Council Officers' powers to investigate clarified following recent decision of Court of Appeal.
The Court of Appeal has overturned a decision of the Land and Environment Court1 which significantly curtailed the scope of investigation using section 119J (now s.9.22 (EPA Act)) notices requiring information and records.
21 months prior to the commencement of proceedings a Council officer issued Mr Mansfield with a notice to answer questions and produce records pursuant to what was then section 119J of the Act (now s.9.22). The notice required Mr Mansfield to provide details of who carried out illegal work, the dates when the work was undertaken and the plans for the work.
At the time the Council officer issued the notice Council had not yet decided whether to commence criminal proceedings or civil proceedings for demolition or modification of the development. Mr Mansfield did not object to the notice pursuant to section 119(3) of the Act. Investigation of the matter continued, including the issue of further notices to various parties.
Council commenced proceedings in the LEC and subsequently issued subpoenas (using some of the information gathered from the s.119J notices) seeking further documents in relation to the illegal work. Mr Mansfield argued that the notices had been issued for the impermissible purpose of a criminal prosecution and that Council could not use this illegal conduct as a launching pad to then issue subpoenas seeking documents that it had been informed about through that illegality.
Mr Mansfield argued that there is no power under the EPA Act for a Council to prosecute. Accordingly any notice issued under section 119J is invalid if it is issued with a view to commencing criminal proceedings.
LEC found Council cannot issue subpoenas based on evidence arising out of notice
The LEC agreed, finding that Council had decided to commence criminal proceedings before it issued the notices so the notices were issued for an ultra vires purpose. The LEC set aside the subpoenas finding that the notices had been issued unlawfully. The fact that the information and documents produced in response to the notices was later used to frame the subpoenas meant that the subpoenas should be set aside.
In making this finding, the LEC relied heavily on the case of Zhang v Woodgate and Lane Cove Council2("Zhang"). In that case, similar to s.119J the power under s.118BA of the EPA Act entitled Council to issue a notice requiring a person to answer questions to enable a Council "to exercise its functions under this Act." Mr Zhang argued that s.118BA could be used to require a person to answer questions to enable the Council to perform regulatory or administrative functions under the Act, such as determining whether criminal proceedings for an offence against the Act should be instituted. However it could not be used to obtain information to enable the Council to exercise prosecutorial functions after criminal proceedings had already been commenced by the Council. Preston CJ in Zhang found the notices were invalid.
The function (the power) of a Council to prosecute for an offence against the EPA Act or the regulations is not conferred by the EPA Act but rather by the Local Government Act.
The LEC found that it was clear to Council that offences might have been committed in developing the subject land and that Council might consider bringing charges for carrying out the development without consent. When the first notice was issued, the Council officer's position had moved beyond issuing an order under s.121B of the EPA Act or a penalty infringement notice.
Court of Criminal Appeal sets aside LEC findings
The Council argued, on appeal that the purpose of investigating the possible breach of the Act is not only to discover whether a breach has been committed, but also to determine whether any regulatory action should follow and what it should be.
Critically for Councils the issue is not whether the Council has power to prosecute or not prosecute but what is the source of that power, or, in other words, is criminal prosecution a function of a local Council under the EPA Act? If not, then its power to issue notices for a criminal prosecution will be curtailed.
The Court of Appeal held that the LEC's decision rested on an artificial distinction. Given the functions which the EPA Act imposes on councils and the power it grants to investigation officers there could be no question as to the validity of either the notices issued to Mr Mansfield before the criminal proceedings were brought or the subpoena later issued after they were commenced.
The distinction between an investigation conducted by a Council into alleged breaches of the EPA Act for the purpose of a criminal prosecution and investigations of such breaches conducted for the other purposes for which they may be pursued under the EPA Act is not a distinction drawn by the Act. Nor is it found in the Local Government Act. To the contrary, express provisions in the EPA Act actually envisage that investigations into breaches of that Act will result in the gathering of information which may be used in subsequent criminal proceedings.
The Court found that the parliament cannot have intended that a s.119J notice, issued during an investigation in order to obtain information about to whom a council should direct a stop work or rectification order, might be ultra vires simply because a criminal prosecution was also contemplated at that time.
The reason for Councils being given wide investigative functions under the EPA Act, given all that it regulated, was obvious. Long before a Council makes a decision to prosecute a breach of the Act, it will have to investigate whether breaches have occurred and in some cases, deal with them swiftly. It is only when an investigation has led a Council to bring a criminal prosecution under the Local Government Act, that an investigation officer cannot use s.119J of the Act to issue a notice in order to advance that prosecution, because that is not a function conferred on the Council by the Act.
Using Section 9.22 notices
Part 9 Division 2 of the Act provides broad and useful investigation powers for Council officers. In particular, notices to produce under section 9.22 and require answers under section 9.23 provide Council with powerful and efficient tools to investigate breaches of the Act. The decision of the Court of Appeal in Port Macquarie-Hastings Council v Mansfield3 provides important clarity on how Councils can use those enforcement tools. Use of Council's investigative powers will not be unlawful simply because a prosecution is contemplated at the time the notices are issued.
1Port Macquarie – Hastings Council v Mansfield  NSCCA 7
2(2015) LGERA 1;  NSWLEC 10
3  NSWCCA 7
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