Enforcement and Compliance - Some Traps to Avoid

Unlawful Development – Prosecution, Civil Enforcement or both?

Sutherland Shire Council v Sud [2015] NSWLEC 44 (24 August 2015)

Craig J

The Land and Environment Court’s decision in Sutherland Shire Council v Sud serves as a useful reminder of the underlying principles, and key differences, between criminal prosecution and civil enforcement proceedings available under the Environment Planning and Assessment Act 1979.

A key feature of this case was the Council’s decision to utilise both mechanisms against the Respondents in relation to development that had been carried out otherwise than in accordance with the development consent. The Court ultimately endorsed the Council’s approach as it acknowledged that the consequence of one action was to punish the offender, while the other was aimed at remedying the environmental harm caused by the breach. The order in which criminal and civil proceedings are taken is, however, of fundamental importance in achieving these desired outcomes.

Background

Before the Council commenced civil enforcement proceedings in the Land and Environment Court it had prosecuted Mr Sud in the Local Court in relation to the unauthorised development. Mr Sud entered a plea of guilty and the Local Court convicted him and ordered him to pay a fine in the sum of $30,000.00 as well as the Council’s legal costs in the sum of $9,634.00.

Issues and legal principles

In responding to the Council’s civil enforcement action, the respondent argued that bringing civil enforcement proceedings under section 123 of the Act was an abuse of process because the statutory scheme required the council to elect to either prosecute for an offence or to seek civil enforcement, but not both. To find otherwise, it was argued, would result in a “double punishment”.

The respondents’ argument was based on their construction of section 127(7) of the Act. That provision is in the following terms:

(7) A person shall not be convicted of an offence against this Act or the regulations where the matter constituting the offence is, at the date upon which the conviction would, but for this subsection, be made:

(a) the subject of proceedings under section 123, which proceedings have not been concluded, or

(b) the subject of an order made under section 124.

Proceedings taken under section 123 and orders made under section 124 are civil enforcement proceedings.

The Court rejected the respondents’ argument and held that section 127(7) does not require a council to make an election between criminal prosecution or civil enforcement proceedings. However, the Court confirmed that a council needs to think carefully about whether, and when, to commence civil enforcement proceedings because the commencement of civil enforcement proceedings under section 123 or the making by the Court of an order remedying or restraining a breach of the Act under section 124 will prevent a council from subsequently taking criminal action for an offence based on the same breach. The Court explained that the basis for this restriction is enshrined in the procedural fairness principles applicable to a criminal prosecution, such as the right to silence. Procedural fairness precludes a criminal prosecution (which must be proved to the criminal standard of “beyond reasonable doubt”) taking place if the issues have already been aired and decided in a civil case (where the relevant standard is lower: “on the balance of probabilities”).

In coming to this decision, the Court discussed the different purposes of criminal proceedings and civil enforcement proceedings. The Court explained that criminal proceedings are intended to punish the offender, to deter both the offender and others from engaging in similar conduct in the future, to publicly denounce the offender’s behaviour and to recognise the relative harm caused by the offence in the sentence imposed.

By contrast, the Court observed that civil enforcement proceedings are intended to remedy or restrain breaches of the Act and do not involve any element of punishment. This led the Court to conclude that the statutory scheme did not expose a person to “double punishment” and that the commencement of civil enforcement proceedings following a successful prosecution did not amount to an abuse of process. It was open to the council to take both criminal proceedings and civil enforcement proceedings in relation to the same incident provided the criminal proceedings were dealt with first.

Giving orders – the importance of careful drafting

Manly Council v Leech [2015] NSWLEC 149 (17 September 2015)

Biscoe J

This case is yet another in which the poor drafting of an order has led to the Court holding it to be invalid. The order in this case was an order given under section 121B of the Environmental Planning and Assessment Act 1979; however, the Court’s findings apply with equal force to orders given under section 124 of the Local Government Act 1993.

When giving notice of a proposed order and also when giving an order, it is very tempting to cut and paste from earlier notices and orders given by the council. As this case demonstrates, this can be dangerous. It is very important to make sure that the information contained in a notice of proposed order is the information required to be included in such a notice and that the recipient is being given an opportunity to make representations about whether the order should be given and, if so, in what terms. Likewise, it is essential that the information contained in any subsequent order is clear and unambiguous and does not create any confusion about whether it constitutes an order that must be complied with or is simply notice of an order that the Council is intending to give in the future.

The order the subject of the Court’s decision in Manly Council v Leech was a “stop work” order given pursuant to item 19(a) of the Table to section 121B. While it is open to a council to give notice of a proposed order pursuant to item 19 of the Table to section 121B (and it will often be good practice to do so), the Act does not require notice to be given of such an order: section 121D(a).

The “order” the subject of the proceedings was in the following terms:

ENVIRONMENTAL PLANNING & ASSESSMENT ACT 1979

SECTION 121 B

ORDER

TAKE NOTICE that Manly Council (“Council”) intends to give to you an Order in terms of Order No 19(a) in the Table to Section 121B of the Environmental Planning and Assessment Act 1979 (“the Act”) in the terms set out below on the grounds that building works are being carried out unlawfully in contravention of the Act. [emphasis added]

Below that there followed a page and a half of words under the headings: Schedule of Works, Time Period for Compliance with Orders, Reasons for Order, Offence, Penalty, Execution of Order by Council, Right of Appeal Against Order, and Orders that Make or are Likely to Make Residents Homeless.

The Court observed that a statutory order requiring someone to do, or not do, something that is subject to penal consequences will be strictly construed. Consequently, the validity of such an order depends on strict compliance with the statutory conditions governing its issue, and it will not be enforced by the Courts unless the order is expressed in clear and unambiguous language.

In the present case, the Court pointed out that the document began by stating that the Council “intends” to give an order. It was framed in terms of an order the council intended to give in the future and the Court found that this led to confusion about whether the Council required immediate compliance with the order or whether it was merely giving some sort of warning notice. In those circumstances the Court held that the order was invalid.

This case serves as a timely reminder for councils to review the template documents they use for the giving of notice of proposed orders and for giving orders to ensure that, if challenged, they will stand up to scrutiny by the Court.