Posted on October 27, 2020 by James Fan and Carlo Zoppo

Council investigation notices: what to do with the information received?

A recent decision in Land and Environment Court confirms that a prosecutor can use information obtained under a compulsory investigative notice for the purposes of gathering further evidence in prosecution proceedings.

In this case the Court rejected a argument that issuing a subpoena to a third party in reliance on information obtained under compulsory notices was an abuse of process. 

Facts of the Case

In Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd, the defendant was charged with offences under the Environmental Planning and Assessment Act 1979 (EPA Act) in that it had breached its development consent for a “temporary mobile asphalt batching plant” by exceeding conditions imposed for daily production limits.

The Council, in its investigation had issued a notice pursuant to s 119J (Notice) of the EPA Act (now s 9.22) to the Roads and Maritime Service (RMS). The Notice sought records regarding the defendant’s delivery of material for regional road building projects completed by the RMS. Records were subsequently produced by the RMS in response to the Notice. 

The Council subsequently laid three charges for breaches of the daily limit conditions. Shortly after the commencement of the prosecution, a subpoena was issued by the prosecutor to the RMS, seeking documents that were in effect the same as those produced by RMS in response to the Notice. The records sought by the prosecutor related to a range of dates that were beyond the dates charged. The defendant sought orders from the Court to set aside the subpoena to RMS side or that the prosecutor be prevented from access to documents produced in answer to the subpoena.

As a result of the charges being found to be defective, one charge was dismissed and two charges remained following amendment. We have previously written on these aspects of the prosecution proceedings regarding duplicity. See our article on that issue here

The Issues Before the Court

One issue for the Court was whether it was an abuse of process to obtain documents pursuant to the Notice when coupled with the subsequent issuing of a subpoena . The Court of Criminal Appeal had previously held that a council investigating breaches of the EPA Act can rely on information gathered under compulsory notices under s 119J for the purposes of seeking information by further compulsory notices or subpoena: see Port Macquarie-Hastings Council v Mansfield [2019] NSWCCA 7 and our article on that case.

This decision was similarly decided by Moore J who found that seeking documents by subpoena, relying on information obtained under compulsory investigative notice, was not an abuse of process. 

An additional issue was whether the records sought under the subpoena on the range of dates was appropriate given that only two charges for specific dates remained. The prosecutor relied on the fact that the records from RMS regarding additional days was evidence that there was a “tendency” of the defendant to breach its consent relating to daily limits. The Court accepted that the records regarding the additional days had probative value in the prosecution and did not restrict access to the documents. 

Use of Notices

As raised in previous articles, the use of compulsory notice under s 9.22 of the EPA Act and other investigative powers under Part 9, Division 9.2, provides local councils with a powerful and valuable enforcement tool to investigate breaches of that legislation. 

This decision of Moore J confirms the Court of Criminal Appeal decision that it is open to a prosecuting authority to rely on information obtained in answer to a compulsory notice. Further, the decision highlights the utility of such notices in obtaining information and evidence as part of prosecution proceedings for a breach of the EPA Act. 

LTL provides advice on the drafting and issuing of compulsory notices. We also provide training to investigation officers on the use of such notices as well as investigation techniques. 

To discuss this blog or investigations generally, please contact Carlo Zoppo (Partner) on 8235 9705 or James Fan (Senior Associate) on 8235 9706.