The case of M&S Investments (NSW) Pty Ltd v Affordable Demolitions and Excavations Pty Ltd [2023] NSWLEC 65 concerned a series of notices of motion filed in class 5 criminal proceedings commenced in the New South Wales Land and Environment Court (Court). The motions sought to have a number of prosecutions commenced by a private company struck out or permanently stayed on the ground that the prosecutions were statute barred as they were commenced out of time.

M&S Investments (NSW) Pty Ltd (the prosecutor) commenced prosecutions against a number of defendants including Affordable Demolitions and Excavations Pty Ltd for the alleged transport to and deposition of waste material at a property in Edmondson Park that was part owned by the prosecutor.

Unusually, this case involved a private prosecution under section 219 of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act), whereas more commonly prosecutions are commenced by authorities such as the New South Wales Environment Protection Authority or local councils. 

The central issue for the Court to determine was whether the class 5 proceedings were commenced outside of the three year limitation period in section 216 of the POEO Act. Section 216(2)(a) states (emphasis added):

"216 Time within which summary proceedings may be commenced

…

(2) Proceedings for an offence under this Act or the regulations may also be commenced—

(a) in the case of a prescribed offence—within but not later than 3 years after the date on which evidence of the alleged offence first came to the attention of any relevant authorised officer..." 

The prosecutor led evidence that the alleged offences first came to the attention of a relevant authorised officer of Liverpool City Council (Council) on 12 September 2018 based on a letter sent on behalf of Council. The summonses were filed on 8 September 2021 which was a short time before the three year limitation period lapsed.

The defendants relied on correspondence from the Council to submit that a relevant authorised officer was aware of the unlawful stockpile of waste material as early as 2016, and as a result, the proceedings were statute barred and should be dismissed because they were commenced later than three years.

To determine the central issue as to whether the proceedings were commenced out of time, the Court considered the following:

(a) The interpretation of ''the relevant authorised officer" under the POEO Act.

(b) The date the alleged environmental offences came to the attention of the relevant authorised officer. 

(c) The meaning of "evidence of the alleged offence" and the elements of the environmental offences.

In short, the Court held that the proceedings for all offences other than those under section 144AAA of the POEO Act were commenced out of time and statute barred. The Court therefore dismissed 22 out of 27 summonses and the prosecutor was ordered to pay the defendants' costs. 

The offences under section 144AAA of the POEO Act were not statute barred because asbestos was only detected in the allegedly deposited material in August 2019 and the presence of asbestos was a central element to the creation of that offence. As such, the summonses relating to section 144AAA of the POEO Act were issued within the three year limitation period in section 216 of the POEO Act.

The prosecutor submitted that the relevant authorised officer was an Assistant Environmental Health Officer who observed the alleged offences in 2018. That submission relied on correspondence between the prosecutor and Council where the prosecutor asked the Council to identify the authorised officer who had first obtained evidence of the offences for the purpose of section 216(2)(a) of the POEO Act. The Council's lawyer responded as follows:

"Identity of the authorised officer who first obtained evidence and the date that evidence was first obtained.

Council’s records seem to confirm that the authorised officer who first carried out an inspection of the land was Mr Cameron Theys. Mr Theys is no longer employed by Council. Councils records seem to confirm that the first inspection of the land took place on 12 September 2018."

Conversely, the defendants submitted that two Land Development Engineers were the relevant authorised officers as they referred to the alleged illegal fill in an email when the prosecutor was applying for a construction certificate in 2017. 

The Court adopted a broad interpretation and found at [65] and [76] that any employee of the Council who is appointed as an authorised officer under part 7.2 of the POEO Act and had dealings with the property can be a "relevant authorised officer" for the purpose of section 216(2) of the POEO Act. The person does not have to be appointed under part 7.2 of the Act as a compliance and enforcement officer.

As such, the Assistant Environmental Health Officer and the two Land Development Engineers were all relevant authorised officers for the purpose of section 216(2) of the POEO Act.

The Court acknowledged that there has been limited judicial consideration of what is meant by the phrase "evidence of the offence" in section 216(2) of the POEO Act. Following a review of the relevant cases, the Court set out at [101] propositions to assist with the interpretation of the phrase which can be summarised as follows:

• Evidence of an offence means evidence of any act or omission constituting the offence.

• What is required by way of knowledge will depend on the offence charged and its elements.

• Evidence of all of the elements of the alleged offence is not required.

• Mere speculation or belief, even if reasonable, will be insufficient to constitute the requisite degree of knowledge of the commission of the alleged offence.

• The phrase must be judged by reference to the contemporaneous knowledge of the prosecutor and not by hindsight.

• The fact that the prosecutor merely has access to information that would constitute evidence of the alleged offence will not be sufficient to establish the requisite knowledge.

The Court went further and rejected the prosecutor's proposition that a physical inspection of the property was the only means by which evidence of an alleged offence could be brought to the attention of any relevant authorised officer pursuant to section 216(2) of the POEO Act (at [127]). The defendants were successful in relying on email correspondence that established there was fill material considered to be waste that had been disposed of in a manner that harmed, or was likely to have harmed, the environment that had been transported to, deposited on and polluted the property. That correspondence was "evidence of the offence" for the purpose of section 216(2) of the POEO Act and started the clock on the statutory limitation period. 

As a fallback position, the prosecutor argued that the offence under section 142A of the POEO Act of polluting land was a continuing offence and the offence continued until the land was restored. This was based on section 242 of the POEO Act which relevantly says (emphasis added):

"242 Continuing offences

(1) A person who is guilty of an offence because the person contravenes a requirement made by or under this Act or the regulations (whether the requirement is imposed by a notice or otherwise) to do or cease to do something (whether or not within a specified period or before a particular time)—

(a) continues, until the requirement is complied with and despite the fact that any specified period has expired or time has passed, to be liable to comply with the requirement, and

(b) is guilty of a continuing offence for each day the contravention continues."

As the waste had not yet been removed from the property, there would have been no statute of limitations for the offence under section 142A of the POEO Act because the offence was continuing. 

The Court applied by analogy the reasoning in the case of Environmental Protection Authority v Bathurst City Council (1995) 89 LGERA 79 to find at [139] that once the material is placed in or on, or otherwise introduced into or onto land, with the effect described in the definition of "land pollution" or "pollution of land" in the Dictionary to the POEO Act, the offence is complete.

The Court concluded that the offence arose and was completed when it was deposited on the land. As such, the Court dismissed the argument made by the prosecutor. 

The Court went on to clarify that the above does not mean land pollution offences under section 142A of the POEO Act cannot be continuing offences. Each case would depend on the facts.

• Before commencing criminal proceedings, careful attention should be paid to whether the proceedings will be commenced before the expiration of the relevant limitation period as there are costs consequences for proceedings that are struck out and dismissed. In this case, reliance on a letter from the Council was not sufficient. Earlier email correspondence referring to evidence of the alleged offences was central to starting the clock on the limitation period.

• Any employee of the Council appointed as an authorised officer under part 7.2 of the POEO Act and who has dealings with a property can be a "relevant authorised officer" for the purpose of section 216(2) of the POEO Act. 

• ​A relevant authorised officer does not need to physically inspect the evidence of an offence for the evidence to be brought to their attention for the purpose of section 216(2) of the POEO Act and starting the clock on the statutory limitation period. Evidence of an email chain with photos was sufficient in this case. 

• Careful consideration needs to be given whether there is evidence of a "continuing offence" under section 242 of the POEO Act. For land pollution offences, the offence may be complete at the time the material is deposited on land, but is dependent on the facts of the case.  

• Finally, it is unclear why class 5 criminal proceedings were commenced rather than class 4 civil enforcement proceedings. Criminal proceedings are punitive in nature and require the prosecutor to prove their case beyond reasonable doubt. In civil enforcement proceedings, orders to remedy or restrain breaches of the POEO Act can be sought and need to be proved on the balance of probabilities which is a lower standard of proof than criminal proceedings. In any event, those carrying out development and other associated activities on land should be aware not only of civil enforcement options that landowners, neighbours, and competitors have under planning and environment legislation, but also criminal prosecution options.