Posted on September 13, 2015 by Carlo Zoppo
Court upholds Council’s right to seek remedial orders by class 4 proceedings following a criminal prosecution
In a recent decision of the Land and Environment Court, Justice Craig held that a Council, dealing with unlawful development contrary to the Environmental Planning and Assessment Act 1979 (EPA Act), is not required to choose between a criminal prosecution for the breach, or bringing class 4 proceedings for remedial orders under s124 of the EPA Act. Craig J found that it was open to the Council to seek remedial orders requiring demolition of the unlawful development after the criminal proceedings for the contraventions had concluded and the defendant had been fined $30,000 and ordered to pay nearly $10,000 in costs.
Chronology of events
The issue arose in the case of Sutherland Shire Council v Sud  NSWLEC 44. The Second Respondent, project manager to the development, was the only active respondent in the proceedings. The relevant facts of the case are as follows:
- 22 April 2010 – Council granted development consent for demolition of an existing dwelling and the construction of a new dwelling, pool and detached garage;
- 10 November 2011 – a Council officer inspected the land and observed that the roof slab has been extended 3m beyond what was shown in the plans, supported by 5 columns not shown on the plans;
- 16 November 2011 – Council refused an application to modify the development consent to extend the roof slab;
- 19 January 2012 – Council refused a second modification application to extend the roof slab;
- May – June 2012 – the Developer lodged an appeal to the Land and Environment Court against Council’s refusal of second modification application;
- 25 May 2012 – Council conducted a prosecution in the Sutherland Local Court alleging that development was undertaken contrary to a development consent (contrary to s76A(1)(b) of the EPA Act);
- 13 June 2012 – the Land and Environment Court partly allowed the appeal against Council’s second refusal to modify the development consent but the extension of the roof slab and its supporting columns is expressly excluded from the approval;
- September 2012 – Second Respondent pleaded guilty to the criminal charges;
- 12 December 2013 – Second Respondent is convicted at Sutherland Local Court, fined $30,000 and ordered to pay $9,634 for the Council’s costs;
- 17 January 2013 – Council refused an application under s149B of the EPA Act for a building certificate in respect of the extension of the roof slab;
- 24 September 2013 – Land and Environment Court dismissed an appeal against Council’s refusal to issue a building certificate;
- 15 August 2013 – Council brings class 4 proceedings under s123 of EPA Act, claiming that the Second Respondent has breached the development consent, seeking an order for the partial demolition of the roof slab (among other orders).
The Second Respondent’s submissions
The Second Respondent submitted that Council was not entitled to an order to partially demolish the roof slab, submitting that so much of the Council’s claim should be permanently stayed or struck out as an abuse of process, having regard to s127(7) of the EPA Act.
Section s127(7), it was submitted, ought to be interpreted ‘on a silent premise’ that an election must be made either to prosecute for a breach of the EPA Act or to seek a remedial order under s124. This interpretation was said to give effect to the legislative intention to avoid subjecting persons to ‘double punishment’; the first punishment being the imposition of a penalty in the form of a fine, the second punishment being the costs of complying with a rectification order.
The Second Respondent alternatively submitted that if a stay was not justified on the basis of the ‘double punishment principle’, the remedial order should be stayed on the grounds that it was unfair because a relevant consideration on penalty in the proceedings before the Local Court (the criminal proceedings) was the cost of complying with an order made under s 124.
Section 127 of the EPA Act
Section 127 relevantly provides
‘(7) A person shall not be convicted of an offence against this Act or the regulations where the matter constituting the offence is, at the date upon which the conviction would, but for this subsection, be made:
(a) the subject of proceedings under section 123, which proceedings have not been concluded, or
(b) the subject of an order made under section 124.
(8) Nothing in subsection (7) precludes a conviction being made where the proceedings referred to in paragraph (a) of that subsection are concluded otherwise than by the making of an order under section 124.’
Decision of the Court
His Honour held that the interpretation of s127 put forward by the Second Respondent was not supported by the text of subsections (7) and (8), concluding that neither subsection required the making of an election in the terms identified by the Second Respondent.
His Honour found that had the legislature intended that a conviction of a person for an offence under the EPA Act would have rendered a defendant immune from subsequent class 4 civil enforcement proceedings, it could have easily so provided. But it did not do so and that result cannot be inferred or implied having regards to s127(7).
Craig J also rejected the submission that failing to require the Council to make an election between civil proceedings or criminal prosecution left the Second Respondent open to double punishment, concluding at paragraph  that ‘no element of punishment is involved in the making of a remedial order under s 124‘.
Finally, the judge rejected the argument based on ‘unfairness’ concluding that the Second Respondent had ample opportunity to rectify the breach following his guilty plea, or at least to obtain quotes for the remedial works which would have been considered at the sentencing hearing. The fact that he failed to do so then, meant he was unable to raise those costs now to demonstrate the unfairness of the orders sought by Council.
Lessons for Councils
Councils are often faced with the question as to what form of action should be taken following the discovery of unlawful development contrary to the EPA Act. This decision makes it clear that s127(7) allows a council to prosecute a defendant first and then if necessary commence class 4 proceedings for orders to remedy or restrain the contravention.
This post was prepared with the assistance of Adam Stipcevic.