Australia: Council's power to issue a Section 118BA Notice To Answer Questions

Last Updated: 1 June 2015
Article by Maysaa Parrino

In brief - Land and Environment Court determines that Notice is invalid

In Zhang v Woodgate and Lane Cove Council, the Land and Environment Court of NSW recently held that the council's Notice To Answer Questions was invalid because it was issued not for regulatory and administrative functions under the EPA Act, but for prosecutorial functions in criminal proceedings.

Council's powers under Section 118BA questionable

This firm's longstanding position has been that council's powers to require answers and record evidence pursuant to section 118BA of the Environmental Planning and Assessment Act 1979 (NSW) ("EPA Act") are questionable and in some instances abused.

This position was validated by Chief Justice Preston of the Land and Environment Court in the recent case of Zhang v Woodgate and Lane Cove Council [2015] NSWLEC 10. The decision was handed down on 6 February 2015.

Section 118BA enables authorised persons to require answers and record evidence to exercise its functions under the EPA Act

Section 118BA provides that a council can require an accredited certifier, a person carrying out building work or subdivision work, or any other person suspected on reasonable grounds to have knowledge of matters in respect of which information is reasonably required to enable council to exercise its functions under the EPA Act, to answer questions in relation to those matters and have them recorded.

Council alleges that excavation works not in accordance with development consent

Lane Cove Council granted Mr Zhang development consent to carry out alterations and additions to the existing dwelling house. During the course of his development, Lane Cove Council alleged that Mr Zhang carried out excavation works which were not in accordance with the development consent.

Council commences criminal proceedings in Land and Environment Court

During March 2014, Mr Woodgate (a building surveyor employed by the council) commenced criminal proceedings against Mr Zhang in the Local Court, pursuant to section 14 of the Criminal Procedure Act 1986 (NSW) ("CP Act") for an offence under section 125(1) of the EPA Act, for carrying out development otherwise than in accordance with a development consent, contrary to section 76A(1)(b) of the EPA Act.

Prior to the council's issue of its brief of evidence to Mr Zhang, Mr Woodgate issued a notice pursuant to section 118BA to Mr Richard Ferguson, the author of Mr Zhang's Statement of Environmental Effects, requiring him to answer questions in relation to the excavation of Mr Zhang's property ("the Notice").

Judicial review proceedings in Land and Environment Court

Mr Zhang commenced class 4 judicial review proceedings in the Land and Environment Court in relation to the Notice, on the following grounds.

Statutory construction - Section 118BA grants power to require a person to answer questions only for the purpose of obtaining information to enable council to perform regulatory or administrative functions under the EPA Act, and not for obtaining information to enable council to exercise prosecutorial functions in relation to the current criminal proceedings.
Contempt of court - It is contempt of court to exercise power under section 118BA for the sole or dominant purpose of obtaining evidence to be used in criminal proceedings against Mr Zhang that would amount to an advantage which could not be obtained under the procedural rules of the Local Court.
Defective notice - The Notice failed to identify the relevant conditions precedent to the proper exercise of the power under section 118BA.

Court determines that Notice invalid

Initially, Pain J granted an interlocutory injunction restraining the exercise of powers under the Notice pending the final determination of the proceedings.

Ultimately, Mr Zhang was successful on the first ground, but not the second. On the third ground, the court held that the Notice was defective in a technical respect because it failed to indicate to the addressee the matter with which it was concerned. Notwithstanding this, success on the first ground was sufficient for the court to determine that the Notice was invalid.

Council found to have overstepped the limit of its powers under Section 118BA

In particular, Preston CJ held that:

  • It is not a function of council under the EPA Act, to institute a prosecution for an offence against the EPA Act. The right of a council to institute a prosecution is found in section 14 of the CP Act, whereas the power of a council to institute proceedings for an offence under the EPA Act is conferred by the Local Government Act 1993 (NSW).
  • Accordingly, the power under section 118BA cannot be used to issue a notice to obtain information to enable a council to exercise its function to prosecute for an offence against the EPA Act, because that function is not a function under the EPA Act.
  • Section 118BA can still be used against a person other than a defendant in pending criminal proceedings.
  • A contempt of court requires the statutory power to be exercised in such a way that interferes with the course of justice. The issue of the Notice did not amount to a contempt of court.

Ultimately, the Notice was declared to be ultra vires, or beyond the powers of the council, and therefore invalid.

Maysaa Parrino
Planning, infrastructure and environment
CBP Lawyers

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Maysaa Parrino
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