Secretary, Department of Planning and Environment v Aerotropolis Pty Ltd [2023] NSWLEC 4

Land and Environment Court New South Wales

Medium Neutral Citation: Secretary, Department of Planning and Environment v Aerotropolis Pty Ltd [2023] NSWLEC 4 Hearing dates: 11 October 2022 Date of orders: 2 February 2023 Decision date: 02 February 2023 Jurisdiction: Class 5 Before: Moore J Decision: See orders at [146] Catchwords: PROSECUTIONS - multiple charges laid pursuant to the National Parks and Wildlife Act 1974 and the Biodiversity Conservation Act 2016 (together the charge‑founding statutes) - charges required to be laid within two years of alleged offending conduct becoming known to an authorised officer - challenges to whether charges were laid prior to the expiry of the two‑year limitation period - two separate bases advanced by the Defendant as to why the prosecutions were commenced out of time - first basis that the day knowledge of the offending conduct coming to the attention of an authorised officer to be counted in the two‑year limitation period - second basis (if the first basis failed) was that the two-year time period expired on a Saturday and that the provisions of s 36(2) of the Interpretation Act 1987 (the Interpretation Act) were not available to the Prosecutor to extend the time for commencement of the prosecutions until the next available working day - question whether two-year limitation period included the day when the authorised officer became aware of the alleged offending conduct or whether that day was excluded from the two-year period - Defendant proposes that the day was included - inclusion of the day would mean that all the prosecutions were commenced out of time - day the authorised officer became aware of the alleged offending conduct not to be counted in the two-year period - consideration of whether the relevant provisions in the charge‑founding statutes ousted the operation of the Interpretation Act provision – time‑extending provision of the Interpretation Act not ousted - prosecutions all commenced within time - Defendant's Notice of Motion dismissed Legislation Cited: Acts Interpretation Act 1901 (Cth), s 36 Acts Interpretation Act 1931 (Tas), s 29 Acts Interpretation Act 1954 (Qld), s 38 Biodiversity Conservation Act 2016, ss 2.2(1)(b), 2.4(1) and 13.4 Children (Criminal Proceedings) Act 1987 Criminal Procedure Act 1986, s 246(1)(a) Environmental Planning and Assessment Act 1979, s 127(5) Interpretation of Legislation Act 1984 (Vic), s 44 Interpretation Act 1978 (NT), s 28 Interpretation Act 1984 (WA), s 61 Interpretation Act 1987 (NSW), ss 5(2) and 36 Legislation Act 2001 (ACT), s 151A Legislation Interpretation Act 2021 (SA), s 44 National Parks and Wildlife Act 1974, ss 118A(2), 118D(1) and 190 Cases Cited: Attorney-General (Cth) v Oates (1999) 198 CLR 162; [1999] HCA 35 Chief Executive, Office of Environment and Heritage v Geoffrey Phillip Manchee; Chief Executive, Office of Environment and Heritage v Bogamildi Investments Pty Ltd [2015] NSWLEC 117 Chief Executive of the Office of Environment and Heritage v Somerville [2019] NSWLEC 155 Dodds v Walker [1981] 1 WLR 1027 Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125; [2013] NSWCCA 204 Epacris Pty Limited v Director-General, Department of Natural Resources (2007) 69 NSWLR 507; [2007] NSWCCA 76 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 Hill v Zuda Pty Ltd [2022] HCA 21 Lester v Garland (1808) 15 Ves Jun 248 Marshall v Director-General, Department of Transport (2001) 205 CLR 603; [2001] HCA 37 Morgans v Director of Public Prosecutions [1999] 2 Cr App R 99 Morton v Hampson [1962] VR 364 Price v JF Thompson (Qld) Pty Ltd [1990] 1 Qd R 278 R v A2 (2019) 269 CLR 507; [2019] HCA 35 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 Walker Corporation Pty Limited v Sydney Harbour Foreshore Authority (2008) 233 CLR 259; [2008] HCA 5 Wignalls Smallgoods Pty Ltd v Kent (2002) 10 Tas R 460; [2002] TASSC 67 Willoughby City Council v Screnci (2015) 213 LGERA 238; [2015] NSWLEC 192 Category: Procedural rulings Parties: Secretary, Department of Planning and Environment (Prosecutor) Aerotropolis Pty Ltd (Defendant) Representation: Counsel: Ms N Sharp SC/Ms L Opper, barrister (Prosecutor) Mr P Herzfeld SC/Mr J Wherrett, barrister (Defendant)