Each year in the Land and Environment Court there are about 50 to 100 criminal prosecutions in the “Class 5” jurisdiction. By contrast there are between 100 and 150 cases filed in the Court’s civil “Class 4” jurisdiction involving civil enforcement and judicial review proceedings.

The Class 4 jurisdiction has a number of benefits through the variety of orders that might be sought to remedy or restrain breaches of the relevant legislation. At the same time, some of these breaches are serious or result from a contumacious disregard for the system of planning and environmental laws in place, and consent authorities often want these offences criminally prosecuted.

This raises an important question for relevant authorities responsible for the enforcement of the State’s planning and environmental laws:  Once you have criminally prosecuted someone successfully, can you bring proceedings in the Land and Environment Court’s Class 4 jurisdiction to remedy a breach of the relevant legislation? Conversely, can you bring criminal proceedings if you have successfully obtained orders in the Court’s Class 4 jurisdiction? Is there a criminal and civil smorgasbord to choose from?

Sutherland Shire Council v Sud

The Land and Environment Court recently handed down judgment in Sutherland Shire Council v Sud [2015] NSWLEC 44 considering, amongst other things, whether a criminal conviction prevented Council from seeking orders in the Court’s civil jurisdiction.

In his decision, his Honour Justice Craig made demolition, restraining and remedial orders to address breaches of development consent and unauthorised development. Importantly, his Honour confirmed that a conviction for a criminal offence did not preclude Council from commencing civil enforcement proceedings in relation to the same matter.

The site, development consent and prior criminal proceedings

Ms Sud, the first respondent, owned land in Loftus. Council had granted development consent for the demolition of the existing dwelling on the land, and the construction of a new dwelling, pool and detached garage. The plans to the development consent showed a double storey dwelling and a flat concrete roof, and identified two trees to be retained. The development was project managed by Mr Sud, the second respondent.

Subsequently, a Council officer visited the land and observed that the roof slab had been extended over the whole balcony, and was supported by five columns. Neither the columns nor the extension were shown on the development consent plans.

Council refused two applications to modify the development consent. The Court partially allowed an appeal from Council’s refusal of the second modification application, but expressly excluded from the Court’s consent extension of the roof slab over the first floor balcony.

Council also refused to grant a building certificate in respect of the extension of the roof slab over the balcony. On planning and structural engineering grounds, the Court dismissed Mr Sud’s appeal.

In the meantime, Council had brought proceedings against Mr Sud for the offence of failing to carry out development in accordance with the development consent. Mr Sud pled guilty, was convicted and was fined $30,000 plus costs.

Parties’ contentions

In the civil class 4 proceedings, Council contended that Mr Sud had carried out building and other work in breach of the development consent for the construction of the dwelling, seeking declarations as well as orders for:

partial demolition of the concrete roof slab extending over the first floor balcony; restraint of use of the roof as an outdoor terrace; and removal of fill near two trees and a fence.

Mr Sud, the active respondent in these proceedings, opposed the orders sought by Council. In addition, Mr Sud sought a permanent stay of Council’s claim seeking demolition of the first floor slab, submitting that:

seeking such demolition was an abuse of process; and such an order should not, in the Court’s discretion, be made.

Was seeking demolition of the roof slab extension an abuse of process?

While Mr Sud accepted that the roof slab extension did not conform with the development consent, he submitted that proceedings seeking an order for demolition were an abuse of process and should therefore be permanently stayed. Mr Sud submitted that Council could not prosecute him for an offence under section 125(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and also bring civil proceedings under section 123 of the EP&A Act to obtain a remedial order for the same breach. Mr Sud submitted that he would be subject to a ‘double punishment’. In essence, Mr Sud submitted that Council had to choose between criminal prosecution or civil enforcement.

The Court rejected Mr Sud’s submissions. In doing so, Craig J considered the authorities and the relevant statutory framework including sections 124, 125 and, in particular, 127(7), and held (at [56]):

Save for the position that pertains when civil enforcement proceedings precede the commencement of a prosecution arising from the same subject matter, s 127(7) does not proscribe the institution of civil proceedings for an order under s 124, once the prosecution proceedings have concluded either by conviction or dismissal.

This construction of section 127(7) was supported by:

the different purposes served in prosecuting an offence (punishment and deterrence) and in bringing civil enforcement proceedings (rectification of adverse environmental impacts and upholding the ‘integrated and coordinated nature of planning law’); and the section’s reflection of the general principle that it is undesirable to require a person to defend civil proceedings before criminal proceedings, founded upon the same subject matter, are concluded – no problems of self-incrimination arise if prosecution proceedings are concluded before civil enforcement proceedings are commenced.

In relation to Mr Sud’s double punishment submission, Craig J said (at [84]):

No element of punishment is involved in the making of a remedial order under s 124.  Such an order, if made, is framed to remedy an adverse environmental impact consequent upon the offender’s action.  The Second Respondent’s contention that the making of such an order exposes him to ‘double punishment’ cannot be sustained.

Justice Craig was unable to identify any unfairness to Mr Sud that would justify staying Council’s proceedings for a demolition order, noting that, despite ample opportunity, Mr Sud had chosen not to take action to remove  the slab extension before his sentencing.

Should the Court exercise its discretion to order demolition of the roof slab extension?

Justice Craig was not persuaded that an order should not be made for demolition of the roof slab extension. In coming to this conclusion, his Honour considered:

Mr Sud’s concession that he would not contend that he was unable to pay demolition costs; town planning evidence regarding the considerable bulk added to the building by the extended roof, and amenity impacts on neighbouring properties caused by increased use of the covered balcony; and the lack of evidence that the roof slab was safe.

What this means

The decision affirms authorities decision to prosecute an offence under the EP&A Act, for issues like development without consent, as well as seeking orders to remedy or restrain a breach of that Act. A person can be criminally prosecuted and subject to the fines and other penalties available in the Court’s Class 5 jurisdiction, also being subject to the Court’s more flexible range of orders within the Court’s Class 4 jurisdiction.

For those involved with development, it means the potential exists to be criminally prosecuted while also receiving where their actions contravene the EP&A Act.

Importantly, the order in which these proceedings are run matters. Criminal proceedings must be completed prior to the commencement of civil proceedings to avoid self-incrimination by the defendant in the criminal proceedings during the course of the civil proceedings.  But, so long as this order is maintained, the above framework provides dual punishment.