M&S Investments (NSW) Pty Ltd v Affordable Demolitions and Excavations Pty Ltd [2023] NSWLEC 65

Land and Environment Court New South Wales

Medium Neutral Citation: M&S Investments (NSW) Pty Ltd v Affordable Demolitions and Excavations Pty Ltd [2023] NSWLEC 65 Hearing dates: 7 February and 7 March 2022 Date of orders: 16 June 2023 Decision date: 16 June 2023 Jurisdiction: Class 5 Before: Pepper J Decision: See orders at [162]. Catchwords: ENVIRONMENTAL OFFENCES: private prosecution - defendants charged with multiple offences concerning the transport and deposit of waste material containing asbestos on land – whether summonses should be permanently stayed or struck out on the ground that the charges were commenced out of time – proper construction of phrases "evidence of the alleged offence" that first came to the attention of "any relevant authorised officer" – when evidence of the acts or omissions constituting some of the offences came to the attention of the relevant authorised officer –what constitutes a "continuing offence" – pollution of land offence not a continuing offence in these proceedings – except for summons charging defendant with the unlawful disposal of asbestos waste the summonses must be dismissed by reason of being time barred. Legislation Cited: Clean Waters Act 1970, ss 12, 16 Criminal Procedure Act 1986, s 257C Environmental Offences and Penalties Act 1989, s 12 Environmental Planning and Assessment Act 1979, ss 125, 127(5A) Evidence Act 1995, Dictionary Local Government Act 1993, s 378 National Parks and Wildlife Act 1974, s 190 Native Vegetation Act 2003, ss 12, 42 Protection of the Environment Operations Act 1997, ss 6, 91, 115, 142A, 143, 144AAA, 169, 169B, 169C, 184, 187, 216, 219, 242, 245, 261 Cases Cited: Bentley v Gordon; Bentley v BGP Properties Pty Ltd [2005] NSWCCA157; (2005) 139 LGERA 449 Chief Executive, Office of Environment and Heritage v Grant Wesley Turnbull (No 3) [2019] NSWLEC 165 Chief Executive, Office of Environment and Heritage v Manchee; Chief Executive, Office of Environment and Heritage v Bogamildi Investments Pty Ltd [2015] NSWLEC 117; (2015) 209 LGERA 280 Chief Executive of the Office of Environment and Heritage v Somerville [2019] NSWLEC 155 Cumberland Council v Younan; Oueik; H and M Renovations Pty Ltd [2018] NSWLEC 145 CSR Ltd v Environment Protection Authority [2000] NSWCCA 373 Environment Protection Authority v Alkem Drums [2000] NSWCCA 416; (2000) 113 LGERA 130 Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79 Environment Protection Authority v CSR Ltd (t/as CSR Woodpanels) (1998) 45 NSWLR 357 Environment Protection Authority v Sydney Water Corporation [2021] NSWLEC 4 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Kiangatha Holdings Pty Ltd v Water NSW [2020] NSWCCA 263 Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 R v Buckland [1977] 2 NSWLR 452 RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 Rummery v Chief Executive, Office of Environment and Heritage [2014] NSWCCA 106; (2014) 201 LGERA 428 Somerville v Chief Executive of the Office of Environment and Heritage [2020] NSWCCA 93; (2020) 246 LGERA 141 Willoughby City Council v Screnci [2015] NSWLEC 192; (2015) 213 LGERA 238 Category: Principal judgment Parties: 2021/261150 to 2021/261176 M & S Investments (NSW) Pty Ltd (Prosecutor) Affordable Demolitions & Excavations Pty Ltd (First Defendant) Chalita Boutros (Second Defendant) Angela Carbone (Fourth Defendant) Domenic Carbone (Fifth Defendant) Rimon Boutros (Sixth Defendant) Representation: Counsel: R Tripodi (Prosecutor) S Grey (First, Second and Sixth Defendants) R Coffey (Fourth Defendant) R Boncardo (Fifth Defendant)