to be determined. The parties will need to advise the Court on how they wish this to be dealt with.

Order

75 The Court makes the following orders:

1. The appeal in matter number 60723 of 2012 against an order dismissing the charge relating to penalty infringement notice 3035809875 is dismissed.

2. The appeals in matter numbers 60721 and 60722 of 2012 against orders dismissing charges relating to penalty infringement notices 3035840180 and 3035809866 are upheld.

3. Matter numbers 60721 and 60722 of 2012 being penalty infringement notices 3035840180 and 3035809866 are remitted to the Local Court for determination in accordance with these reasons.

4. The appeal in matter number 60720 of 2012 against sentence for the charge relating to penalty infringement notice 3035798426 is dismissed.

5. Costs are reserved.

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Decision last updated: 27 November 2012