Leda Manorstead Pty Ltd v Secretary, Department of Planning and Environment [2022] NSWCCA 220

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Leda Manorstead Pty Ltd v Secretary, Department of Planning and Environment [2022] NSWCCA 220 Hearing dates: 14 and 15 September 2022 Date of orders: 10 October 2022 Decision date: 10 October 2022 Before: Brereton JA at [1]; Preston CJ of LEC at [13]; Chen J at [119] Decision: The appeal is dismissed. Catchwords: APPEAL – appeal against conviction – carrying out of project in contravention of conditions of approval – condition requiring bulk earthworks on site not to exceed a maximum exposed disturbed area – construction of condition – "site" on which bulk earthworks carried out – whether only parts of site on which earthworks carried out under condition or site more generally – misconstruction of "site" – bulk earthworks authorised but not undertaken under other consents – whether changes calculation of maximum exposed disturbed area – whether areas disturbed by winning of fill and placing of fill are both exposed disturbed areas – whether ambiguity of condition should have resulted in construction in favour of defendant – whether error in construction of "site" material – no substantial miscarriage of justice – maximum exposed disturbed area limit still exceeded Legislation Cited: Criminal Appeal Act 1912 (NSW) ss 5AA, 5AB, 6(1), 17(1) Environmental Planning and Assessment Act 1979 (NSW) ss 75D, 75E, 75O, 75P, 75W, 125, Part 3A Interpretation Act 1987 (NSW) s 6 Cases Cited: 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685 Beckwith v The Queen (1976) 135 CLR 569 Director General, Department of Land and Water Conservation v Bailey (2003) 136 LGERA 242 Geitonia Pty Ltd v Inner West Council; Gertos v Inner West Council [2016] NSWCCA 186 Gilmour v Environment Protection Authority; Tableland Topdressing Pty Ltd v Environment Protection Authority (2002) 55 NSWLR 593; [2002] NSWCCA 399 Grajewski v Director of Public Prosecutions (NSW) (2017) 270 A Crim R 33; [2017] NSWCCA 251 Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage (2013) 298 ALR 532; [2013] NSWCCA 114 North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468; (1998) 97 LGERA 433 Walker Corporation Pty Ltd v Director General, Department of Environment, Climate Change and Water (2012) 82 NSWLR 12; [2012] NSWCCA 210 Waugh v Kippen (1986) 160 CLR 156 Category: Principal judgment Parties: Leda Manorstead Pty Ltd (Appellant) Secretary, Department of Planning and Environment (Respondent) Representation: Counsel: Mr A Galasso SC with Ms B Anniwell (Appellant) Dr K Stern SC with Ms A Garsia (Respondent)