Citation: Port Macquarie-Hastings Council v Mansfield [2019] NSWCCA 7
Court: Court of Criminal Appeal, NSW
Date: 25 February 2019
Judge(s): Hoeben CJ at CL, Harrison J, Schmidt J
Background
Port Macquarie-Hastings Council received a complaint in September 2015 about unauthorised building works on a rural property. A Council investigation officer issued notices under s 119J of the Environmental Planning and Assessment Act 1979 (EPA Act) to the accused landowner, requiring him to answer questions and produce records about who carried out the work, when it was done, and what plans existed. The accused answered those notices without objection.
Nearly two years later, in September 2017, the Council commenced criminal proceedings in the Land and Environment Court, charging the accused with carrying out prohibited development and development without consent under ss 76B and 76A of the EPA Act. The Council subsequently issued subpoenas to two third-party companies connected to the development.
The accused applied to set aside the subpoenas, arguing that the s 119J notices had been issued unlawfully because the Council had already decided to pursue a criminal prosecution when it issued them. The trial judge, Sheahan J, accepted that argument, set aside the subpoenas, and the Council appealed.
Legal Issues
- Whether s 119J of the EPA Act permits a council to issue an investigation notice to a person when the council considers a future criminal prosecution against that person to be likely or even probable.
- Whether the s 119J notices issued in late 2015 and 2016 were ultra vires (beyond power) because they were issued for the purposes of a criminal prosecution rather than for a legitimate regulatory or investigative function under the EPA Act.
- Whether the subpoenas, which were framed using information gathered through the notices, should be set aside on the basis that they were tainted by that alleged unlawfulness.
- Whether Sheahan J's discretionary decision to set aside the subpoenas disclosed a House v The King error, which is the threshold a party must meet to overturn a discretionary judgment on appeal.
Decision
The Court of Criminal Appeal allowed the appeal, finding that the s 119J notices were not ultra vires. The Court held that the key question was whether the notices were issued to enable the Council to exercise its investigation functions under the EPA Act. On the facts found by Sheahan J, that was precisely what the investigation officer had done: he issued the notices in response to a complaint about illegal building works, to determine who carried out the works and under whose authority, so the Council could decide what action to take.
The Court distinguished the earlier Land and Environment Court decision in Zhang v Woodgate and Lane Cove Council [2015] NSWLEC 10, on which Sheahan J had substantially relied. In Zhang, a notice had been issued to a third party after criminal proceedings had already been commenced, effectively to assist in the prosecution. Here, the notices were issued before any decision to prosecute had been made. The Court confirmed that the Zhang principle applies once proceedings are on foot: a council cannot use s 119J notices against the defendant in those proceedings after they have been commenced.
The critical distinction the Court drew was between a council that has decided to commence criminal proceedings and a council that is still investigating and considering its options. The fact that an investigation officer considers prosecution likely at the time of issuing a notice does not render that notice ultra vires, provided the notice is genuinely issued for an investigation purpose under the Act. Section 119S of the EPA Act expressly contemplated that material produced in response to a s 119J notice could later be used in criminal proceedings.
Because the notices were lawfully issued, the subpoenas to the third parties were not tainted by any unlawfulness, and there was no proper basis for setting them aside on the ground that had been decisive below. The Court set aside Sheahan J's orders and remitted the matter for further determination.
Orders Made
- Leave to appeal granted.
- Appeal allowed.
- Orders made by Sheahan J on 16 July 2018 set aside.
- Matter remitted to Sheahan J for determination in accordance with the decision of this Court.
Key Takeaways
- A council investigation notice issued under s 119J of the EPA Act is not rendered ultra vires merely because the issuing officer considers a future prosecution likely, provided the notice is genuinely issued for the purpose of enabling the council to exercise its investigation functions under the Act.
- The Court of Criminal Appeal drew a clear temporal line: once a council has commenced criminal proceedings, it cannot issue s 119J notices to the defendant in those proceedings to assist the prosecution. That power is exhausted at that point.
- Under s 119S of the EPA Act, material produced in answer to a s 119J notice can lawfully be used in subsequent criminal proceedings, which reflects the legislature's contemplation that investigation and prosecution may follow each other.
- The Zhang principle, which holds that s 119J-type notices are invalid when issued in aid of already-commenced criminal proceedings, was confirmed but confined to its proper scope: it does not extend to the pre-prosecution investigation phase.
- In dismissing the challenge to the subpoenas, the Court emphasised that the subpoenas to third parties in the criminal proceedings were independently valid and were not infected by any unlawfulness in how the investigation had been conducted.
Legislation and Cases Referenced
Legislation
- Environmental Planning and Assessment Act 1979 (NSW), ss 76A, 76B, 118BA, 119A, 119C, 119F, 119J, 119S, 121B, 125
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Procedure Act 1986 (NSW), ss 172, 173
- Local Government Act 1993 (NSW), ss 21, 22, 23, 684, 687
Cases
- House v The King (1936) 55 CLR 499; [1936] HCA 40 (the standard for overturning a discretionary judgment on appeal)
- Zhang v Woodgate and Lane Cove Council (2015) LGERA 1; [2015] NSWLEC 10 (the key first-instance decision distinguished on its facts)
- SAS Trustee Corporation v Miles [2018] HCA 55