A successful prosecution requires careful and considered action to be taken by prosecutors from the initial investigation stages, through to the final stages of the enforcement process. There are a number of existing guidelines which provide helpful information on some of the key principles and processes that local enforcement authorities should refer to when exercising their enforcement powers or obligations. In addition, it is also beneficial to reflect on real life examples of cases where a prosecution has or has almost been unsuccessful, so as to pin point what potential issues can arise in such matters and what steps can be taken so that the same problems do not undermine investigations and the success of future prosecutions.

Investigation techniques and the limitations on certain powers

Once a council has concluded that an investigation of an alleged breach is necessary, it is important that a considered and coordinated method for carrying out the investigation is followed by the council, which will require proper record keeping and monitoring of the unauthorised activity to be undertaken. However, before an investigation proceeds to this point, it is critical that the council has confirmed it has the jurisdiction and power to enforce compliance. This is critical so that the investigation or prosecution of a matter is not subsequently challenged by the accused on the basis that the investigator has unknowingly acted without the appropriate delegations of authority to carry out the investigation or obtain certain evidence in connection with the investigation.

Limitations on powers of investigation officers to require answers and record evidence

An example of where a council strayed beyond the powers it has under the Environmental Planning and Assessment Act 1979 (EP&A Act) was considered in Zhang v Woodgate and Lane Cove Council [2015] NSWLEC 10. In this case, Lane Cove Council had issued notices under former s118BA of the EP&A Act (now s9.23) to a consultant that the defendant had engaged as part of the carrying out of unauthorised works, in an attempt to compel the consultant to provide answers in relation to the alleged breach of the EP&A Act, where criminal proceedings had already been commenced in relation to that breach. The NSW Land and Environment Court found that the notice issued to the consultant was invalid because the notice failed to identify the matter in relation to which the consultant was required to answer questions. The Court held that because the notice failed to identify these matters, it was in contravention of the requirements for such notices under s118BA of the EP&A Act.

Limitations on notices requiring persons to provide information and records

A similar issue was considered in Port Macquarie-Hastings Council v Mansfield [2019] NSWCCA 7. In this case the defendant built a large structure without development consent. When the unauthorised works were brought to the council's attention they issued notices under former s119J (now s 9.22) of the EP&A Act for information to be provided by the defendant. After this, and once proceedings had been commenced by the council, subpoenas were issued based on those notices. The key argument raised by the defendant in these proceedings was that these notices were issued while the council was aware it was considering bringing charges against the defendant, and thus the notices were invalid as it was an improper use of the power granted under s119J of the EP&A Act. Fortunately, in this case, despite the alleged invalidity of the notices the Court decided in favour of the council, stating that the issuing of the notices was still part of the investigation of a potential EP&A Act breach, and even if it was issued for dual purposes, the EP&A Act provides the power for the notices to be issued as they were to assist the council in determining potential contraventions of the EP&A Act.

The abovementioned cases highlight the importance of ensuring strict compliance with the requirements for any notices that a council issues in relation to a prosecution. If a council fails to comply with the relevant statutory requirements in the issuing of notices, there is a reasonable risk that any evidence obtained pursuant to such notices will not be admissible in the proceedings.

Best practice interviewing techniques

In Ku-ring-gai Council v John David Chia (No 15) [2019] NSWLEC 1, the Court was asked to consider whether the investigation and interviewing techniques used by an investigator resulted in the corroboration of evidence of a witness, which would cause the witness' evidence to be deemed unreliable and not taken into account by the Court on this basis. Ku-ing-gai Council had hired a private investigator who had allowed witnesses to be interviewed together as well as sharing with witnesses information that had been provided from other witnesses and also trying to reach witnesses through other witnesses (that may have been complicit). The judge ultimately found that the way the investigation had been conducted and the interviewing of witnesses was 'less than ideal', however after considering the facts of the case he ultimately determined that no corroboration had occurred, despite the opportunities for corroboration that had been provided by the investigator. In this case, a number of best practice interviewing principles for councils to adhere to were identified, including the following:

  • it is important to keep witnesses separate during the interview process;
  • witnesses should never be interviewed together because there is a chance of contamination and the witness with the stronger personality may overbear the witness with the weaker personality;
  • it is important investigators do not suggest material to witnesses as to do so may influence what they say and deprive the investigator of the ability to check what the witnesses actually know;
  • by imparting information to a witness, the witness is put on notice in relation to specific issues which may mean that a complete and independent version of what occurred cannot be obtained; and
  • where it is within his control, the investigator should not allow Witness A to come into contact with Witness B unless he/she had an independent version of facts from each of them.

In addition to the above, it is also important for investigators to remember that individuals have a right to silence and the privilege against self-incrimination (unless they have been directed or compelled under the EP&A Act or the Protection of the Environment Operations Act 1997 to answer questions).

If during questioning an investigator forms a belief that there is sufficient evidence to establish that the person has committed an offence, then they must caution the person of their right to silence. If they do not, then any evidence obtained from that point on may be held to have been improperly obtained.

It has also been held that evidence may be improperly obtained where an employee (who is not a suspect) is making admissions against their employer and they have not been cautioned.

Has council commenced the proceedings in time?

The right to take legal action in respect of an alleged unlawful activity will often be subject to a legislative time limit. Depending on the offence, the applicable statute of limitation may restrict a council from taking action from the date of the alleged offence, or for other matters, the starting time may be from the point in time that council first became aware of the offence.

Subject to the investigating officer ensuring that he/she has the proper delegated authority required to commence a formal investigation, the investigator must ensure that all the steps that need to be undertaken in connection with the investigation take into account any statute of limitation that may apply. Without properly planning the investigation process, councils may expose themselves to a risk that by the time the investigation is complete, they may already be out of time to commence proceedings.

In May 2018 Cumberland Council experienced firsthand a challenge against proceedings it brought against an individual for the carrying out of unauthorised building works in 2014, which resulted in the development of a mosque without a construction certificate having been first obtained. In Cumberland Council v Tony Younan; Cumberland Council v Ronney Oueik; Cumberland Council v H & M Renovations Pty Ltd [2018] NSWLEC 145, Cumberland Council commenced proceedings alleging that the defendant failed to comply with a development control order, thereby committing an offence in contravention of s9.37 (formerly s125) of the EP&A Act. Due to the relevant time limit under the EP&A Act having expired, Cumberland Council sought to bring the proceedings under former s127(5A) (now s9.57(5A)) of the EP&A Act which provides that proceedings for any such offence under the EP&A Act or regulations may be commenced within, but not later than, 2 years after the date on which "evidence of the alleged offence" first came to the attention of any investigation officer who is a member of the staff of the Department. The defendant argued that the proceedings were commenced out of time.

Ultimately in this case the Court found that "evidence of the alleged offence" means that evidence capable of indicating that an offence has been committed has to have been secured. In the case of Cumberland Council's proceedings, the Court held that the investigation officer needed to have evidence that construction works on the mosque had commenced and evidence brought to his or her attention capable of showing that a construction certificate had not been obtained when this occurred. Once evidence of both of these elements was brought to the investigating officer attention, the time limit provided by s127(5A) would have been engaged. As council was unable to demonstrate that both of these elements were satisfied, the Court determined that council had commenced the proceedings out of time.

Separately, in the case of Willoughby City Council v Screnci [2015] NSWLEC 192, Willoughby Council charged the defendant with two offences under s125 (now s9.50) of the EP&A Act for the carrying out of a large amount of development work without development consent. The key issue which arose in this case was whether the proceedings were statute-barred by reason of being commenced after the expiration of the relevant limitation period of two years fixed by s127(5) of the EP&A Act. By the time proceedings had been commenced, it had been more than two years since the builder (as a witness) had finished the work. In these circumstances, council was out of time to commence proceedings and prevented from bringing action against the defendant under s127(5). Amongst other matters, the Court was required to consider:

  • whether the onus was on council as the prosecutor in this case to establish that the proceedings were commenced in time; and
  • whether the statutory bar upon commencement of proceedings could be waived by the Court.

The Court concluded that in circumstances where the commencement of the proceedings for an offence charged is the subject of a statutory limitation period, the prosecutor bears the onus of establishing that the proceedings have been commenced within the relevant time limit. It is therefore important that council is able to provide evidence to establish that any proceedings it commences have been brought in time.

Further, once the statutory limitation provision is validly raised by a party, the Court must give effect to the statutory bar that applies. Even if a plea of guilty has been entered by the defendant in relation to the offence prior to the issue of the statutory bar issue being raised, the Court does not have discretion to maintain the defendant's guilty plea.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.