Land and Environment Court New South Wales Medium Neutral Citation: Secretary, Department of Planning, Housing and Infrastructure v CEAL Ltd (t/as Multiquip Quarries) [2024] NSWLEC 89 Hearing dates: 14 August 2024 Date of orders: 22 August 2024 Decision date: 22 August 2024 Jurisdiction: Class 5 Before: Pain J Decision: The Court orders that: (1) Leave be granted to the Prosecutor to withdraw each of the summonses in proceedings 2023/00451488 and 2023/00451489. (2) In proceeding 2023/00451490 the Defendant's notice of motion dated 14 May 2024 is dismissed. Catchwords: CRIMINAL – practice and procedure – charge of failing to comply with development consent conditions by breach of s 9.51 Environment Planning and Assessment Act 1979 (NSW) – whether amended summons patently duplicitous Legislation Cited: Environment Planning and Assessment Act 1979 (NSW), ss 4.2, 9.51 Cases Cited: Environment Protection Authority v Pullinger [2022] NSWLEC 143 Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125; [2013] NSWCCA 204 Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77 Kiangatha Holdings Pty Ltd v Water NSW [2020] NSWCCA 263 Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd (2018) 362 ALR 359; [2018] NSWCCA 202 Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26 Texts Cited: Nil Category: Procedural rulings Parties: Secretary, Department of Planning, Housing and Infrastructure (Prosecutor) CEAL Ltd (t/as Multiquip Quarries) (Defendant) Representation: Counsel: L Sims (Prosecutor) P English with L Muir (Defendant) Solicitors: Department of Planning, Housing and Infrastructure (Prosecutor) Marsdens Legal (Defendant) File Number(s): 2023/451488, 2023/451489, 2023/451490-002 JUDGMENT 1. The Secretary, Department of Planning, Housing and Infrastructure alleges that during the period of 18 September 2020 to 20 April 2022 the Defendant CEAL Ltd (t/as Multiquip Quarries) committed an offence against s 9.51 of the Environment Planning and Assessment Act 1979 (NSW) (EPA Act) in that it carried out development other than in accordance with the conditions of development consent, contrary to s 4.2 of the EPA Act. The development being carried out by the Defendant is the Ardmore Park Quarry (the quarry), as described in the development consent (MOD 3) and located in Oallen Ford Road, Bungonia. 2. The Prosecutor was granted leave to rely on an amended summons, the particulars being extracted as follows: (c) Condition of the Development consent that the Defendant did not comply with Condition 2 of Schedule 2 of the Development Consent (MOD 3). That condition provides as follows: 2. The project may only be carried out: (a) in compliance with the conditions of this approval; (b) in accordance with all written directions of the Planning Secretary; and (c) generally in accordance with the EA and the Project Layout in Appendix 1. … (e) Manner of breach At all relevant times, the Defendant, by itself, its servants and agents, was carrying out the development comprising the Ardmore Park Quarry pursuant to the Development Consent (MOD 3). The Defendant, in carrying out the development, did not comply with Condition 2 of Schedule 2 to the Development Consent (MOD 3) in its construction and use of silt cells 1, 2 and 3a and silt and oversize overburden management areas 1 and 2 to the west of the acoustic bund, not generally in accordance with the environmental assessment documents and project layout incorporated into the approval by reference in condition 2 of Schedule 2 of the Development Consent (MOD 3). … 1. The Defendant has filed a notice of motion alleging duplicity in the amended summons and seeks an order that the Prosecutor be put to an election to ensure that the amended summons alleges only one offence. At issue is the identification in the amended summons of three silt cells and two oversize management areas. The Defendant submits each of these should be the subject of a separate offence. The Prosecutor does not agree. 2. The Defendant was granted development approval in accordance with Figure 1: 3. The quarry was granted approval to operate to the east of the acoustic bund wall identified in Figure 1. Unwanted product was to be deposited in the quarry area to the east of the acoustic bund wall. 4. The Defendant tendered a bundle of documents including a 'Notification of Non-compliances with Project Approval PA 07_0155 (MOD 3) at the Ardmore Park Quarry' prepared by the Defendant in December 2021 (Notification of Non-compliances). Figure 3 identifies the locations of silt cells 1, 2, 3a and oversize management areas 1 and 2 the subject of the charge: 5. As identified in the amended summons extracted above in [2], the Prosecutor alleges the use of silt cells 1, 2 and 3a and oversize management areas 1 and 2 to the west of the acoustic bund wall is not generally in accordance with the development approval. The three silt cells are located on oversize management area 2. For clarity two areas are identified in Figure 3 as 'active silt cell 3'. The area identified as 'active silt cell 3' within 'silt and oversize management area 4' is not the subject of the charge. The amended summons refers to silt cell 3a to refer to the area marked 'active silt cell 3' within 'silt and oversize management area 2'. 6. The Notification of Non-compliances states in relation to Figure 3 'areas of disturbance beyond approved area of disturbance' including relevantly 'active silt cell 1', 'active silt cell 2', 'active silt cell 3[a]', 'silt and oversize management area 2' and 'silt and oversize management area 1 (dried silt)'. Photos of the oversize management areas are described as 'Photo 3: Silt and Oversize Management Area 1' and 'Photo 4: Silt and Oversize Management Area 2 (includes Active Silt Cells 1 and 2 [and 3a])'. The area of oversize management area 2 is 4.7ha. The area of oversize management area 1 is 2.4ha. 7. The reasons for the non-compliances were stated to be: The higher proportion of silts than anticipated in the in situ sand has meant that a greater quantity of fines or silts being generated as a result of sand washing. This and the fact that the extraction sequence had to change meant that there were limited opportunities to place the silts back into the completed "Old Sand Pit". 1. The 'consequences of the manifestation of these variables' include: A series of silt cells were required to be constructed beyond the approved area of disturbance to allow the settling of the silts and the recovery of process water. It was always Multiquip's intention that the external storage of silts would only occur for the initial few years until in-pit silt placement could commence. It remains Multiquip's intention to relocate the silts to the completed extraction void(s) as soon as practicable and use some of the dried silts to assist in creating the Extended Northern Visibility Barrier. 1. The Prosecutor relied on two transcripts of recorded interviews and exhibits referred to in the interview. In an interview on 21 September 2022 Mr Cox an employee of the Defendant described the oversize management areas as follows: A: [Oversize management area 1] and [oversize management area 2] are both storage areas for, again, clay/silt tailings, either a combination of runs where the material is basically placed as a slurry, allowed to evaporate before being collected again or, in the case of [oversize management area 1], there are a number of actual emplacement ponds, yeah, which do evaporate over time but are sort of – yeah, more liquid. Q 84: Okay. Is there another word to describe those evaporation ponds? A: Like were the project a – a mineral mine I'd describe them as tailing ponds. That's a sort of similar function to what they serve bit it is basically just a mix of inert fine clay/silt material that's been washed out of the sand and water. The water does evaporate and it does become just a solid clay and I think the current obligations of the company are to eventually use that material and emplace it back in the remaining quarry void as part of the sort of rehabilitation of the site to restore the landform. 1. The second interview was conducted on 21 September 2022 with Mr Wall quarry manager. Mr Wall was asked about silt cells 1, 2 and 3a and gave the following answers: Q 97: Just by way of trying to get directions, are these active silt cells 1, 2 and 3[a] located to the west of the acoustic bund wall? A: They are. Q 98: Why were these active silt cells constructed in this location? A: The location was close to the origin of the silt and the extraction sequence had not yet permitted the backfilling of the active quarries. Q 99: What would have happened to the operation if these active silt cells were not constructed? A: If you cannot address the management of silt, you cannot wash sand and the business would have gone out of business. Duplicity principles 1. The parties agreed on the principles for duplicity but disagreed on their application. No count in an indictment should charge a defendant with having committed two or more separate offences, Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26 at 92-3 (Kirby J), Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125; [2013] NSWCCA 204 (Truegain) at [33]-[34] (Leeming JA, Hulme and Button JJ agreeing). The rule against duplicity is based on considerations of the orderly administration of criminal justice and fairness, namely the court knowing the charge before it and the defendant knowing the case he or she must meet. Patent duplicity arises where it is apparent on the face of the summons that more than one offence has been charged within the one count, Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77 at 487 (Dixon J), Walsh v Tattersall at 100. The law requires a strict application by the courts of the rule against duplicity, Walsh v Tattersall at 110‑11, Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd (2018) 362 ALR 359; [2018] NSWCCA 202 at [50] (Bathurst CJ, Fullerton and Campbell JJ agreeing). Whether a charge is duplicitous can be a matter of fact and degree, Walsh v Tattersall at 108. 2. As an exception to the strict rules against duplicity, where acts form part of the same transaction or criminal enterprise, they may be charged permissibly in a single count. The general rule is that unless the allegation constitutes a continuing offence or offences which are closely related amounting to the one activity, they should be charged separately, Truegain at [48], [50]. I note that the Defendant appeared to consider that the Prosecutor was relying on this exception, but the Prosecutor does not. 3. Where an information or complaint is drawn so as to disclose more than one offence, the proper course is to put the prosecutor to an election, Johnson v Miller at 489. Defendant's submissions 1. The Prosecutor's amended summons alleges the use of five distinct things, namely silt cells 1, 2 and 3a and oversize management areas 1 and 2. The use of each of these things over the proposed amended charge period comprises separate offences. The five uses of land rolled up into the single charge are not uniform: 1. The land has been used in three physically distinct ways separate from each other in connection with silt cells 1, 2 and 3a; and 2. The land has been used in two physically separate areas in connection with oversize management areas 1 and 2. 1. This physical distinction, at the level of the use of land, on its own warrants a finding of duplicity and a concomitant order for an election (i.e. between the silt cells and oversize management areas). These two forms of land use do not involve similar acts. 2. The Defendant particularly relied on Kiangatha Holdings Pty Ltd v Water NSW [2020] NSWCCA 263 (Kiangatha) which concerned a single water pollution offence arising from the construction of a road in and around numerous drainage lines and gullies. The prosecutor submitted that, notwithstanding that individual constituents of the overall conduct alleged under each of the charges may have involved separate offences, the totality fell within the exception to the general rule against duplicity as constituting a single criminal enterprise. Fagan J (Hoeben CJ at CL and Rothman J agreeing) dealt with this submission at [57]‑[58], as follows: [57] … But it does not follow from recognising the road construction as a single engineering project that one may regard numerous individual acts, committed in the course of that project and being of a kind that s 120 forbids, as an "overall transaction" from the point of view of criminal pleading… [58] … The allegedly consistent method simply means that the many separate acts, each allegedly infringing s 120 of the Protection of the Environment Act, were of a similar kind. Repetition of similar acts at different locations and times does not weld those acts into one. The fact that the applicant had only one intention, to construct a road, is also not a significant feature in support of the single transaction argument in this case. 1. None of the factors which the Prosecutor relies on to justify rolling up these five land uses into a single charge alleging a single course of conduct impedes the identification of a series of discrete offences against s 4.2 of the EPA Act and the charging of such offences individually, Kiangatha at [68]. The Prosecutor has not demonstrated a legitimate reason that would warrant a departure from the strict application by the Court of the rule against duplicity. The rolling up of the offences into a single charge is demonstrative of unfairness. Prosecutor's submissions 1. The Defendant is charged for carrying out development other than in accordance with conditions of consent granted. The nub of the allegation is that the development fell outside the bounds of the approved development. The use of land in carrying out the development was for the single purpose of a quarry. 2. Having regard to the indicia identified by Kirby J in Walsh v Tattersall at 108, the evidence supports the proposition that the use of silt cells 1, 2, 3a and oversize management areas 1 and 2 was a single course of conduct capable of being charged as a single count as they form part of a single system. The use of the three silt cells and two oversize management areas occurred over the same period of time, relevantly, the charge period. In the Notification of Non-compliances, the Defendant indicated that it intended to continue to use silt cells within oversize management area 1 until silt can be placed in the extraction void. Mr Cox's description of how the areas were used indicates that they were used over a period of time. The use of the silt cells and oversize management areas involved similar acts. As described by Mr Cox, the areas were used to spread silt slurry so that water could evaporate and then the remaining solid clay could be collected. The silt cells were used where the slurry was more liquid and when the oversize management area was used the slurry would be placed in a series of runs. 3. The silt cells and oversize management areas were in physical proximity. In his interview Mr Wall indicated that this location was selected because it was close to where the silt/slurry was generated, that is, close to the sand washing area. The intention of the Defendant throughout the conduct of using the silt cells and oversize management areas was the same. The silt cells and oversize management areas were necessary to manage silt slurry generated from washing sand. The Defendant could not do as originally proposed (and approved) and place the silt in the extraction void because a larger amount of silt was generated than expected and there had been a change to the extraction sequence. Faced with those unexpected circumstances, the Defendant used the silt cells and oversize management areas to manage the silt generated. The charge is not duplicitous. Finding 1. The nature of the offence charged in the amended summons is key to determining the Defendant's allegation of duplicity. As the Prosecutor identified the charge is that in carrying out development for a single period of approximately 18 months the Defendant failed to comply with the conditions of the development consent granted for the operation of a quarry. 2. In a nutshell, development consent was granted to conduct the quarry activity to the east of an acoustic bund wall. No approval to do work to the west of the acoustic bund wall was granted. Work was nevertheless undertaken in the area to the west of the acoustic bund wall being the establishment of three silt cells and two oversize management areas. Consequently their use in that area is not in accordance with the development consent conditions. The Prosecutor correctly identifies that 'development' is widely defined to include the use of land and can be expected to occur over a period of time given the nature of the activities being undertaken by the Defendant in its quarrying activities. 3. The Notification of Non-compliances provided by the Defendant identifies that the quarry operation is not implemented in a manner that accords with the development consent. The Notification of Non-compliances describes the five physical features referred to in the amended summons being the three silt cells and two oversize management areas as being part of the slurry management system created to the west of the acoustic bund wall. The five physical features are located in close physical proximity as can be seen in Figure 3 above in [6]. The photographs included describe the physical features in an inter-related way. That the areas of the two oversize management areas are relatively large (4.7ha and 2.7ha) is immaterial as these are part of a system of slurry management which utilises the five physical features supporting the production of sand to which the quarry operation is directed. The information provided by the Defendant in the Notification of Non-compliances describes the five physical features collectively as part of a single system and that is the basis of the charge. The responses in the recorded interview extracts set out above in [11], [12] provide the Defendant's explanation for why this was done and how it was done, being that it was necessary to address a higher than expected volume of material which needed to be washed and was located close to where silt was harvested. 4. As a matter of fact and degree the slurry management system is in operation in the same general area of the Defendant's land, and the five physical features referred to in the amended summons are interrelated. That each of the five physical features specified in the amended summons exists separately does not render the use of each a separate offence given the nature of the charge. No duplicity arises and no election is needed. Contrary to the Defendant's submission there is no need to consider an exception to the rule against duplicity whereby separate acts may be able to be charged as a single criminal enterprise. That is not the nature of this charge. 5. In Kiangatha a single charge of water pollution which identified the whole of a road project which crossed several water courses was held to be duplicitous. Water pollution offences were found to arise every time a different water body (the numerous gullies crossed by a road) was polluted. The findings in that matter have no application to the different charge here. The manner of the breach of conditions of development consent the subject of the amended summons is of an entirely different character to the water pollution offence in Kiangatha. 6. That the Defendant submits it does not have the option of pleading guilty to one or some of the uses of the five physical features as a basis for arguing duplicity is irrelevant. It follows that I agree with the observations of Pepper J in Environment Protection Authority v Pullinger [2022] NSWLEC 143 at [58]. 7. Leave will be granted to the Prosecutor as already requested to withdraw each of the summonses in proceedings 2023/00451488 and 2023/00451489. Orders 1. The Court orders that: 1. Leave be granted to the Prosecutor to withdraw each of the summonses in proceedings 2023/00451488 and 2023/00451489. 2. In proceeding 2023/00451490 the Defendant's notice of motion dated 14 May 2024 is dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 August 2024