Posted on February 27, 2015 by
A warning – use of investigatory notices under the EPA Act once a prosecution has commenced
Can a Council use its powers under s118BA of the Environmental Planning and Assessment Act 1979 (EPA Act) to compel a person to provide answers in relation to a breach of the Act, where a prosecution has been commenced in relation to that breach?
In Zhang v Woodgate and Lane Cove Council  NSWLEC 10, Preston CJ held that it can not.
Mr Zhang was granted development consent to carry out alterations and additions to an existing dwelling house. Council alleged that he had over excavated the site, in contravention of the consent, and commenced proceedings against him in the Local Court.
After those proceedings had been commenced, Council issued a written notice under s118BA of the EPA Act requiring a consultant who had prepared information lodged with modification applications made by Mr Zhang, to attend Council’s offices to answer questions about the over excavation of the site.
Mr Zhang’s solicitors objected to the notice and ultimately, brought proceedings in the Land and Environment Court challenging the validity of the notice.
Section 118BA of the EPA Act states:
118BA Power of authorised persons to require answers and record evidence
(1) A person authorised to enter premises under this Division (an authorised person) may require an accredited certifier, a person carrying out building work or subdivision work or any other person whom the authorised person suspects on reasonable grounds to have knowledge of matters in respect of which information is reasonably required to enable the council concerned to exercise its functions under this Act to answer questions in relation to those matters. [My Emphasis]
Mr Zhang successfully argued before Preston CJ that a s118BA notice could only be issued for the purpose of enabling Council to exercise its functions under the EPA Act, not for the purpose of obtaining information to enable Council to exercise its prosecutorial functions once it had commenced a prosecution. A council’s prosecutorial function was not, argued Mr Zhang, a function under the EPA Act.
Preston CJ held that it is not a function of a council under the EPA Act to institute a prosecution for an offence against that Act. A council’s right to institute a prosecution arises from s14 of the Criminal Procedure Act 1986. The power of a council to institute proceedings for a breach of the EPA Act is conferred directly by ss21, 684 and 687 of the Local Government Act 1993 (LG Act), or indirectly, because it is incidental or consequential upon the exercise of functions conferred on a council under the LG Act.
There has been longstanding authority that the use of a statutory power by a party to assist it obtaining evidence in the course of litigation can amount to a contempt of court if it gives the party some advantage that the ordinary rules of procedure would deny the other party, as this would interfere with the course of justice (Environment Protection Authority v Caltex Refining Co Pty Limited (1993) 178 CLR 477). In the present case, Preston CJ held that the s118BA notice did not breach that principle. Nonethleless, it is clear from Zhang that even so, a council will not be able to rely on s118BA once it has commenced a prosecution.
Although Preston CJ does not expressly say so, the decision in Zhang does not appear to mean that a council is prevented from issuing a s118BA notice when investigating a possible breach of the EPA Act. However, once a council commences a prosecution, it cannot issue a s118BA notice to gather more information in relation to the prosecution.