Land and Environment Court of New South Wales CITATION : Newcastle City Council v Pace Farm Egg Products Pty Limited [2005] NSWLEC 139 PROSECUTOR: Newcastle City Council PARTIES : DEFENDANT: Pace Farm Egg Products Pty Limited FILE NUMBER(S) : 50071 of 2004 CORAM: Pain J KEY ISSUES: Practice and Procedure :- amendment of summons - whether duplicitous - whether waters alleged to be polluted are an essential legal element of the offence under the Protection of the Environment Operations Act 1997 s 120 LEGISLATION CITED: Protection of the Environment Operations Act 1997 s 120, s 216 Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78; Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79; CASES CITED: Environment Protection Authority v CSR Ltd trading as CSR Woodpanels (2001) 114 LGERA 217; McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority (No 2) (2002) 54 NSWLR 39; Romeyko v Samuels (1972) 2 SASR 529 DATES OF HEARING: 21/02/2005 EX TEMPORE JUDGMENT DATE : 02/22/2005 PROSECUTOR: Mr M Craig QC and Mr J Maston (barrister) SOLICITORS: Sparke Helmore LEGAL REPRESENTATIVES: DEFENDANT: Mr T Hale SC and Mr S Docker (barrister) SOLICITORS: Paul Hines JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Pain J 22 February 2005 50071 of 2004 Newcastle City Council v Pace Farm Egg Products Pty Limited EX TEMPORE JUDGMENT 1 Her Honour: This is a prosecution for the alleged pollution of waters at Warabrook, a suburb of Newcastle. The Prosecutor has filed a Notice of Motion dated 12 January 2005 seeking leave to amend the charge and certain particulars in the order and summons. These proposed amendments were notified in late November 2004 to the Defendant. This Notice of Motion was then filed and was returnable on 7 February 2005. It was then stood over to the first day of this hearing. 2 I note by way of background that this prosecution is pursuant to s 120 of the Protection of the Environment Operations Act 1997 ("the POEO Act") which states that: (1) A person who pollutes any waters is guilty of an offence. (2) In this section: pollute waters includes cause or permit any waters to be polluted. 3 "Waters" is defined as the whole or any part of: (a) any river, stream, lake, lagoon, swamp, wetlands, unconfined surface water, natural or artificial watercourse, dam or tidal waters (including the sea), or (b) any water stored in artificial works, any water in water mains, water pipes or water channels, or any underground or artesian water. 4 "Water pollution" is defined as: (a) placing in or on, or otherwise introducing into or onto, waters (whether through an act or omission) any matter, whether solid, liquid or gaseous, so that the physical, chemical or biological condition of the waters is changed, or … and, without affecting the generality of the foregoing, includes: (d) placing any matter (whether solid, liquid or gaseous) in a position where: (i) it falls, descends, is washed, is blown or percolates, or (ii) it is likely to fall, descend, be washed, be blown or percolate, into any waters, onto the dry bed of any waters, or into any drain, channel or gutter used or designed to receive or pass rainwater, floodwater or any water that is not polluted, or (e) placing any such matter on the dry bed of any waters, or in any drain, channel or gutter used or designed to receive or pass rainwater, floodwater or any water that is not polluted, if the matter would, had it been placed in any waters, have polluted or have been likely to pollute those waters. 5 The Defendant does not oppose the change to the description of the pollutant in the amended summons but opposes the rest of the amendments. Essentially the disputed part of the amended pleadings changes the identity of the waters allegedly polluted. Under the current pleadings there is only one body of water identified, namely the Warabrook Lagoon (Upper Pond) within the Warabrook Wetland Reserve ("the Warabrook Lagoon"). The amendments introduce two other "waters", being the stormwater drainage pipes and pits between the Defendant's land and the Warabrook Lagoon, and separately the drainage pipes and pits on the Defendant's land. The charge in the first prayer of the summons if amended will change from the pollution of waters, being the Warabrook Lagoon, to the pollution of waters at Warabrook so that a general locality is identified but not particular waters. 6 These amendments are opposed by the Defendant because they are said to be duplicitous. The amended pleadings contain more than one charge and therefore are time barred as there is a 12 month limitation period under s 216 of the POEO Act and that time has now expired. I should note the offence was said to occur on 3 October 2003. 7 The Prosecutor argued the amendments do not expand the pleadings beyond one charge but are simply further particulars in relation to the single act of polluting waters which it alleges caused pollution in waters on and off the Defendant's premises at Warabrook, and therefore the amendments can be made. Finding 8 The key issue here is whether the particulars provided in the amended summons in relation to the waters alleged to be polluted are an essential legal element of the offence or a part of the factual ingredient of the offence. The latter is more amenable to amendment than the former. If the amendment is in relation to the former, the amendments are arguably statute barred. 9 I was referred by the Defendant to the decision of Ipp AJA (with whom Kirby and Howie JJ agreed) in McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority (No 2) (2002) 54 NSWLR 39 at 42 where he held that the legal elements of the offence are those matters that as a matter of law must be established for the offence to be made out. These legal elements may be established by different factual ingredients. The Prosecutor here has argued that the description of waters was a factual ingredient not a legal ingredient. 10 However, I agree with the argument of the Defendant based on McConnell Dowell (No 2) that the nature of the waters alleged to be polluted is an essential legal ingredient of a charge under s 120(1) of the POEO Act. While the debate in McConnell Dowell (No 2) focused on whether "polluting" was part of the essential legal ingredients being those matters that must be established for the offence to be made out, the findings aptly apply in my view to the identity of the "waters" which are alleged to be polluted. 11 As a so called "result" offence, as described in Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78 and Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79, the offence of polluting waters occurs when the pollution occurs in the relevant "waters" in this case. It follows that each of the waters identified in the amended summons constitutes a separate offence in my view. 12 This is confirmed by the Prosecutor stating that its case will be successful if either the Defendant admitted polluting any of the three identified "waters" or the Prosecutor proved its case in relation to any of these. This submission seems to be at odds with the contention that it was not however open to the Defendant to plead guilty to polluting one of the three waters particularised in the amended pleadings, were I minded to grant the amendment. 13 The Prosecutor relied on the judgment of Pearlman J in Environment Protection Authority v CSR Ltd trading as CSR Woodpanels (2001) 114 LGERA 217. That case focused on the act of pollution and whether it was a provision which penalises one or more acts thereby creating two offences, or was penalising an act which possesses one or more forbidden characteristics adopting the formulation of Bray CJ in Romeyko v Samuels (1972) 2 SASR 529. This case does not address the formal pleadings before me and I did not find these authorities of much assistance in this particular case. 14 It follows that I consider the Prosecutor's Notice of Motion dated 12 January 2005 ought be refused, except that part of the amended summons which relates to the description of the pollutant. 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.