Environment Protection Authority v Wellington Council [2017] NSWLEC 5

Land and Environment Court New South Wales

Medium Neutral Citation: Environment Protection Authority v Wellington Council [2017] NSWLEC 5 Hearing dates: 9 September and 29 November 2016 Date of orders: 02 February 2017 Decision date: 02 February 2017 Jurisdiction: Class 5 Before: Moore J Decision: See orders at [106] Catchwords: CRIMINAL LAW – prosecution by EPA of a council for water pollution from council sewage treatment plant – council enters "guilty" plea – council dissolved by proclamation (the First Proclamation) and amalgamated to form an element of a new regional council – new regional council applies to have prosecution struck out – bases advanced by the EPA for effectiveness of the First Proclamation in maintaining EPA's prosecution as against the new regional council – second proclamation (the Second Proclamation) amending the First Proclamation – effect of the Second Proclamation – the Second Proclamation to play no substantive role in these interlocutory proceedings – First Proclamation ineffective to maintain prosecution against the new regional council – prosecution struck out COSTS – application by the new regional council for costs of the strike out application – consideration of provisions of the Criminal Procedure Act 1986 that permit making orders for costs against a prosecutor – no statutory basis to award costs to intervenor in these circumstances – no order for costs Legislation Cited: Criminal Appeal Act 1912, s 5AE(1) Criminal Procedure Act 1986, ss 3, 247G(1), 257B, 257C, 257D Local Government Act 1993, ss 213(1), 736, 737 Local Government (Bayside) Proclamation 2016, cl 6, Sch 1(9), 1(10) Local Government (Council Amalgamations) Proclamation 2016, cll 3(1), 17, 32, 33, 34 Protection of the Environment Operations Act 1997, ss 120, 216(1)(b), Pt 8.3, ss 243, 244(2) Cases Cited: Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46 R v Thomson; R v Houlton 49 NSWLR 383; [2000] NSWCCA 309 Category: Procedural and other rulings Parties: Environment Protection Authority (Prosecutor) Wellington Council (Defendant) Representation: Counsel: Dr K Stern SC and Mr P English, barrister (Prosecutor) Mr C Ireland, barrister (Intervener)