Reported Decision : (2001) 115 LGERA 56 Land and Environment Court of New South Wales CITATION : Wyong Shire Council v Thomas Hughes Homes Pty Limited [2001] NSWLEC 107 PROSECUTOR Wyong Shire Council PARTIES : DEFENDANT Thomas Hughes Homes Pty Limited FILE NUMBER(S) : 50056 of 1999 CORAM: Cowdroy J KEY ISSUES: Environmental Offences :- prosecution instituted by local council under the Protection of the Environment Operations Act 1997 ("PEO Act") in respect of offence committed under Environmental Offences and Penalties Act 1989 ("EOP Act") - whether a local council is 'Any person' within the meaning of s 219 of the PEO Act - whether leave was granted to institute the prosecution pursuant to s 13 of the EOP Act or s 219 of the PEO Act Environmental Offences and Penalties Act 1989 s 13 LEGISLATION CITED: Protection of the Environment Operations Act 1997 s 217, s 218, s 219 Land and Environment Court Act 1979 s 41 Anthony Hordern and Sons Ltd v The Amalgamated and Allied Trades Union of Australia (1932) 47 CLR 1 ; Australian Securities and Investments Commission v DB Management Pty Limited and Ors (2000) 1999 CLR 321 ; De L v Director-General, NSW Department of Community Services [No 2] (1997) 190 CLR 207 ; CASES CITED: Kingston & Anor v Keprose Pty Ltd (1987) 11 NSWLR 404; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 ; Refrigerated Express Lines (A/Asia) Pty Limited v Australian Meat and Livestock Corporation 29 ALR 333 ; Saraswati v The Queen (1991) 172 CLR 1 ; Wyong Shire Council v Thomas Hughes Homes Pty Limited [2000] NSWLEC 234 DATES OF HEARING: 25/05/01 DATE OF JUDGMENT: 06/13/2001 PROSECUTOR Mr W Davison SC SOLICITORS Abbott Tout LEGAL REPRESENTATIVES: DEFENDANT Mr P Tomasetti (Barrister) SOLICITORS Stephen Marks Solicitors JUDGMENT: IN THE LAND AND MATTER No. 50056 of 1999 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 13/6/01 Wyong Shire Council Prosecutor v Thomas Hughes Homes Pty Limited Defendant JUDGMENT [No 2] History 1. The prosecutor moves the Court ("the present motion") pursuant to Pt 15 r 9 of the Land and Environment Court Rules 1996 ("the Rules") to set aside the judgment Wyong Shire Council v Thomas Hughes Homes Pty Limited [2000] NSWLEC 234. The Registrar has not signed or sealed a minute of the final orders as provided by Pt 15 r 4 of the Rules and therefore the Court is empowered to entertain this motion. 2. These proceedings were originally instituted by a summons dated 6 September 1999 alleging an offence by the defendant of s 5 of the Environmental Offences and Penalties Act 1989 ("the EOP Act"). By notice of motion filed on 4 July 2000 ("the strike out motion") the defendant sought summary judgment and an order that the proceedings be dismissed. The strike out motion was successful. Basis for the present motion 3. The prosecutor relies upon the following ground in support of the present motion:- A. The judgment dated 6/12/2000 did not consider a substantial matter in dispute, namely whether a local government authority could institute, with leave, proceedings pursuant to section 219 of the Protection of the Environment Operations Act 1997, and whether such leave had been granted in the present case. 4. On the strike out motion the Court determined that the requirements necessary to enable the prosecutor to institute the prosecution pursuant to s 217 or s 218 of the PEO Act were not satisfied. The Court did not refer to s 219 as it understood that the prosecutor acknowledged such provision to be inapplicable in view of its written submissions concerning s 219 which stated:- (12) Leave need not to have been granted because the prosecutor already had standing pursuant to s 217 and s 218 of the Act. Section 219 of the PEO Act 5. Section 219 relevantly provides as follows:- 219 Other persons may institute proceedings with leave of Land and Environment Court (1) Any person may institute proceedings in the Land and Environment Court for an offence against this Act or the regulations if the Court grants the person leave to bring the proceedings. (2) The Land and Environment Court is not to grant leave unless satisfied that: (a) the EPA has decided not to take any relevant action (as defined in subsection (3)) in respect of the act or omission constituting the alleged offence or has not made a decision on whether to take such action within 90 days after the person requested the EPA to institute the proceedings, and (b) the EPA has been notified of the proceedings, and (c) the proceedings are not an abuse of the process of the Court, and (d) the particulars of the offence disclose, without any hearing of the evidence, a prima facie case of the commission of the offence. (3) Not relevant 6. To enable the prosecutor to rely upon s 219 the prosecutor must establish that it is 'Any person' for the purposes of s 219(1) to whom the Court grants leave to bring the proceedings. Such leave is not to be granted unless the Environment Protection Authority ("the EPA") has decided not to take action in respect of 'the alleged offence' or has not made a decision about whether to take action within 90 days of being requested to do so and the EPA has been notified of the intended proceedings. Defendants s219 submissions. 7. It was submitted by the defendant that the prosecutor could not rely upon s 219 to institute the prosecutions because s 218 gives specific power to a local authority to institute proceedings for an offence under the PEO Act. The defendant submitted that the maxims of statutory interpretation, 'generalia specialibus non derogant' and 'expressum facit cessare tacitum', and the principle enunciated by the High Court of Australia in Anthony Hordern and Sons Ltd v The Amalgamated and Allied Trades Union of Australia (1932) 47 CLR 1 at 7 per Gavin Duffy CJ and Dixon J, applied. Such principle is stated as follows:- When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power. 8. The above passages were quoted and followed by McHugh J (with whom Toohey J agreed) in Saraswati v The Queen (1991) 172 CLR 1 at 23-24. 9. As a second submission the defendant relied upon another complementary principle of statutory construction that if a general provision is repugnant to a provision dealing with a particular subject matter the latter prevails to the extent of that repugnancy and the general provision will be inapplicable to the subject matter of the special provision (see Refrigerated Express Lines (A/Asia) Pty Limited v Australian Meat and Livestock Corporation (1979-1980) 29 ALR 333 at 347 per Deane J). 10. As a third ground for the challenge, the defendant submitted that the clear statutory intent of s 219 was to enable persons, other than the EPA and local authorities, to institute proceedings in respect of an alleged offence under the PEO Act. The defendant submitted that the heading to the section, 'Other persons may institute proceedings with the leave of the Land and Environment Court', could be used to establish the meaning of this provision if the ordinary meaning of the section was ambiguous or obscure as provided by s 34(1)(b) of the Interpretation Act 1987. 11. Finally the defendant made the following submission:- 23. If leave was sought, it appears upon the face of the evidence contained in the affidavit of Mr Berveling sworn 6 September 1999 that leave was sought pursuant to s 13 of the EOP Act, a provision which had been repealed. 24. In any event, proceedings under s 219 cannot be instituted without leave of the Court and such leave either has not or ought not have been granted for the institution of the subject proceedings. Non compliance by the prosecutor with s 219 of the PEO Act a) A council is not 'Any person' 12. Where the legislature has provided a specific source of power to a local council to bring a prosecution under ss 217 and 218 of the PEO Act such a council is not 'Any person' who can apply for the leave of the Court to initiate a prosecution pursuant to the general provision namely s 219 (see Anthony Hordern and Sons Ltd v The Amalgamated and Allied Trades Union of Australia; Saraswati v R). The term 'Any person' in s 219 impliedly excludes the EPA and a local authority from initiating a prosecution and therefore carries a qualified meaning different to the ordinary meaning such words convey. To permit such authorities to be regarded as 'Any person' would lead to a result which would, in view of the specific provisions of s 217 and s 218 of the PEO Act, be 'manifestly absurd' or 'unreasonable' within the meaning of s 34(1)(b)(ii) of the Interpretation Act 1987. In these circumstances, the heading to s 219, as an extrinsic aid to interpretation, assists in the conclusion that the section was intended by Parliament to provide for the institution of proceedings by 'Other persons' namely a person other than the EPA or a local council. 13. One of the foreshadowed benefits of the PEO Act was identified in the second reading speech of the responsible Minister (Hansard, Legislative Assembly, 13 November 1997, page 1832) in relation to the Bill which was ultimately passed as the PEO Act. The Minister said inter alia as follows:- A very important feature of the bill is the way in which it clearly sets out the responsibilities of the EPA and local councils which will improve administrative efficiency. In general, the EPA will be responsible for three kinds of activities: activities listed on the schedule to the bill, being activities with regional or significant potential for environmental impact; any activity in relation to which a licence to regulate water pollution is issued; and any activities carried out by public authorities or the State. Local councils will be responsible for local activities within their council area. This ensures there will be one regulator for any particular activity. This represents a real improvement on the existing situation under the Clean Air Act and the Noise Control Act, which allow both the EPA and councils to regulate the same activity or premises for different purposes. Clearly delineating the roles of the EPA And local councils will avoid duplication, minimise confusion and make sure that resources are properly targeted to achieve the best environmental outcomes in the most effective way. The second reading speech highlights the intention of the Parliament to distinguish between the responsibilities of the EPA and a local council. More specifically, the PEO Act clearly intended that the ' appropriate regulatory authority ' must initiate prosecution under ss 217 and 218 of the PEO Act. It is the intention of Parliament which must be ascertained in construing the terms of a statute ( Kingston & Anor v Keprose Pty Ltd (1987) 11 NSWLR 404). A logical construction of the PEO Act leads to the conclusion that an appropriate regulatory authority cannot bring a prosecution under any other section. 14. The Court's conclusion is reinforced by two recent decisions of the High Court of Australia. In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 384 the majority (McHugh, Gummow, Kirby and Hayne JJ) said:- Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the cannons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning. 15. In Australian Securities and Investments Commission v DB Management Pty Limited and Ors (2000) 199 CLR 321 at 338 the above principle was approved by the majority (Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ) who said:- It may be added that, if a party contends that a provision, by reason of such considerations, should not be given its literal meaning, then such a contention may lack force unless accompanied by some plausible formulation of an alternative legal meaning. In this instance, it is the juxtaposition of ss 217, 218 and 219 which satisfies the Court that the only plausible legal meaning for the words ' any person' in s 219 excludes the EPA and a local council. b) Absence of leave: Prosecutor's submissions 16. The prosecutor submits that it obtained leave pursuant to s 13(2A) of the EOP Act on 6 September 1999 when Talbot J made an order requiring the defendant to appear before the Court. Section 13 of the EOP Act relevantly provides:- (1) Proceedings for an offence against this Act may be instituted only with the written consent of: (a) the Environment Protection Authority, or (b) a member of the staff of that Authority authorised in writing by that Authority for the purposes of this subsection. (2) (Repealed) (2A) Subsection (1) does not apply to the institution of proceedings in the land and Environment Court for an offence against this Act by a person if the Court grants the person leave to bring the proceedings. The Court is not to grant leave unless satisfied that:- (a) the Environment Protection Authority has decided not to take any relevant action (as defined in subsection (2B)) in respect of the act or omission constituting the alleged offence against this Act or has not made a decision on whether to take such action within 90 days after the person applied to the authority for consent to institute the proceedings, and (b) the Environment Protection Authority has been notified of the proceedings, and (c) the proceedings are not an abuse of the process of the Court, and (d) the particulars of the offence disclose, without any hearing oft the evidences, a prima facie case of the commission of the offence against this Act. 17. The EOP Act was repealed on 1 July 1999 by the PEO Act. However pursuant to cl 17(1) of the Protection of the Environment Operations (Savings and Transitional) Regulation 1998 ("the PEO Regulation") prosecutions for offences committed under the repealed EOP Act may be continued or instituted under the PEO Act. Clause 17(1) of the PEO Regulation provides:- (1) Parts 8.2 and 8.4 of the Act extend (subject to this clause) to proceedings in connection with a repealed Act in respect of offences committed against a repealed Act or regulation under a repealed Act before its repeal or in respect of any related matter that continues to have force or effect. This sub-clause applies whether the proceedings were pending on the commencement of the Act or whether the proceedings are instituted after that commencement. The prosecutor relies upon the transitional provisions in support of the submission that, having obtained a grant of leave pursuant to the provisions of s 13 of the EOP Act, it was entitled to pursue those proceedings as if it were a grant of leave pursuant to s 219. The defendant's submissions 18. The transcript of the hearing on 30 October 2000 makes it plain that the prosecutor claims to have been granted leave pursuant to s 13(2A) of the EOP Act. The defendant submits that any grant of leave obtained by the prosecutor under that section is invalid because the EOP Act had been repealed on 1 July 1999, two months prior to the institution of the proceedings. 19. Secondly the defendant submits that the correspondence between the prosecutor and the EPA does not identify any 'alleged offence' as required by s 219(2). Findings: absence of leave 20. Section 41 of the Land and Environment Court Act 1979 ("the LEC Act") relevantly provides:- 41 (1) Upon an application being made by any person (in this Division referred to as the "prosecutor") in accordance with the rules, a Judge shall make an order: (a) ordering any person alleged in the application to have committed an offence punishable in the Court in its summary jurisdiction to appear at a time and place specified in the order to answer to the offence charged in the order; or (b) not relevant (2) An order under subsection (1) may be made ex parte. (3) not relevant (4) not relevant 21. Accordingly when any prosecution is instituted, s 41 of the LEC Act requires the prosecutor to obtain an order of the Court requiring the defendant to appear to answer the charge. However such requirement is entirely different to the requirement for leave envisaged by s 219. The latter section prescribes specific criteria of which the Court must be satisfied to enable a person to obtain a grant of leave. There is no evidence upon the record of the Court that leave was sought or obtained either pursuant to s 13(2A) of the EOP Act or of s 219. The notes on the Court file show that an affidavit of Neil White sworn 12 August 1999 and of Robyn McKenzie sworn 16 August 1999 were filed on behalf of the prosecutor together with an order and summons. The record does not disclose that leave pursuant to s 13(2A) of the EOP Act or pursuant to s 219 was either sought or granted. The Court is satisfied that Talbot J made the required order under s 41 of the LEC Act but did not grant leave as claimed by the prosecutor. 22. The prosecutor alleged as a subsidiary matter that the defendant had not argued that leave was absent, but rather that the leave was defective. However such submission is contrary to the written submissions of the defendant on the strike out motion. Further, the onus of satisfying the statutory requirements necessary to commence a prosecution rests with the prosecutor. 23. In view of this finding it is unnecessary to consider the remaining issues raised by the defendants. Conclusion 24. The prosecutor is not 'Any person' for the purpose of s 219 nor has there been any grant of leave as required by this section. Accordingly, s 219 cannot be relied upon by the prosecutor to support the prosecution and there is no reason to alter the findings made in the judgment delivered on 6 December 2000. Orders 25. The Court orders that:- 1. The amended notice of motion of the prosecutor filed on 14 February 2001 be dismissed. 2. Costs be reserved. 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.