Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 3) [2018] NSWLEC 197

Land and Environment Court New South Wales

Medium Neutral Citation: Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 3) [2018] NSWLEC 197 Hearing dates: 30 November 2018 Date of orders: 30 November 2018 Decision date: 30 November 2018 Jurisdiction: Class 5 Before: Pepper J Decision: Leave granted to read the affidavit of Mr Andrew Macleod affirmed 22 November 2018. Catchwords: EVIDENCE: whether leave should be granted to the prosecutor to read an affidavit served late – no prejudice to the defendant – affidavit needed to avoid the prosecutor splitting its case – leave granted. Legislation Cited: Criminal Procedure Act 1986, ss 247P, 247V, 247X Evidence Act 1995, ss 55, 76, 79, 192 Cases Cited: Sutherland Shire Council v Benedict Industries Pty Ltd [2013] NSWLEC 121 Sutherland Shire Council v Benedict Industries Pty Ltd (No 3) [2015] NSWLEC 97 Texts Cited: Category: Procedural and other rulings Parties: Secretary, Department of Planning and Environment (Prosecutor) Leda Manorstead Pty Ltd (Defendant) Representation: Counsel: T Howard SC and J Walker (Prosecutor) A Galasso SC and B Anniwell (Defendant)

Solicitors: Department of Planning and Environment (Prosecutor) Mills Oakley (Defendant) File Number(s): 2017/186631, 2017/186632, 2017/186634 Publication restriction: N/A

Judgment

The Prosecutor Seeks Leave to Rely on a Late Affidavit 1. The prosecutor in Class 5 criminal proceedings, the Secretary, Department of Planning and Environment ("the Department"), seeks leave to read an affidavit of Mr Andrew Macleod affirmed 22 November 2018 ("the Macleod affidavit"). The defendant, Leda Manorstead Pty Ltd ("Leda") opposes the affidavit being read. 2. The hearing commenced on 26 November 2018, that is, four days after the service of the affidavit. In other words, the affidavit was served late on Leda. 3. The Macleod affidavit is in response to two affidavits sworn by Dr Daniel Martens on 22 June and 24 October 2018. Dr Martens is an environmental scientist and civil/environmental engineer, whose evidence is proffered on behalf of Leda. 4. Relevantly for present purposes, in his two affidavits Dr Martens opines as to the meaning of various terms within condition 21A(b) of a project approval, breaches of which form the basis of two of three criminal counts with which Leda has been charged and that are presently being heard by the Court 5. Condition 21A(b) of the project approval states as follows: 21A Bulk Earthworks … b. Bulk earthworks for the site are to be limited to a maximum exposed disturbed area (that has not been permanently vegetated) not exceeding a maximum of 5ha at any time to reduce exposed areas, unless otherwise approved by the Director-General. 1. Dr Martens, drawing upon his considerable experience as a civil/environmental engineer, gives his expert opinion, first, on whether the composite term "exposed disturbed area" used in condition 21A has a particular meaning to a civil engineer, and if so, what that meaning is. Second, Dr Martens gives his opinion on the meaning of the term "bulk earthworks" contained in condition 41 of the project approval, alleged breach of which comprises the third charge against Leda, and condition 21A(b) of that approval. 2. Condition 41 of the project approval relevantly states: 41. Earthworks – Limits of Approval a. No bulk earthworks are to be undertaken outside of the central open space area (as defined in Schedule 1 Part C of this approval) b. Notwithstanding a.) above, bulk earthworks may also be carried out in Precincts 1, 2, 9 and 11 for the sole purpose of the winning of fill to be placed in the Central Open Space Area and the SSPP shown on bulk earthworks drawings specified in Condition 3. 1. Mr Macleod, an environmental scientist specialising in the field of erosion and sediment control and soil science, has had experience in the construction industry. In his affidavit, he deposes to the meaning of "bulk earthworks" and "exposed disturbed areas" and states that, in his opinion, and contrary to the evidence of Dr Martens, neither term has a particular specialised meaning in the construction industry. 2. A principal legal issue (if not the principal legal issue) for determination by the Court in the proceedings will be the proper construction of conditions 21A(b) and 41 of the project approval. 3. Leda submits that the terms "bulk earthworks" and "exposed disturbed area" are terms of art, and therefore, expert evidence is permissible, if not necessary, to construe them for the purpose of interpreting conditions 21A(b) and 41 of the project approval. 4. The Department, by contrast, in effect submits that the terms are to be construed in accordance with their ordinary everyday usage and that therefore the evidence of Dr Martens is irrelevant (and inadmissible) in this regard. It seeks to rely on Mr Macleod's evidence to indicate how those terms are used in the construction industry.