Hornsby Shire Council v. Alan Charles Winsloe [1998] NSWLEC 108

Land and Environment Court of New South Wales CITATION : Hornsby Shire Council v. Alan Charles Winsloe [1998] NSWLEC 108 PROSECUTOR Hornsby Shire Council PARTIES : DEFENDANT Aland Charles Winsloe FILE NUMBER(S) : 50039 of 1998 CORAM: Bignold J KEY ISSUES: :- Environmental Planing and Assessment Act 1979 LEGISLATION CITED: Land and Environment Court Act 1970 Supreme Court (Summary Justification) Act 1967 CASES CITED: McGerty v. Dairy Farmers Co-operative Ltd (11 August 1989) DATES OF HEARING: 08/07/98 DATE OF JUDGMENT: 08/20/1998 APPLICANT Mr M Wright Michell Sillar LEGAL REPRESENTATIVES: RESPONDENT Mr J Maston Baldock Stacy & Niven JUDGMENT: <! >INTRODUCTION On 13 March <A href=" http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/nsw/NSWLEC/1998/191.html?query=%7E%201998#disp6 " name=disp7><IMG alt="<<" border=0 src="HORNSBY SHIRE COUNCIL v_ ALAN CHARLES WINSLOE [1998] NSWLEC 191 (20 August 1998)_files/contextup.gif"></A>1998<A href=" http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/nsw/NSWLEC/1998/191.html?query=%7E%201998#disp8 "><IMG alt=">>" border=0 src="HORNSBY SHIRE COUNCIL v_ ALAN CHARLES WINSLOE [1998] NSWLEC 191 (20 August 1998)_files/contextdown.gif"></A> the Prosecutor filed in Court a summons (a copy of which is annexed hereto marked "A") claiming an order from the Court pursuant to s.41 of the <A href=" http://www.austlii.edu.au/au/legis/nsw/consol_act/laeca1979274/ ">Land and Environment Court Act 1979</A> (the Court Act). On the same day, Talbot J made ex parte the Order (a copy of which is annexed hereto and marked B) ordering the Defendant to appear before the Court on 17 April <A href=" http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/nsw/NSWLEC/1998/191.html?query=%7E%201998#disp7 " name=disp8><IMG alt="<<" border=0 src="HORNSBY SHIRE COUNCIL v_ ALAN CHARLES WINSLOE [1998] NSWLEC 191 (20 August 1998)_files/contextup.gif"></A>1998<A href=" http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/nsw/NSWLEC/1998/191.html?query=%7E%201998#disp9 "><IMG alt=">>" border=0 src="HORNSBY SHIRE COUNCIL v_ ALAN CHARLES WINSLOE [1998] NSWLEC 191 (20 August 1998)_files/contextdown.gif"></A> to answer the charge alleged against him, as formulated in the order. On 17 April <A href=" http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/nsw/NSWLEC/1998/191.html?query=%7E%201998#disp8 " name=disp9><IMG alt="<<" border=0 src="HORNSBY SHIRE COUNCIL v_ ALAN CHARLES WINSLOE [1998] NSWLEC 191 (20 August 1998)_files/contextup.gif"></A>1998<A href=" http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/nsw/NSWLEC/1998/191.html?query=%7E%201998#disp10 "><IMG alt=">>" border=0 src="HORNSBY SHIRE COUNCIL v_ ALAN CHARLES WINSLOE [1998] NSWLEC 191 (20 August 1998)_files/contextdown.gif"></A>, the Defendant appeared by Counsel before Talbot J who by consent stood the matter over for plea or mention on 8 May <A href=" http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/nsw/NSWLEC/1998/191.html?query=%7E%201998#disp9 " name=disp10><IMG alt="<<" border=0 src="HORNSBY SHIRE COUNCIL v_ ALAN CHARLES WINSLOE [1998] NSWLEC 191 (20 August 1998)_files/contextup.gif"></A>1998<A href=" http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/nsw/NSWLEC/1998/191.html?query=%7E%201998#disp11 "><IMG alt=">>" border=0 src="HORNSBY SHIRE COUNCIL v_ ALAN CHARLES WINSLOE [1998] NSWLEC 191 (20 August 1998)_files/contextdown.gif"></A>. At a mention before Talbot J on 22 May <A href=" http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/nsw/NSWLEC/1998/191.html?query=%7E%201998#disp10 " name=disp11><IMG alt="<<" border=0 src="HORNSBY SHIRE COUNCIL v_ ALAN CHARLES WINSLOE [1998] NSWLEC 191 (20 August 1998)_files/contextup.gif"></A>1998<A href=" http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/nsw/NSWLEC/1998/191.html?query=%7E%201998#disp12 "><IMG alt=">>" border=0 src="HORNSBY SHIRE COUNCIL v_ ALAN CHARLES WINSLOE [1998] NSWLEC 191 (20 August 1998)_files/contextdown.gif"></A>, the Court was informed that the Defendant proposed to move for the summary dismissal of the proceedings. On 12 June <A href=" http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/nsw/NSWLEC/1998/191.html?query=%7E%201998#disp11 " name=disp12><IMG alt="<<" border=0 src="HORNSBY SHIRE COUNCIL v_ ALAN CHARLES WINSLOE [1998] NSWLEC 191 (20 August 1998)_files/contextup.gif"></A>1998<A href=" http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/nsw/NSWLEC/1998/191.html?query=%7E%201998#disp13 "><IMG alt=">>" border=0 src="HORNSBY SHIRE COUNCIL v_ ALAN CHARLES WINSLOE [1998] NSWLEC 191 (20 August 1998)_files/contextdown.gif"></A> the Defendant filed in Court a Notice of Motion claiming the following relief: "1. that the charge in the order and summons dated 13 March <A href=" http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/nsw/NSWLEC/1998/191.html?query=%7E%201998#disp12 " name=disp13><IMG alt="<<" border=0 src="HORNSBY SHIRE COUNCIL v_ ALAN CHARLES WINSLOE [1998] NSWLEC 191 (20 August 1998)_files/contextup.gif"></A>1998<A href=" http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/nsw/NSWLEC/1998/191.html?query=%7E%201998#disp14 "><IMG alt=">>" border=0 src="HORNSBY SHIRE COUNCIL v_ ALAN CHARLES WINSLOE [1998] NSWLEC 191 (20 August 1998)_files/contextdown.gif"></A>, be quashed or struck out in whole or in part for uncertainty, duplicity on its face, and/or as disclosing no offence; 2. that so much of the charge in the summons as goes beyond the order of the Court made 13 March <A href=" http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/nsw/NSWLEC/1998/191.html?query=%7E%201998#disp13 " name=disp14><IMG alt="<<" border=0 src="HORNSBY SHIRE COUNCIL v_ ALAN CHARLES WINSLOE [1998] NSWLEC 191 (20 August 1998)_files/contextup.gif"></A>1998<A href=" http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/nsw/NSWLEC/1998/191.html?query=%7E%201998#disp15 "><IMG alt=">>" border=0 src="HORNSBY SHIRE COUNCIL v_ ALAN CHARLES WINSLOE [1998] NSWLEC 191 (20 August 1998)_files/contextdown.gif"></A> be quashed or struck out." On that occasion, Talbot J directed that the Motion be set down for hearing, together with any Motion that the Prosecutor might file within the following days seeking to amend the charge. On 18 June <A href=" http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/nsw/NSWLEC/1998/191.html?query=%7E%201998#disp14 " name=disp15><IMG alt="<<" border=0 src="HORNSBY SHIRE COUNCIL v_ ALAN CHARLES WINSLOE [1998] NSWLEC 191 (20 August 1998)_files/contextup.gif"></A>1998<A href=" http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/nsw/NSWLEC/1998/191.html?query=%7E%201998#disp16 "><IMG alt=">>" border=0 src="HORNSBY SHIRE COUNCIL v_ ALAN CHARLES WINSLOE [1998] NSWLEC 191 (20 August 1998)_files/contextdown.gif"></A>, the Prosecutor, by Notice of Motion, sought leave to file an "amended summons". A copy of the amended summons is annexed hereto marked "C". Both the Defendant's Motion and the Prosecutor's Motion were heard together and each party responded to the respective Motions by opposing the relief respectively claimed. The two Motions are similar to the Motions that were the subject of a recent determination by Talbot J in Hornsby Shire Council v. Denise Clyne (unreported 30 June <A href=" http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/nsw/NSWLEC/1998/191.html?query=%7E%201998#disp15 " name=disp16><IMG alt="<<" border=0 src="HORNSBY SHIRE COUNCIL v_ ALAN CHARLES WINSLOE [1998] NSWLEC 191 (20 August 1998)_files/contextup.gif"></A>1998<A href=" http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/nsw/NSWLEC/1998/191.html?query=%7E%201998#disp17 "><IMG alt=">>" border=0 src="HORNSBY SHIRE COUNCIL v_ ALAN CHARLES WINSLOE [1998] NSWLEC 191 (20 August 1998)_files/contextdown.gif"></A>). That case involves a charge against the owner of the property of an offence against s.125 of the EP&A Act 1979 (the EP&A Act ) arising out of the same incident that has given rise to the present charge brought against the person who is alleged to have cut down the trees growing on the owner's property. In Clyne, his Honour dismissed the Defence Motion that the charge be struck out on the grounds that it was incurably bad for failing to charge the defendant with an identifiable offence under s.125 of the EP&A Act. His Honour also granted leave to the Prosecutor to amend the summons to eliminate duplicity or uncertainty in the charge. The immediate difference between the two cases lies in the fact that in Clyne his Honour focussed exclusive attention on the summons (without any reference being made to the order made pursuant to s.41 of the Court Act) whereas in the present case, the Defendant has founded his case on the charge as formulated in the s.41 Order. Except for that difference, the present case bears many striking similarities to Clyne e.g. (i) the summons filed in that case formulated the charge in virtually identical terms to the summons filed in the present case; and (ii) the prosecutor's Motion to amend the summons in that case is virtually in identical terms to the Motion to amend the summons filed in the present case. To the extent that Clyne determined the same or similar issues as those which are raised in the present Motions, that decision would normally be thought to govern the present case. However, no express submission was advanced that it did or did not so govern the present case. This, I think, reflects the present parties' perception that a crucial issue to be determined in the present case, which did not arise in Clyne, is whether the charge alleging the offence is confined to the formulation of it in the s.41 Order. This is the principal submission of the Defendant, and its acceptance would probably result in a factual difference of such significance from the facts in Clyne as to distinguish that case from the present. Moreover, and as will hereafter appear, the present case has raised a point concerning the validity of the charge which does not appear to have been raised in Clyne. Accordingly, Clyne does not provide the solvent to all of the matters in issue in the present case. B. THE RELATIONSHIP BETWEEN THE COMPETING MOTIONS The relationship between the competing Motions is such that if the Prosecutor obtains leave to amend the charge, the Defendant's Motion for summary dismissal is necessarily unavailing. However, the Defendant argues that the charge is incapable of amendment because (i) the charge is "incurably bad" in the sense that it does not disclose an offence known to the law and for this reason is not cured by s43 of the Court Act; and (ii) the amendment sought, in truth, constitutes the bringing by the Prosecutor of a new charge at a time which is outside the 6 months statutory limitation period prescribed by s127(5) of the <A href=" http://www.austlii.edu.au/au/legis/nsw/consol_act/epaaa1979389/ ">Environmental Planning and Assessment Act</A> <A href=" http://www.austlii.edu.au/au/legis/nsw/consol_act/epaaa1979389/ ">1979</A> (EP&A Act). In order to resolve the competing Motions, the following questions must be determined:- (i) What is the charge? (ii) Is the charge "incurably bad" inasmuch as it does not disclose an offence known to the law? (iii) Does s.43 of the Court Act save or cure the charge? (iv) Is the charge capable of being cured by amendment? (v) Is the charge capable of the amendment sought by the Prosecutor? In so propounding the relevant questions, I have deliberately excluded the Defendant's claims for summary dismissal on the grounds of (i) duplicity and (ii) uncertainty, since it is well established that these grounds, even if made out, do not justify or require summary dismissal of a charge (at least at this early stage in the proceedings) but rather they require the Prosecutor to take appropriate remedial action to eliminate the duplicity and the uncertainty: see Johnson v. Miller (1937) <A href=" http://www.austlii.edu.au/au/cases/cth/high_ct/59clr467.html ">59 CLR 467</A>; Stanton v. Abernathy (1990) 19NSWLR 656 and Cooper v. Coffs Harbour City Council (1997) 97 LGERA 125. This is what occurred in Clyne. As I understand the Defendant's argument, there is no claim of duplicity or uncertainty in the charge as formulated in the Prosecutor's amended summons, so that if the Prosecutor is given leave to amend the charge in the manner formulated in the amended summons, that charge is not open to objection on the ground of duplicity or uncertainty. However, even in its amended form the charge must still survive the Defence attack on the legal validity of the charge. C. WHAT IS THE CHARGE In my judgment, it is inevitable that the charge in the present case be held to be that formulated in the Order made pursuant to s.41 of the Court Act. That section relevantly provides as follows: (i)Upon an application being made by any person....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.... to answer to the offence charged in the order; ........." That Order formulates the charge by alleging: "an offence against the Environmental Planning and Assessment Act 1979, in that on or about 1 October 1997 at Dural in the State of New South Wales, you did without authority, prune lop and trees protected by Council's Tree Preservation Order created pursuant to the Hornsby Shire Council Environmental Plan, 1994." In amplification of the conclusion that the charge is as formulated in the <A href=" http://www.austlii.edu.au/au/legis/nsw/consol_act/epaaa1979389/s41.html ">s.41</A> order, it is necessary to examine the relationship between the order and the summons claiming the order, for as will presently be seen, there is an obvious textual disconformity between the two documents in the manner in which they formulate the relevant offence. The Rules of Court dealing with applications for orders pursuant to s.41 of the Court Act are contained in Part 6 Rule 2, Subrule (1) providing that Division 2 of Part 75 of the Supreme Court Rules 1970 "is taken to form part of these rules and to apply to proceedings in class 5 of the Court's jurisdiction" with necessary adaptations. By s21 of the Court Act, the Court has "jurisdiction to hear and dispose of in a summary manner" various enumerated proceedings including in paragraph (f): "proceedings under Section 127 of the Environmental Planning and Assessment Act 1979". Section 127(1) of the <A href=" http://www.austlii.edu.au/au/legis/nsw/consol_act/epaaa1979389/ ">Environmental Planning and Assessment</A> <A href=" http://www.austlii.edu.au/au/legis/nsw/consol_act/epaaa1979389/ ">Act 1979</A> (the EP&A Act) relevantly provides that proceedings for an offence against the Act may be taken before this Court in its summary jurisdiction. Subsection (5) provides that proceedings in the Court for such an offence "may be commenced not later than 6 months after the offence was alleged to be committed". Section 125(1) deals with offences against the Act provides as follows: "125 (1) Where any matter or thing is by or under this Act other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Director, a council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act." Division 2 of Part 75 of the Supreme Court Rules (which is taken to form part of the Rules of this Court) includes Rule 6 (which applies a number of specified rules (including those contained in Part 20 (Amendment)) to proceedings governed by Division 2) and Rule 7 (Commencement of proceedings). Rule 7 is in the following terms: "Proceedings for an offence under any Act which may be taken before the Court in its summary jurisdiction shall be commenced in the Court by summons claiming an order under section 4 of the subject Act in respect of the offence and claiming that the defendant be dealt with according to law for the commission of the offence". (By virtue of Part 6 Rule 2(1) of the Rules of this Court, Rule 7 of Division 2 of Part 75 of the Supreme Court Act applies to this Court as if the reference to the Supreme Court were a reference to this Court and as if the reference to the <A href=" http://www.austlii.edu.au/au/legis/nsw/consol_act/scja1967425/ ">Supreme Court (Summary</A> <A href=" http://www.austlii.edu.au/au/legis/nsw/consol_act/scja1967425/ ">Jurisdiction) Act 1967</A> were a reference to the corresponding provision contained in Division 5 of Part 4 of the Court Act. Thus, the reference to s4 of the former Act is taken as a reference to s.41 of the Court Act.) Rule 8 of Part 75 of the Supreme Court Rules provides as follows: "When the prosecutor files the summons, he shall lodge with the registrar two or more copies of a minute of the order which he claims" In McGerty v. Dairy Farmers Co-Operative Limited (unreported 11 August 1989), the Court of Criminal Appeal held that proceedings were commenced in the summary jurisdiction of this Court upon the filing in the Court Registry of a summons, applying for an order pursuant to s.41 of the Court Act. The Chief Justice, in his judgment deals with the question of the method and time for the commencement of proceedings in class 5 of this Court's jurisdiction in the following passages: "The question of the method and time of commencement of the present proceedings is to be resolved as a matter of the construction of the Rules of this Court, which are, by virtue of the provisions of rule 2 part 6 of the Land and environment Court Rules, deemed to form part of the Rules of the Land and Environment Court. The provisions of Part 75 rules 6, 7, 8 and 9 and Part 7 rule 6 of this Court, to my mind, make it clear that the method of commencement of proceedings such as these is by filing in court a summons. The time of commencement is the time of filing the summons. The scheme is that when an order to a person that he attend court to answer a particular charge within the Court's summary jurisdiction is made it issues in response to the filing of a summons seeking such an order. The Rules require that the summons be filed and that the prosecutor shall also lodge with the Registrar copies of a minute of the order sought. An application for the order may be made ex parte. It is a matter for the Court, having regard to the exigencies of its business, to decide exactly when and where a judge will consider the summons and any supporting material. An order may or may not be made on the day on which the summons is filed, but where an order is made then, should a question arise as to when the proceedings were commenced, the answer to that question is that they were commenced when the summons was filed." Applying that decision to the facts of the present case means that the present proceedings were commenced on 13 March <A href=" http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/nsw/NSWLEC/1998/191.html?query=%7E%201998#disp16 " name=disp17><IMG alt="<<" border=0 src="HORNSBY SHIRE COUNCIL v_ ALAN CHARLES WINSLOE [1998] NSWLEC 191 (20 August 1998)_files/contextup.gif"></A>1998<A href=" http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/nsw/NSWLEC/1998/191.html?query=%7E%201998#disp18 "><IMG alt=">>" border=0 src="HORNSBY SHIRE COUNCIL v_ ALAN CHARLES WINSLOE [1998] NSWLEC 191 (20 August 1998)_files/contextdown.gif"></A> when the summons claiming the order under s.41 of the Court Act was filed in the Court Registry. It was that act which enlivened the Court's jurisdiction to hear and dispose of the proceedings that had been thereby commenced. Moreover, conformably to the Rules of the Court (ie. the adopted Supreme Court Rules Part 75 Rule 8) the Prosecutor was required to lodge with the Registrar two or more copies of a minute of the order which was claimed. Although this was duly done, it is readily apparent that the minute of Order did not charge the Defendant with an offence in the same terms as were employed in the summons that commenced the proceedings. This immediately gives rise to the question of the legal consequences of the textual discrepancy or disconformity in the two documents. The material difference in the content of the two documents is readily appreciated by simple comparison between the two documents being Annexures A and B hereto. The differences can more easily be appreciated by setting forth the material words of the "Summons" with the counterpart, (if any) words of the "Order" being highlighted in brackets: the Defendant committed and caused to be committed (you committed) an offence against the <A href=" http://www.austlii.edu.au/au/legis/nsw/consol_act/epaaa1979389/ ">Environmental Planning and Assessment Act, 1979</A> <A href=" http://www.austlii.edu.au/au/legis/nsw/consol_act/epaaa1979389/s125.html ">section 125</A> (an offence against the Environmental Planning and Assessment Act 1979) whereby the Defendant pruned, lopped, cut down and/or removed and caused to be pruned, lopped, cut down and/or removed trees (you did without authority, prune, lop and trees) contrary to the Council's Tree Preservation Order created pursuant to clause 8 of the Hornsby Shire Council Environmental Plan 1994, published in the New South Wales Government Gazette 22 July 1994 (as amended) (protected by Council's Tree Preservation Order created pursuant to the Hornsby Shire Local Environmental Plan 1994). Apart from the differences involving the particularisation in the Summons of (i) the section of <A href=" http://www.austlii.edu.au/au/legis/nsw/consol_act/epaaa1979389/ ">the Act</A> alleged to be offended; (ii) the clause of the Local Environmental Plan pursuant to which the Tree Preservation Order was created; and (iii) the particular Government Gazette in which the Local Environmental Plan was published, the principal and material differences between the two documents is that the Summons formulates the offence in terms of (i) committing and causing to be committed the acts of (ii) pruning, lopping, cutting down and/or removal of trees (iii) contrary to the Tree Preservation Order, whereas the Order formulates the offence in terms of (i) committing the act of (ii) pruning, lopping, trees (iii) protected by the Tree Preservation Order (iv) without authority. Additional content contained in the Summons (but not in the Order) are particulars of:- (i) the place where the offence was alleged to have been committed; (ii) the trees that were alleged to have been cut down; and (iii) the trees that were alleged to have been pruned or lopped. Although, as I have held, as a consequence of construing <A href=" http://www.austlii.edu.au/au/legis/nsw/consol_act/epaaa1979389/s41.html ">s.41</A> of the Court Act, that the charge of the offence in the present case must be that formulated in the <A href=" http://www.austlii.edu.au/au/legis/nsw/consol_act/epaaa1979389/s41.html ">s.41</A> Order, it is apparent, on its face that that Order does not accurately reflect the alleged offence as formulated in the Summons. In these circumstances, the Prosecutor is prima facie entitled to amend the Order so that it accurately reflects the relevant content of the Summons so far as concerns the formulation of the charge. This conclusion, I think, is inevitable, given the mandatory language of s.41 which provides that upon application being made etc. the judge "shall make an order" ordering the defendant.... "to answer to the offence charged in the order" for it is obvious that the legislative intention is that any order made under s.41 adopt the same formulation of the charge as is adopted in the summons claiming the order, and the filing of which has enlivened the Court's jurisdiction. It is the summons that alleges the offence and it is the order issued in response to the summons that charges the Defendant with that offence. In these circumstances, there must be congruity between the alleged offence and the charge of that offence. In the present case, as I have shown, the Prosecutor, no doubt unintentionally, has formulated the charge in the minute of the s.41 Order in terms materially different from the terms employed in the Summons. In so doing, the Prosecutor has unintentionally failed to comply with the requirements of Part 75 Rule 8 of the Supreme Court Rules. However, the consequence of that failure, and the consequence of the disconformity in the formulation of the charge in the Summons and in the s.41 Order is not fatal. Indeed, s68(2) of the Court Act expressly provides that a relevant failure to comply with the requirements of <A href=" http://www.austlii.edu.au/au/legis/nsw/consol_act/epaaa1979389/ ">the Act</A> or of the rules shall be treated as an "irregularity" and "shall not nullify the proceedings, or any step taken in the proceedings, or any document, judgment or order in the proceedings". Here, there are two related failures of compliance-- (i) the Prosecutor's failure to comply with Supreme Court Rules Part 75, Rule 8; and (ii) the Court's failure to comply with <A href=" http://www.austlii.edu.au/au/legis/nsw/consol_act/epaaa1979389/s41.html ">s.41</A> of the LEC Act. Whereas s.68 of the Court Act deals generally with "any proceedings before the Court" and therefore applies to the present proceedings, s43 of the Court Act makes particular provision in respect of, inter alia, (i) the application for an order under <A href=" http://www.austlii.edu.au/au/legis/nsw/consol_act/epaaa1979389/s41.html ">s.41</A> and (ii) the order itself, by relevantly providing: "No objection shall be taken or allowed...........by reason of any alleged defect in it in substance or in form." The linking of ss.43 and 68 of the Court Act is consistent with approach taken by the Court of Criminal Appeal in Cooper - see especially at 132/133. Accordingly and without pre-empting consideration of the question later to be encountered as to whether the Prosecutor should at this point of time (which is beyond the statutory period of 6 months prescribed by s.127(5) of the EP&A Act for commencing the present proceedings) be granted leave to amend the Summons commencing the present proceedings, I can say at once that although the charge in the present case must, conformably to s.41 of the Court Act, be held to be the charge as formulated in that Order, where, as has been clearly demonstrated in the present case, that Order has not formulated the charge in accordance with the formulation contained in the relevant Summons, (the filing of which has enlivened the Court's jurisdiction) that failure or defect, either in form or substance, is excused by s.43 of the Court Act and is to be treated as an "irregularity" and not as a "nullity", and as such is readily capable of amendment by the operation of s68 of the Court Act. This conclusion does not involve any violation of the established principle of the criminal law (later to be discussed) that amendment beyond the statutory period for the commencement of proceedings must be refused where the effect of the amendment would be to allege a different offence from that previously alleged: Gilmour v. Midways Springwood Pty Ltd (1980) 33ALR 605. It follows that for the purposes of determining the remaining questions raised by the competing Motions the charge of the offence must be taken to be as formulated in the Summons commencing the present proceedings. (This conclusion leaves untouched the question whether the Prosecutor is entitled to amend the charge in the manner now sought in its Notice of Motion.) I should note that this conclusion would appear to involve no possible prejudice to the Defendant who has been served (conformably to Part 75 Rule 9 of the Supreme Court Rules) with (i) the s.41 Order; (ii) the Summons claiming the order; and (iii) the affidavits in support of the Summons. D. IS THE CHARGE INCURABLY BAD AS NOT DISCLOSING AN OFFENCE? Having identified the true content of the charge, the question arises whether it discloses any offence. The Defendant, in the course of argument, maintained that the charge was incurably bad whether the offence be as formulated in the s.41 Order or the Summons but candidly conceded that its argument would be the weaker if (as I have held) the charge is taken to adopt the formulation of the offence contained in the Summons. (Presumably the concession was based, in part, upon the fact that an identical charge survived legal challenge in Clyne. However, as I have noted earlier, there was no submission advanced to the effect that Clyne governed the result in the present proceedings.) The charge, on its face, alleges an offence against s125(1) of the EP&A Act the relevant terms of which I have earlier set forth. The legal ingredients of such an offence (and which are relevant to the present charge) are, in my judgment, fourfold, namely -- (i) doing a matter or thing; (ii) being a matter or thing that is forbidden to be done; (iii) where that prohibition (ie. the forbidding) is "by or under the EP&A Act"; and (iv) by a person offending against that prohibition. Ingredients (i), (ii) and (iv) need little elaboration in the present case. However, ingredient (iii) requires some exposition. It is to be noted that the relevant prohibition is to be found "by or under this Act". That phrase is not defined. A "prohibition by the Act" clearly enough is one that is found in the express and direct terms of the Act. A "prohibition under the Act" raises the question of what sources, other than the Act itself, are contemplated by the expression "under the Act". One such source would appear to be an environmental planning instrument made under the Act - see especially ss.24 and 26 of the EP&A Act. The relevant prohibition mandated "by the EP&A Act" is most obviously found in s.76 with each of its three subsections containing its own type of "prohibition". In the present case, it is sufficient to consider subsection (2) which provides as follows:- "Subject to this Act where an environmental planning instrument provides that development specified therein may not be carried out except with consent under this Act being obtained therefor, a person shall not carry out that development on land to which that provision applies unless-- (a) that consent has been obtained and is in force under this Act; and (b) the development is carried out in accordance with the provisions of any conditions subject to which that consent was granted and of that instrument." In applying s76(2) it may be necessary (as in the case of the present charge) to have regard to other provisions of the Act, notably s75(1) and s26(1)(e) and (f). which respectively provide as follows: "75 (1) In this Part, a reference to development includes a reference to any other act, matter or thing referred to in section 26 which is controlled by an environmental planning instrument." 26 (1)Without affecting the generality of section 24 or any other provisions of this Act, an environmental planning instrument may make provision for or in respect to any of the following: (e) protecting or preserving trees or vegetation; (f) controlling any act, matter or thing for or with respect to which provision may be made under paragraph (a) or (e);" Further, it is to be noted that "control" is given an expansionary definition in s.4(1) of the EP&A Act. Recently, in McDonagh v. Birdon Dreding Pty Limited (unreported 29 May <A href=" http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/nsw/NSWLEC/1998/191.html?query=%7E%201998#disp17 " name=disp18><IMG alt="<<" border=0 src="HORNSBY SHIRE COUNCIL v_ ALAN CHARLES WINSLOE [1998] NSWLEC 191 (20 August 1998)_files/contextup.gif"></A>1998<A href=" http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/nsw/NSWLEC/1998/191.html?query=%7E%201998#disp19 "><IMG alt=">>" border=0 src="HORNSBY SHIRE COUNCIL v_ ALAN CHARLES WINSLOE [1998] NSWLEC 191 (20 August 1998)_files/contextdown.gif"></A>), I had occasion to consider the relationship between ss125(1) and 76(2) of the EP&A Act. That case involved charges of two offences against s125(1) of the Act by virtue of contraventions of s76(2) of the Act - one such contravention being the carrying out of development in contravention of a condition of development consent and the other contravention being the carrying out of development without the necessary development consent being obtained therefor. In that case, at the commencement of the trial, the prosecutor had sought and obtained leave to amend each charge to allege an offence against s125(1) of the Act (originally the charges had merely referred to contraventions of s.76(2)). It was in that context that I discussed the relationship between s125(1) and s76(2) noting that it was important for a proper understanding of (i) the essential elements of each offence charged; and (ii) the burden of proof. It may be helpful to the determination of the present issue which concerns the essential elements of an offence against s.125(1) of the EP&A Act if I repeat what I there said at pp. 6-13 (inclusive): "Such amendment recognises the fact that it is section 125 of the <CITE>EP&A Act</CITE> that creates the offences against that Act but does so by reference to a "direction" or a "prohibition" provided elsewhere by or under the <CITE>EP&A Act</CITE>. Section 76(2) is such a "prohibition" since it proscribes certain action, namely "the carrying out of development on land to which an environmental planning instrument applies and which provides that development specified therein may not be carried out except with consent under this Act being obtained therefor...". However the proscription is qualified, not absolute, the qualifications being "unless: (a) that consent has been obtained...etc," and (b) the development is carried out in accordance with the provisions of any conditions subject to which that consent was granted". The relationship between ss76(2) and 125(1) of the <CITE>EP&A Act</CITE> has recently been noted by the Court of Criminal Appeal in <CITE>Cooper v Coffs Harbour City Council</CITE> (unreported 2 December 1997) where Howie JA, in giving the judgment of the Court noted that an infringement of s76(2) of the Act gave rise to the commission of an offence under s125(1). In that case the charge had alleged an offence against s125(1) of the EP&A Act by virtue of the act of the defendant being contrary to a condition of development consent. Before the trial court the defendant had unsuccessfully raised objection to the charge as not disclosing any offence but on appeal to the Court of Criminal Appeal that objection had not been persisted with. It is not entirely clear from the decision in Cooper what precisely was the relevant "matter or thing that had been forbidden to be done by or under this Act, that was done" within the meaning of s125(1). It is possible that the relevantly forbidden act was the removal of trees without the prior approval of the council as required by a condition of development consent. That appears to have been the basis upon which that case proceeded. Another possibility would have been that the relevantly forbidden act was the carrying out of development otherwise than in accordance with the conditions of the development consent: see s76(2). In Power v Penthill House Pty Limited (1993) 80 LGERA 247 the defendants had been charged with an offence against s125(1) of the EP&A Act in respect of the removal of trees from a property to which development consent had been granted subject to conditions, including a condition requiring the approval of he council for the removal of trees. Stein J at 248 referred to the extended meaning of the expression "breach of the Act" in s122 of the EP&A Act in support of his conclusion that it was the language of the relevant condition of development consent that provided "the necessary ingredients of the offence". This appears to be a similar approach to that adopted by the Court of Criminal Appeal in Cooper. As in Cooper it is not entirely clear in the present case what is the relevantly forbidden act for the purposes of s125(1) of the EP&A Act, since the charge leaves the matter open to some latent doubt, by alleging (i) contravention of condition 2 of the development consent and (ii) contravention of s76(2) of the EP&A Act. In my judgment the preferable view of the charge is to regard the alleged contravention of s76(2) as the relevantly "forbidden act" for the purposes of s125(1) of the EP&A Act and to regard the alleged contravention of condition 2 of the development consent as a particular of that charge. Ultimately I think, with respect, this is the correct understanding of the dicta in Cooper and in Power. The question has more than semantic significance, because to properly identify and understand the charge has significant implications for the questions of (i) the essential elements of the offence and (ii) the burden of proof. Thus, if the charge were to be regarded as a contravention of Condition 2 of the development consent, the burden of proof clearly lies with the Prosecutor to establish the charge (including the elements of the offence) beyond reasonable doubt. However, if as I think to be the case, the charge is relevantly "the carrying out of development in contravention of 76(2)" the questions of (i) the essential elements of the offence and (ii) upon which party lies the burden of proof are far less clear, and require careful consideration. The first difficulty concerns identifying the essential elements of the offence and in particular whether the proscription in s76(2) is a proscription of (i) the carrying out of development on land to which an environmental planning instrument applies and which requires development consent to be obtained for the carrying out of specified development or (ii) the carrying out of that development in those circumstances unless development consent has been obtained and the development is carried out in accordance with relevant conditions of the development consent. The choice between the alternatives that is thus presented depends upon whether the words of s76(2) from and including the word "unless" are words (i) defining the grounds or basis of liability or (ii) providing for some exception or excuse to avoid that liability: see Dowling v Bowie (1952) <A href=" http://www.austlii.edu.au/au/cases/cth/high_ct/86clr136.html ">86 CLR 136</A> at 139/40 per Dixon CJ and cf: ex parte Ferguson; Re Alexander (1944) 45 SR NSW 64 at 66/67 per Jordan CJ. But for the fact that the trial has been conducted on the basis that the Prosecution must establish all elements of the alleged contravention of s76(2) of the EP&A Act including the fact that the sand dredging was carried out in a manner that contravened Condition 2 of the development consent, I would have answered the question I have earlier posed concerning the elements of the offence by adopting alternative (i). The legal consequence of that conclusion would have been that upon a charge of an offence against s125(1) of the EP&A Act based upon an alleged contravention of 76(2) of the Act the Prosecution would only be required to prove the following elements of the offence: (i) a matter or thing forbidden to be done by or under the Act,: s125(1), namely the carrying out of development on land to which an environmental planning instrument applies and which provides that specified development may not be carried out except with consent: s76(2); and (ii) the doing of that forbidden act: s125(1), leaving it to the Defendant to prove, on the balance of probabilities, the statutory exceptions or qualifications, namely that the carrying out of the development was done: (i) with the relevant consent therefor having been obtained and being in force; and (ii) in accordance with any conditions subject to which the consent was granted. Such conclusions would derive from the application of established principles to the interpretation of s125(1) and s76(2) of the EP&A Act. The relevant principles are discussed in the following passage of the joint judgment of Brennan, Dawson, Gaudron JJ in Director of Public Prosecutions v United Telecasters Sydney Limited (1990) <A href=" http://www.austlii.edu.au/au/cases/cth/high_ct/168clr594.html ">168 CLR 594</A> at 600 and 601: "The rule laid down in Woolmington v Director of Public Prosecutions [[1935] AC 462 at 481], that the burden of proving every element of an offence rests at all times upon the prosecution, was expressed to be "subject to ... the defence of insanity and subject also to any statutory exception". It is clear in Reg v Edwards [[1975] QB 27] and Reg v Hunt [[1987] AC 352] that the statutory exceptions referred to are not confined to those which expressly cast the burden of proof upon the accused (see, eg., <A href=" http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/ ">Crimes Act 1900</A> (NSW), <A href=" http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s417.html ">s417</A>), but extend to cases in which an intention to do so is necessarily implied. Such cases will ordinarily occur where an offence created by statute is subjected to a proviso or exception which, by reason of the manner in which it is expressed or its subject matter, discloses a legislative intention to impose upon the accused the ultimate burden of bringing himself within it. That burden may, of course, be discharged upon the balance of probabilities. Whilst it is convenient to speak in terms of provisos or exceptions, the legislative intent cannot be ascertained as a mere matter of form. The Court of Appeal in Reg v Edwards [[1975] QB at 40] viewed the statutory exceptions as limited to: "offences arising under enactments which prohibit the doing of an act save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities." In Reg v Hunt [[1987] AC at 375] even this formulation was said by the House of Lords not to be exhaustive. Each case must turn upon the construction of the particular enactment." In the passage in Hunt cited in the joint judgment of Brennan, Dawson and Gaudron JJ in United Telecasters, Lord Griffiths in giving the principal speech in the House of Lords, made one important qualification to the decision of the Court of Appeal in Reg v Edwards when his Lordship said: "In Reg v Edwards [1975] QB 27, 39-40 the Court of Appeal expressed their conclusion in the form of an exception to what they said was the fundamental rule of our criminal law that the prosecution must prove every element of the offence charged. They said that the exception "is limited to offences arising under enactments which prohibit the doing of an act save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities." I have little doubt that the occasions upon which a statute will be construed as imposing a burden of proof upon a defendant which do not fall within this formulation are likely to be exceedingly rare. But I find it difficult to fit Nimmo v Alexander Cowan & Sons Ltd. [1968] AC 107 into this formula, and I would prefer to adopt the formula as an excellent guide to construction rather than as an exception to the rule. In the final analysis each case must turn upon the construction of the particular legislation to determine whether the defence is an exception within the meaning of <A href=" http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s101.html ">section 101</A> of <A href=" http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/ ">the Act</A> of 1980 which the Court of Appeal rightly decided reflects the rule for trials in indictment. With this one qualification I regard Reg v Edwards as rightly decided." See also Chugg v Pacific Dunlop Limited (1990) <A href=" http://www.austlii.edu.au/au/cases/cth/high_ct/170clr249.html ">170 CLR 249</A> at 257 et seq for a discussion of the relevant principles and the earlier decision of Yeldham J in Lynch v Attwood (1983) 3 NSWLR 1 as an illustration of the application of the principles to a statutory liability similar to the proscription in <A href=" http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s76.html ">s76</A>(2) of the EP&A Act. Accordingly had I been free to do so, I would have concluded that the proper construction of sections 125(1) and 76(2) of the EP&A Act is to impose the burden of proof upon the defendant to prove, on the balance of probabilities, the statutory exceptions or qualifications expressed in s76(2) to the statutory proscription therein provided, which in turn constitutes the relevant "matter or thing forbidden to be done by or under the Act" within the meaning of s125(1) of the EP&A Act." On the hearing of the Motion, the Defendant tendered an extract from the Hornsby Shire Local Environmental Plan 1994 (the LEP) (Exhibit A) and a copy of the Tree Preservation Order (the TPO) (Exhibit B) made by the Hornsby Council on 12 June 1996 in pursuance of the power conferred upon it by cl.8 of the LEP. Clause 8 of the LEP is in the following terms: "(1) The council may make, revoke or amend a tree preservation order. (2) A person shall not carry out or permit or direct or cause any ringbarking, cutting down, topping, lopping, removing or wilful destruction of any tree or trees to which a tree preservation order applies without the consent of the Council. This does not apply to or in respect of: (a) trees within a State Forest, or within a timber or forest reserve, within the meaning of the <A href=" http://www.austlii.edu.au/au/legis/nsw/consol_act/fa1916139/ ">Forestry Act 1916</A>; or (b) trees in a National Park, within the meaning of the <A href=" http://www.austlii.edu.au/au/legis/nsw/consol_act/npawa1974247/ ">National Parks</A> <A href=" http://www.austlii.edu.au/au/legis/nsw/consol_act/npawa1974247/ ">and Wildlife Act 1974</A>; or (c) action required by clause 23 of the Electricity (Overhead Line Safety) Regulation 1991; or (d) plants declared to be noxious weeds under the <A href=" http://www.austlii.edu.au/au/legis/nsw/consol_act/nwa1993182/ ">Noxious Weeds Act</A> <A href=" http://www.austlii.edu.au/au/legis/nsw/consol_act/nwa1993182/ ">1993</A>. (3) A tree preservation order, and any revocation or amendment of such an order, does not have effect until it has been published in a newspaper circulating in the area of the Council." The TPO is in the following terms-- "1. Pursuant to Clause 8 of the Hornsby Shire Local Environment Plan 1994, it is hereby ordered that the ringbarking, cutting down, topping, lopping, removing, injuring and/or wilful destruction of any tree or trees to which this Order relates or the permitting, direction or causing of any ringbarking, cutting down, topping, lopping, removing, injuring and/or wilful destruction of any tree or trees to which this Order relates, is prohibited, except with the written consent of Council. 2. For the purpose of this Order the word 'tree' shall mean a single or multi-trunked wood perennial plant having a height of not less than three metres, and which develops many branches, usually from a distance of not less than one metre from the ground, but excluding any plant which, in its particular location, is a noxious plant declared as such pursuant to the <A href=" http://www.austlii.edu.au/au/legis/nsw/consol_act/nwa1993182/ ">Noxious Weeds Act 1993</A>. 3. This Order shall apply to all trees located within the Hornsby Local Government Area with the exception of: (a) Any tree within three metres of the foundation (see below for definition of a foundation) walls of a residential building, garage, commercial or community building or, in-ground swimming pool; or (b) The following tree species (provided any tree/trees of these species are not identified as a Heritage item under the Hornsby Shire Local Environmental Plan): <TABLE> <TBODY> <TR align=left> <TD align=left> Common Name </TD> <TD align=left>Botanical Name </TD></TR> <TR align=left> <TD align=left>Broad-leafed Privet Narrow-leafed Privet Coral tree Camphor Laurel Cotoneaster Rubber Tree Willow </TD> <TD align=left>Ligustrum lucidum Ligustrum chinense Erythrina x sykesii Cinnamonum camphora Cotoneaster spp. Ficus decora Salix babylonica </TD></TR></TBODY></TABLE>(c) Action to prune a tree by less than 10% of the foliage area within a period of not less than 12 months since any prior pruning. (d) Trees in a National Park, within the meaning of the <A href=" http://www.austlii.edu.au/au/legis/nsw/consol_act/npawa1974247/ ">National Parks</A> <A href=" http://www.austlii.edu.au/au/legis/nsw/consol_act/npawa1974247/ ">and Wildlife Act 1974</A>; or (e) Action to trim or remove trees required by clause 23 of the Electricity (Overhead Line Safety) Regulation 1991; or (f) Trees within a State Forest, or within a timber or forest reserve, within the meaning of the <A href=" http://www.austlii.edu.au/au/legis/nsw/consol_act/fa1916139/ ">Forestry Act 1916</A>; or (g) Any tree harbouring Fruit Fly or grown for its edible fruit. (h) Exemptions do not apply to Camphor Laurel trees above 20 metres in height growing on either Council controlled land or Heritage listed properties. 4. No person shall substantially alter, or cause, permit or direct to be substantially altered, the soil level around the trunk or within three metres of the trunk of a tree to which this Order applies, without the written consent of Council." Read together, the LEP and TPO operate to prohibit the ringbarking, cutting down, topping, lopping, removal or wilful destruction of trees to which the TPO applies (relevantly all "trees located within the Hornsby Shire" except for express exclusions) without the consent of the Council. (The LEP refers to "consent" and the TPO refers to "written consent".) Is this effect of the LEP and TPO something that relevantly may constitute a "prohibition" within the meaning of s76(2) of the EP&A Act? In other words, is the LEP "an environmental planning instrument which provides that development specified therein may not be carried out except with consent under this Act being obtained therefor?" In answering this question (and since the cutting down of trees is probably not "the carrying out of development" per se -- see the definition of "development" in s.4(1) of the EP&A Act) it is necessary to read the reference to "development" in the extended sense sanctioned by s.75(1) and s.26(1) of the EP&A Act the terms of which I have earlier set forth. So read, I think it can be fairly concluded that the LEP relevantly prohibits the cutting down etc. of trees, the subject of the TPO, except with the consent of the Council (as if that activity were the "carrying out of development"). It follows from this conclusion that the prohibition aspect of s76(2) is enlivened namely that a person shall not carry out that "development" unless (i) consent has been obtained and is in force; and (ii) the development is carried out in accordance with any relevant condition of that consent. So read, it further follows that a contravention of s76(2) is relevantly an "offending against the prohibition" within the meaning of s125(1) of the EP&A Act. However, it is clear that the charge does not aver that the relevant "prohibition" is that provided by s.76(2) of the EP&A Act. This makes it necessary to consider whether the LEP read with the TPO is capable of creating a relevant prohibition "under the Act" for the purposes of s.125(1) independently of the prohibition created by s.76(2). Clause 8(2) relevantly prohibits "the carrying out or permitting or directing or causing any ringbarking, cutting down, topping, lopping, removal or wilful destruction of any tree to which a tree preservation order applies, without the consent of the Council". Such a prohibition would appear to naturally fall within the ambit of s.125(1) of the EP&A Act being relevantly "a prohibition under the Act". Despite this conclusion, which simply gives effect to the construction of the statutory language, it must be remembered that the "prohibitions" contained in s.76(1), (2) and (3) are all entirely predicated and dependent upon the existence of relevant provisions in an environmental planning instrument. Given this feature of the prohibitions contained in s.76, (the absolutely pivotal and foundational provision in the scheme of "environmental planning control" contained in Part 4 of the EP&A Act) an interpretation of s.125(1) which recognises the indispensability of an environmental planning instrument to the creation and operation of the relevant prohibitions contained in s.76, would suggest that the expression "by or under this Act" in s.125(1) is not intended to give effect to a dual system of prohibitions based upon the provisions of an environmental planning instrument. In other words, it is unlikely that a prohibition contained in an environmental planning instrument was intended to have a double effect - (i) feeding the prohibitions created by s.76; and (ii) independently of s.76 creating prohibitions capable of giving rise to separate liability under s.125(1). Accordingly an interpretation of s.125(1), which is more harmonious with the scheme of Part 4 of the EP&A Act, and the whole of the Act, is one that would exclude from the ambit of the expression "prohibition under this Act", a prohibition otherwise created by s.76 of the EP&A Act which prohibition is entirely founded upon the provisions of an environmental planning instrument. However, it is not necessary in the present case to express a concluded view on the meaning of the expression "by or under this Act" appearing in s.125(1) of the EP&A Act and in particular, whether a prohibition contained in an environmental planning instrument (such as cl.8 of the LEP) is relevantly a prohibition "under this Act" within the meaning of s.125(1). This is because the charge does not aver as the relevant prohibition, the provisions of cl.8(2) of the LEP. Rather, as will be seen, to the extent that the charge avers a relevant "prohibition", it is that contained in the TPO. It is opportune that I should note that in Clyne (where the question does not appear to have been debated by the parties) Talbot J appears to have accepted the view that the relevant "prohibition" was found in the TPO when his Honour stated at p.3: "The offence under s 125 for present purposes is that a matter or thing forbidden to be done by the Tree Preservation Order made under Hornsby LEP was done. An offence against cl 1 of the Tree Preservation Order comprises a number of different combinations of events. They include actually and the permitting, directing or causing ringbarking, cutting down, topping, lopping, removing, injuring and/or wilful destruction of any tree or trees to which the Order relates without written consent of the council." However, a number of observations may be made concerning these dicta. Firstly, they may have been intended to do no more than summarise the pith of the terms of the charge that was before the Court. Secondly, one of the ingredients of the offence enumerated by his Honour was the absence of "written consent of the Council", a fact, it is to be noted, that was not averred in the charge. (Nor is it averred in the present charge.) For my part, and assuming against my preferred construction of s.125(1) that a prohibition contained in an environmental planning instrument may constitute "a prohibition under this Act", I would hold that the relevant "prohibition" is sourced in cl.8 of the LEP rather than in the terms of the TPO for the reason that the prohibition created by the LEP is more obviously a prohibition "under the Act" because the LEP is made, and is in force, "under the Act" whereas the prohibition created by the TPO is not directly so, being a prohibition contained in a TPO made under the LEP, and to that extent, is one step removed from being a prohibition "under this Act". Thus, the final question to be considered is whether the charge contains all the essential legal ingredients of the offence created by s.125(1) of the EP&A Act. It is to be recalled that the offence as formulated in the Summons is in the following terms: "commit an offence against the EP&A Act 1979, section 125, whereby the Defendant....cut down and/or removed.....trees contrary to the Council's Tree Preservation order created pursuant to clause 8 of the Hornsby Shire Local Environmental Plan 1994." A number of comments concerning this formulation of the offence should at once be noted -- (i) it does not adopt the language of s.125(1) of the EP&A Act, indeed, it bears little similarity to the text of s.125(1); (ii) it does not specify the precise nature of the relevant "prohibition" other than by virtue of its statement that the Defendant's acts were "contrary to" the TPO; and (iii) it does not specify whether the relevant "prohibition" is "by or under this Act" except for saying that the Defendants' acts were "contrary to" the TPO. It is apparent from the formulation of the offence that the relevant prohibition is not that contained in s.76(2) of the EP&A Act. It follows that the charge is not of an offence in relation to a prohibition made "by the Act". Is it a charge of an offence in relation to a "prohibition under the Act"? In terms, the formulation speaks of "contrariety" to the TPO. Assuming in favour of the Prosecutor that such contrariety may imply the existence of a relevant "prohibition" it is apparent that the source of that prohibition, as formulated in the charge, is the TPO. Is that relevantly a "prohibition under this Act" within the meaning of s.125(1) of the EP&A Act? In my opinion, it is not, for it is apparent that the prohibition contained in cl.1 of the TPO is a prohibition in an instrument made under cl.8 of the LEP which is itself made "under the Act". In other words, as the TPO is the impliedly averred source of the relevant "prohibition" it is not a prohibition "under this Act" within the meaning of s.125(1). Rather, it is a prohibition "under" the TPO made "under" the LEP made "under" the Act. It follows that the charge does not charge an offence under s.125(1) of the EP&A Act because the relevant "prohibition" is not a prohibition "under this Act" within the meaning of that section. For the reasons I have earlier given, the charge could have stated as a relevant "prohibition" that contained in s.76(2) which qualifies as a prohibition "by this Act", and possibly the prohibition contained in cl.8 of the LEP which may qualify as a prohibition "under this Act", but it has not done so and in failing to do so, it has omitted an essential legal ingredient or element of the offence created by s.125(1) of the EP&A Act. The resulting legal deficiency in the charge is not saved by virtue of the statement in the charge of the commission of an "offence against s.125 of the EP&A Act". In so holding, I would respectfully adopt the reasoning of the Full Court of the Federal Court in Traveland Pty Ltd v. Doherty (1982) 63FLR 41 at 50 in holding that a charge alleging "a contravention of s.53(c)" of the <A href=" http://www.austlii.edu.au/au/legis/cth/consol_act/tpa1974149/ ">Trade Practices Act 1974</A> "cannot either in itself constitute a valid charge of an offence against the section, or operate as a basis upon which a failure to specify necessary elements of an offence can be rectified by conjecture that it must have been intended to allege one or other of the alternative elements which would make good that deficiency". In that case, the Full Court of the Federal Court analysed the offence created by <A href=" http://www.austlii.edu.au/au/legis/cth/consol_act/tpa1974149/s53.html ">s.53</A>(c) of the <A href=" http://www.austlii.edu.au/au/legis/cth/consol_act/tpa1974149/ ">Trade Practices Act</A> as containing "no less than ninety-six different combinations of elements where each different combination constitutes a distinct offence": 49 Similarly with the offence created by s.125(1) of the EPA there are multiple combinations of elements, where each different combination of elements constitutes a distinct offence. I do not propose to analyse the section creating the offence as closely as was done in Traveland but even a superficial consideration of s.125(1) reveals the following variable elements:- (i) a matter or thing (ii) may be directed to be done (iii) may be forbidden to be done (iv) the forbidding or direction may be (a) by <A href=" http://www.austlii.edu.au/au/legis/cth/consol_act/tpa1974149/ ">the Act</A> (b) under <A href=" http://www.austlii.edu.au/au/legis/cth/consol_act/tpa1974149/ ">the Act</A> (c) by the Minister authorised by or under <A href=" http://www.austlii.edu.au/au/legis/cth/consol_act/tpa1974149/ ">the Act</A> (d) by a Council or other person authorised by or under <A href=" http://www.austlii.edu.au/au/legis/cth/consol_act/tpa1974149/ ">the Act</A>. (v) the matter of thing forbidden to be done, is done; and (vi) the matter or thing directed to be done is not done. Given the wide extent of the variable elements that may in various combinations constitute a separate offence against s.125(1) of the EP&A Act, it is, in my judgment, necessary for the charge to identify with some precision the particular combination of elements relied upon as constituting the offence. The present charge does not expressly identify any combination of relevant elements. Rather, it expresses the elements as "evidentiary facts" instead of averring the "ultimate facts" (being the legal ingredients or elements of the offence) cf. Broome v. Chenoweth (1946) <A href=" http://www.austlii.edu.au/au/cases/cth/high_ct/73clr583.html ">73CLR 583</A> at 600 per Dixon J. As such the statement of the evidentiary facts "bears on the nature and extent of the insufficiency of the charge" but is no substitute for the averment of the essential legal ingredients of the offence. What the evidentiary facts, so alleged, relevantly demonstrate is that the Defendant's acts of cutting down trees was "contrary to" the TPO. What does that demonstration reveal as to the essential legal ingredients of the offence? As I have said, it may possibly imply, by its express statement that the Defendants are "contrary to" the TPO, a relevant prohibition and an offending against that prohibition. However, assuming all that in favour of the Prosecutor, the charge does not allege that the relevant prohibition is relevantly "by or under this Act". Rather, it impliedly states that the prohibition is created by the TPO and I have held that that prohibition is not relevantly "under this Act". Thus, the charge fails to state an essential legal ingredient of the offence and for that reason the charge is legally defective. In so concluding, I have applied the established requirements of the criminal law that are aptly re-stated in Traveland at 49 where the Federal Court stated the following principle: ".....it is necessary that the summons, upon information, instituting a prosecution for an offence under the Act should make clear the precise offence with which the accused is charged and allege against the accused all the elements of that particular offence: see generally, Broome v. Chenoweth (1946) <A href=" http://www.austlii.edu.au/au/cases/cth/high_ct/73clr583.html ">73CLR 583</A> at pp. 594-595, 600-601; Ex parte Price (1899) 20LR (NSW) 343; Tregilgas v. Howie (1926) SASR 122; Bastin v. Davies (1950) 2KB 579. In Ex parte Lovell; Re Buckley (1938) 38SR (NSW) 153 at 173 Jordan CJ stated the same principle as follows: "Hence, in order to support a conviction for an offence, it is necessary either that the information and summons upon which it is based should accurately state the acts necessary to constitute all the ingredients of that offence....... ........Section 65 of the Justices Act, 1902, does not enable a magistrate to convict of an offence upon an information which discloses no offence....." My conclusion that the charge is legally defective by virtue of its failure to state all the legal ingredients of the offence under s.125(1) of the EP&A Act and that accordingly, the charge discloses no offence, distinguishes the present case from Clyne where Talbot J distinguished Traveland and similar decisions on the ground that they were dealing with cases involving "a failure to allege an essential ingredient of the offence". This demonstrates that the present point was not raised in Clyne. Moreover, as I have earlier mentioned, it appears that Clyne was argued and decided on the basis that did not bring into question the proposition that the relevant "prohibition" for the purposes of s.125(1) of the EP&A Act was that contained in cl.1 of the TPO. For the reasons I have given, that proposition upon detailed analysis, is not, legally sustainable. Even if the prohibition contained in cl.1 of the TPO was considered to be a proper source of "prohibition" for the purposes of s.125(1) the further question would arise as to whether the charge was legally sufficient in view of the absence of averment that the "written consent of the Council" was not given. What I said in Birdon Dredging concerning the nature of the prohibition contained in s.76(2) of the EP&A Act would not necessarily apply to the prohibition contained in cl.1 of the TPO. Conventionally, charges that have been brought in this Court alleging an offence against s.125(1) by virtue of the contravention of a tree preservation order, have contained an averment of the absence of requisite council consent to the tree removal. If, as has conventionally been assumed hitherto, the contravention of a tree preservation order involves "removing trees without the requisite Council consent" (cf. Cooper at 130) then the absence of requisite consent is properly regarded as an essential legal ingredient of the offence and as such, must be included in the averments contained in the charge. No such averment is contained in the present charge and on that account the charge is legally defective, even if it be assumed that cl.1 of the TPO constitutes the relevant "prohibition" within the meaning of s.125(1). Accordingly, for all the foregoing reasons, I would hold that the charge is legally defective and does not disclose an offence against s.125(1) of the EP&A Act. This conclusion leaves the question whether the charge is "incurably bad", an epiphet adopted in the cases e.g. Clayton v. John L Pty Ltd (1984) 1NSWLR 344 at 352 per Yeldham J and, on appeal to the High Court of Australia, John L Proprietary Ltd v. Attorney General for NSW (1987) <A href=" http://www.austlii.edu.au/au/cases/cth/high_ct/163clr508.html ">163CLR 508</A> at 529 per Brennan J. Since the epiphet "incurably bad" is reserved for cases where statutory savings provisions or the power of amendment is held to be unavailing, I shall postpone my adoption of the term until I consider whether the defect in the charge is capable of being cured by the provisions of s.43 of the LEC Act or by the exercise of relevant powers of amendment. E. IS THE DEFECT IN THE CHARGE CURED BY S.43 OF THE LEC ACT? Section 43 provides as follows: "No objection shall be taken or allowed to any application referred to in, or to any order or warrant made or issued under, section 41 or 42 by reason of any alleged defect in it in substance or in form or by reason of any variance between it and the evidence adduced at the proceedings for the offence charged in the application or order." Section 43 is in almost identical terms to s.65 of the <A href=" http://www.austlii.edu.au/au/legis/nsw/consol_act/ja1902119/ ">Justices Act 1902</A> which has been the subject of considerable judicial exposition, and especially so in recent times in the John L litigation (both in the Supreme Court and the High Court) and by the Court of Criminal Appeal in Stanton v. Abernathy (1990) 19NSWLR 656 and in Cooper v. Coffs Harbour City Council (1997) 97LGERA 125. Notwithstanding the very broad operation accorded to such statutory provisions, they have never been held to cure a charge which is legally defective on account of disclosing no offence. The position is succinctly stated by Jordan CJ in Ex Parte Lovell at 173: "Section 65 of the Justices Act, does not enable a magistrate to convict of an offence upon an information which discloses no offence, ...." Having stated the limitation in <A href=" http://www.austlii.edu.au/au/legis/nsw/consol_act/ja1902119/s65.html ">s.65</A>, the Chief Justice at 174 illustrates the effect of the section when he states: "If, however, the information and summons charge all ingredients of the offence, the fact that particulars which should have been given have been omitted is a matter covered by <A href=" http://www.austlii.edu.au/au/legis/nsw/consol_act/ja1902119/s65.html ">s.65</A>." In Cooper Howie AJ, in giving the judgment of the Court of Criminal Appeal and in the course of expounding the operation of s.43 of the LEC Act (and its counterpart in the <A href=" http://www.austlii.edu.au/au/legis/nsw/consol_act/ja1902119/ ">Justices Act</A>) in footnote 24 (at p.132) distinguishes between "essential factual ingredients" of the offence and the "legal ingredients" of the offence (both of which must be stated in the charge) and cites the passages at 173 and 174 in the judgment of Jordan CJ in Ex parte Lovell (that I have just cited) as demonstrating "(T)he different consequences that flow from a failure to state an essential legal ingredient of a charge and a failure to give an essential factual ingredient". In my judgment, it is settled by authority, that s.43 of the LEC Act cannot cure the defect I have found in the present charge. That is not a defect in want of essential factual ingredients. It is a want of essential legal ingredients. Moreover, the implicit averment in the charge, of the prohibition contained in cl.1 of the TPO cannot be regarded as a factual allegation that is "wrong" "surplusage" or "irrelevant" (all of which defects would be curable by s.43-- see Cooper at 133) because to so regard the charge would be to deprive it altogether of an essential legal ingredient of the offence, namely a relevant "prohibition", since I have already held that the bare allegation of an offence against s.125(1) does not satisfy the requirements of the criminal law that a charge specify all legal ingredients of the offence. F. IS THE DEFECT IN THE CHARGE CAPABLE OF AMENDMENT? In Chenoweth Dixon J at 601 discussed the question whether an information disclosing no offence can be amended. After noting a difference of judicial opinion on the question, Dixon J discussed the question in the following passage at 601: "Probably it is necessary to deal with the question as a matter of degree and not by a firmly logical distinction. An offence may be clearly indicated in an information, but, in its statement, there may be some slip or clumsiness, which, upon a strict analysis results in an ingredient in the offence being the subject of no proper averment. Logically it may be said in such a case that no offence is disclosed and yet it would seem to be a fit case for amendment, if justice is not to be defeated. By contrast, at the other extreme, an information may contain nothing which can identify the charge with any offence known to the law. Such a case may not be covered by the power of amendment." In the present case, my consideration of the legal insufficiency of the charge would align it closer to the former end of the spectrum suggested by Dixon J. However, the present case involves a significant factor which was not relevant to Dixon J's discussion of the question in Chenoweth, namely the fact that any amendment to the charge would be made at a time beyond the statutory period for commencing proceedings for the offence alleged. In Traveland it was conceded by the prosecutor that leave to amend to overcome the legal deficiency should not be granted because the statutory limitation period for bringing a prosecution for the offence had expired: 51. In John L Yeldam J, in holding the charge "incurably bad" further held the charge to be "incapable of amendment whether under Part 20 (of the Supreme Court Rules) or otherwise" in the circumstances where the statutory time limit for bringing proceedings had expired: 352 In Linehan v. Public Service Association (1982) 44ALR 289, Fitzgerald J, in the course of considering the question whether an amendment should be granted to relieve a summons of uncertainty, expressly regarded as "clearly different" "(C)ases in which essential allegations are omitted, such as Traveland Pty Ltd v. Doherty, and Gilmour v. Bannister Nominees". After citing those cases, his Honour continues at 308/309: "Generally at least, whether or not such cases may be properly characterized as nullities, and/or seen as equivalent to cases in which there is no essential process at all (cf Ex parte Palmer (1907) 7SR (NSW) 544 at 549; Connor v Sankey [1976] 2 NSWLR 570), it is readily comprehensible that, in the context of <A href=" http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s21.html ">ss 21</A> and 21A of the <A href=" http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/ ">Crimes Act</A>, it should be seen as impermissible for the prosecutor to add essential allegations for the first time after the time for a prosecution has expired. Even in those cases, it may be that the omission of an allegation could sometimes be cured by amendment (see Broome v Chenoweth (1946) <A href=" http://www.austlii.edu.au/au/cases/cth/high_ct/73clr583.html ">73 CLR 583</A> at 601), although different considerations may well arise after a time limitation has expired." Fitzgerald J went on at 309 to consider the decision of Sangster J in Fred Wakefield Pty Ltd v Dowd (1979) 20SASR 328 saying: "Sangster J upheld an appeal from a conviction by a court of summary jurisdiction on the basis that the complaint had been amended out of time. The details are unimportant save that the learned judge concluded that a different offence was charged after the amendment from that originally charged. The effect of what his Honour said was that such a situation, or one in which the effect of an amendment would be to create a valid charge for the first time after the statutory period had expired, was to be differentiated from one in which the same set of facts were charged after the amendment and the substance of the charge remained constant although the offence was differently described or stated." In Gilmour v. Midways Springwood Pty Ltd (1980) 33ALR 605, Brennan J, having held that the offences laid were not offences consented to by the Minister (607/608), went on to consider whether the information could be amended in order to permit the commencement outside the time limited by the <A href=" http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/ ">Crimes Act</A> of a prosecution for the offences to which the Minister had given consent, holding that the "immunity from prosecution" (conferred by the time limitation imposed by the <A href=" http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/ ">Crimes Act</A>) "may not be circumvented by the exercise of the power to amend": 608 In my judgment, and conformably to the decisions to which I have made reference, the powers of amendment vested in the Court in their broadest scope, should not be exercised in the present case to overcome the legal defect in the charge at a time when the statutory time limit for the commencement of proceedings for the offence has long since expired. G. CONCLUSIONS AND ORDERS It follows from the foregoing that the Defendant has made good his claim that the charge is legally defective in not disclosing an offence against s.125(1) of the EP&A Act and that in consequence, the Defendant is entitled to an order striking out the proceedings as not validly charging the Defendant with an offence. It further follows that there is no utility in entertaining the Prosecutor's Motion for amendment of the summons because the original summons has not validly charged the Defendant with any offence. (Moreover, it is to be noted that the amended summons (Annexure C) perpetuates the content of the summons which gives rise to my conclusion that the charge fails to disclose an offence.) Accordingly, the Prosecutor's Notice of Motion must be dismissed. Accordingly, I make the following orders:- 1. The proceedings be struck out as failing to disclose any offence and the summons be dismissed. 2. The Prosecutor's Notice of Motion be dismissed. 3. Exhibits remain on Court file. 4. The question of costs is 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.

Hornsby Shire Council v. Alan Charles Winsloe [1998] NSWLEC 108

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Hornsby Shire Council v. Alan Charles Winsloe [1998] NSWLEC 108

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