Posted on February 27, 2019 by Katie Mortimer and Carlo Zoppo

Councils’ use of EPA Act Investigative Powers clarified by the Court of Criminal Appeal

In a significant judgment, the Court of Criminal Appeal (Court) has clarified the use of local councils’ investigative powers under s9.22 of the Environmental Planning and Assessment Act 1979 (Act). The Court ruled on when notices to answer questions and produce records will have been validly issued ‘for an investigative purpose‘.

The Court’s judgment set aside a previous decision by the Land and Environment Court that had broad implications for the ability of local councils to obtain information during investigations that could later be used in criminal prosecutions.

Facts of the Case 

The Defendant was charged with 2 contraventions of the Act for carrying out prohibited development and development without development consent. The Prosecutor (Council) commenced a prosecution for these charges in the Land and Environment Court in September 2017.

About 21 months before Council commenced the proceedings, in December 2015, a Council investigation officer issued the Defendant with a notice pursuant to s119J of the Act (now s9.22 following the renumbering of the Act) (s119J Notice). The Defendant provided information in response to the s119J Notice and did not raise an objection under the Act.

In April 2016, Council issued further s119J Notices to various parties including contractors.

In February 2018, after the proceedings were commenced, the Council issued 2 subpoenas to 3rd parties.

The Defendant applied to the Land and Environment Court (LEC) to set aside the subpoenas. The Defendant argued, amongst other grounds, that information gathered in response to the s119J Notices was used to frame the subpoenas. He submitted that the s119J Notices had been issued for the impermissible purpose of a criminal prosecution, and that was not a purpose for which s119J notices may be issued under the Act. Council could not use this illegal conduct as a ‘launching pad’ to seek documents by subpoena that the Council had been informed about through that illegality.

LEC’s Findings 

The LEC agreed with the Defendant. It found that the Council could not satisfy the Court that the s119J Notices were lawful, as they had been issued for the purpose of a prosecution and therefore information obtained via the s119J Notices could not subsequently be used to frame the subpoenas.

Sheahan J of the LEC found that the s119J Notices were, ‘seeking to “clarify” matters, which would later found “particulars of charge”, rather than to inform any later decision … made as between Class 4 and Class 5 proceedings.’ 

His Honour also considered that Council, ‘may well have had a “dual purpose”, but the Class 5 (i.e. criminal) option was a very “substantial”, if not [the] only, or[the] primary, purpose in using s 119J’.

His Honour set aside the subpoena and the Council lodged an appeal to the Court of Criminal Appeal against the LEC’s interlocutory decision to set aside the subpoena.

The LEC decision had far-reaching implications for local councils’ investigative powers. It meant local councils could not rely on any material obtained via a s119J Notice, or information it became aware of via a s119J Notice, in subsequent prosecutions if, when the s119J Notice was issued it was in contemplation that criminal charges may later be laid for breaches of the Act.

These findings seriously hindered the ability of local councils to investigate, then prosecute, a breach of the Act.

Court of Criminal Appeal sets aside LEC’s Findings 

The Court set aside the LEC’s decision.

It found that the Act does not draw any distinction between an investigation of an alleged breach which may result in a criminal prosecution, or an investigation which will result in some other outcome such as taking no further action, issuing a stop work order, or commencing civil proceedings ([88]). To do so would be artificial.

Under the Act, local councils have both the function of investigating breaches of the Act before a prosecution is brought, and also taking various other actions in respect of alleged breaches ([81]).

Before a local council decides to prosecute breaches of the Act, it will need to investigate whether any breaches have occurred. Section 119S of the Act (now s9.31) expressly envisages that investigations will gather information which may be used in subsequent criminal proceedings ([89]).

It may be obvious to a Council investigation officer that a breach may later result in criminal proceedings, however that does not render unlawful, investigative steps taken by the officer to exercise Council’s functions under the Act ([87]).

It is only when a local council ‘brings’ a criminal prosecution for an alleged breach of the Act, that an investigation officer cannot issue notices under s9.22 to advance the prosecution ([98]).

Consequently, the Court found the s119J Notices issued by the Council were not unlawful and the subpoenas were not invalid.

Way Forward – Use of s9.22 Notices 

Section 9.22 (previously s119J) and other investigative powers found in Part 9, Division 9.2 of the Act provide local councils with valuable enforcement tools to investigate breaches of the Act. Council investigation officers can investigate in an effective, cost efficient manner via s9.22 notice. Information and documents obtained by that process provide invaluable assistance in any investigation for a contravention under the Act.

The Court’s decision removes any doubt about how local councils can use and rely on these enforcement tools. It is now clear that the use of these investigative powers will not be unlawful if a prosecution is contemplated for the breach of the Act under investigation.

Council investigation officers can now confidently issue notices to require information and records pursuant to s9.22 of the Act and rely on any material or information they obtain in a subsequent prosecution (subject to any objection raised under s9.31 of the Act).

Read the Court’s judgment in full here Port Macquarie-Hastings Council v Mansfield [2019] NSWCCA 7.

To discuss this blog or investigations generally, please contact Carlo Zoppo, Partner on 8235 9705.