The operator of an automobile repair facility as lost an appeal against an order issued to him by Ryde Council directing him to cease the use. The appeal was heard before Commissioner Dixon. Her judgement affirming the Council's order, Broholm v City of Ryde Council, (2014) NSWLEC 1201, which was handed down on 28 October 2014, can be reviewed at the following link:
http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=175070
The premises where the facility in question was operating was located in a single storey corrugated iron shed, across the street from a block of flats. The Council received a complaint from a member of the public that a car repair shop had been operating in the shed for a number of years. An officer of the Council attended the premises and, based upon his observation that a number of derelict vehicles and body parts were stored outside the shed, arrived at the conclusion that the shed was being used for the purpose of restoring and repairing vehicles. The officer further determined that the vehicle repair use had the potential to generate noise and traffic, and thus to impact adversely on the amenity of local residents. On the basis of these findings, and on the basis of provisions in the Council's Local Environmental Plan that declared that use of the land in the particular location (which was classified as being within a "B4 Mixed Use Zone") as a "vehicle body repair shop" was prohibited, the Council proceeded to issue the ""cease use" order.
The operator's appeal against the order was based on two primary grounds, both of which were rejected by Commissioner Dixon.
First, the operator argued that he had the benefit of "existing use rights" which authorised him to engage in the repair of vehicles notwithstanding that the use was prohibited under the Council's current local environmental plan. The operator's claim was that the premises had been operated during the period from 1953 - 1998 as a shop for the welding, cutting, grinding, painting and fabrication of metals for the construction of wrought iron gates, and that the prior use thus entitled him to carry out similar kinds of metalwork with respect to automobiles.
The Court followed a long line of precedent which holds that in order for "pre-existing use" rights to be valid, the claimed pre-existing use must have been lawful before it became prohibited. The Court found that the alleged pre-existing metalwork facility would have been classified as a "light industry" under the planning scheme ordinance that was in force at the time (1953) that the facility was claimed to have commenced operating. However, the previous planning scheme ordinance required that development consent be obtained for any "light industry" use. As there was no evidence that any such consent had ever been granted, the claim that the metalwork facility had been operating lawfully under the planning scheme ordinance could not be sustained. Consequently, the contentions advanced by the operator of the vehicle repair facility that he had the right to continue operating under the cloak of "existing use rights" did not succeed.
The operator's secondary argument, to the effect that he was a "car enthusiast who enjoyed "doing up" cars as a hobby and that he was operating the premises on a completely "non-commercial" basis was even weaker, and was rejected by the Court. Commissioner Dixon found that the work that the definition of (the prohibited use of) vehicle body repair did not require any commercial component. Thus, it was irrelevant whether the work that was being carried out in the shed, involving the cutting, welding and painting of car parts - was being done for financial gain or as a "hobby" as the operator claimed. In either case, the use in the particular land use zone was prohibited. (Further, it surely appears somewhat "incredible" that the alleged use was "non-commercial" in light of evidence that was brought forward in the proceeding that the shop had been operating for seven days a week.
An interesting aspect of this case is the fact that the Council was apparently aware of the use of the shed for the purposes of vehicle repair for many years before it proceeded to issue the closure order and that Council officers had apparently told the operator that they were "satisfied" that the use enjoyed the benefit of existing use rights. While of course a statement by a Council officer is not by itself sufficient to confer any rights under NSW planning law, such comments clearly have the potential to complicate an enforcement action. Similarly, longstanding tolerance by a council of an unauthorised use (as apparently can also cause problems for an eventual enforcement action to restrain that use. The obvious moral here is that Council officers must make careful assessments as to whether there is a factual or legal foundation for a claim of existing use rights before they carry out any discussions with a person who is engaged in a suspected prohibited use, and must exercise care and restrain when making any statements concerning the lawfulness of a use.
On the other side of the coin, the moral for persons who seek to continue land uses under the umbrella of existing use rights is that they must make a thorough investigation of the history surrounding the pre-existing use, and must make sure that there is sufficient proof to establish that the pre-existing use was being carried out lawfully before a change in zoning controls made the use unlawful (prohibited). As noted by Commissioner Dixon, the proponent of a claim of "existing use" rights has the burden of proof, and vindicating that burden of proof is almost always "easier said than done".
The Sydney Morning Herald has reported that the NSW State government is planning to introduce legislation to Parliament that would lead to the enactment of a significantly strengthened penalty regime for "planning law" offences. The article indicates that the new enforcement provisions will be drawn from the Planning Bill 2013 that failed to find sufficient political support to gain passage. A link to the report in the Herald (17 October 2014) is below:
http://www.smh.com.au/nsw/stronger-powers-to-prosecute-wayward-developers-for-land-and-environment-court-20141017-116azf.html
and a link to the "Exposure Draft" of the Planning Bill 2013 is also provided, as follows:
https://majorprojects.affinitylive.com/public/4753629ee2d34e89e72dab8963a117a3/Planning_Bill_2013.pdf
If the legislation does secure approval in the Parliament, the potential maximum criminal penalties for breaches of planning law would be greatly increased above the penalties that can be imposed under the present Environmental Planning and Assessment Act 1979. Under section 126 of the EP & A Act, the maximum possible penalty for an offence is $1.1 million, with possible further "daily penalties" in the amount of $110,000. The penalty framework under the EP & A Act does not differentiate between the penalties that may be imposed upon a corporation and those that may be imposed upon an individual - the same scheme applies to both (except in relation to "penalty notice" offences, in which case the penalties that can be assessed against corporate entities are specified as being higher than those which can be given to individuals).
The criminal penalty structure that is outlined in the Planning Bill 2013 follows the model that has been incorporated into the Protection of the Environment Operations Act 1997 in that various "tiers" of offences can attract different levels of penalties.
The most serious offence under the Planning Bill 2013 provisions is a "Tier 1" offence. The proposed legislation specifies that a Tier 1 prosecution can be brought only in circumstances where the prosecutor can establish that the offence was committed intentionally and either that the offence caused or was likely to cause significant harm to the environment or the offence caused the death of or serious injury or illness to a person. (It is our view that Tier 1 prosecutions are likely to be relatively unusual - most previous prosecutions in the Land and Environment Court that have been brought under the EP & A Act have not involved "significant" environmental harm and it is unlikely, save in the case of a breach of fire safety requirements or a fire safety order that a breach of planning law controls would result in death or serious injury. In circumstances where a Tier 1 prosecution is brought, the proposed legislation provides for maximum penalties of $5 million in the case of a corporation with additional penalties of $50,000 for each day that an offence continues, and a maximum penalty of $1 million for an individual, with additional daily penalties of $10,000 for continuing offences.
The Exposure Draft of the Planning Bill 2013 provides that the next two "tiers" of offences, Tier 2 and Tier 3, would be prescribed specific offences in any new planning legislation that is enacted. As is the cases with offences under the current EP & A Act, Tier 2 and Tier 3 offences would be "strict liability" offences. In order for these penalties to be brought into play, there would be no requirement for the prosecutor to make a showing of "recklessness" or "negligence". Tier 2 offences would attract maximum potential penalties of $2 million (slightly less than twice the possible maximum under the EP & A Act) in the case of a corporation with further daily penalties of $20,000 for an ongoing offence, and $500,000 in the case of an individual with continuing penalties of $5,000. The next tier down, Tier 3, would have maximum penalties of $1 million for a corporation with ongoing penalties of $10,000 for continuing offences, and $250,000 for individuals with continuing penalties of $2,500.
It should be noted by readers that until further planning legislation is actually enacted, it will be unknown what types of offences will attract Tier 2 penalties and which will be subject to the less stringent regime under Tier 3.
Like the present EP & A Act, proceedings for offences will be able to be brought either in the Land and Environment Court or in Local Court. Also, the current statutory maximum penalty of $110,000 will continue to apply in Local Court prosecutions.
Also, very curiously and in our opinion, inexplicably, the draft legislation would continue what we consider to be a strange and indefensible provision of the EP & A Act (section 127) which bars criminal and civil proceedings from being brought in respect of the same matter (even in circumstances where the civil proceedings have been concluded). We have always found it unaccountable that proceedings seeking a penalty cannot be brought where an action seeking an injunction with respect to the same breach of planning legislation is either "still on foot" or has been concluded by the making of an order by the Land and Environment Court. It is our view that a better enforcement regime would enable a regulatory authority both to seek restraint or correction of a breach (through an injunction) and a penalty (to punish the offender and to serve as a deterrent). In our experience, every environmental law in the United States allows both criminal and civil proceedings to be brought in respect of the same "violation of law", and this is a workable and effective framework. The underlying policy rationale that prevents both civil and criminal enforcement with respect to a breach of planning legislation in NSW remains a mystery to us.
There are a few further features of the new enforcement provisions that are to be introduced to the Parliament that are noteworthy:
1. A section will be added dealing with "ancillary offences" which specifies that a person who aids, abets, counsels, procures another person to commit, or conspires to commit, an offence against planning legislation is guilty of an offence (we note that building professionals such as architects, builders and accredited certifiers could face prosecution under these provisions!);
2. A new "Tier 3" offence is created for providing information in connection with a planning matter that the person knows or reasonably ought to know is false and misleading in a material respect. This provision will apply to persons who are applicants for a planning approval and who provide the information themselves in connection with the application and also, very significantly, to persons who are engaged by applicants to provide information in support of an application. Thus, the whole range of experts who provide reports in relation to a planning application - town planners, urban designers, heritage specialists, architects, arborists, structural and geotechnical engineers, could all be potentially liable to criminal prosecution and penalties. While it has always, of course, been essential for experts to be truthful in the material that they give in relation to a development application, the stakes and potential consequences have now been significantly raised!
3. The new legislation would incorporate the provisions of Part 8.3 of the Protection of the Environment Operations Act into NSW planning law. Consequently, in Land and Environment Court prosecutions, the Court will have the power to order convicted offenders to publish notice that they have committed the offence; to correct any environmental harm occasioned by the offence; to pay the investigative costs incurred by the regulatory authority; and to disgorge, as an additional penalty, the amount of any "economic benefit" that the offender has realised as a result of the commission of the offence.
We conclude this post with the observation that the ultimate effectiveness of this new, much more powerful enforcement regime, will depend on its implementation by the courts. It is our opinion that penalties for environmental offences have historically been very low by international standards (for example, the penalties for pollution offences are far lower in NSW than in American jurisdictions). We also note that, in our view, the Land and Environment Court has historically been reluctant to impose higher penalties on offenders in response to increases in the statutory maximum penalties provided for in environmental laws. It therefore remains to be seen whether the Court's future judgements will reflect the higher penalty scales in the legislation.
There can be little doubt that contraventions of food hygiene standards are among the most serious of all "environmental" offences in terms of their potential impact on human health. While leaks and spills from industrial facilities may despoil waterways, for example, it is the truly unusual case where such an incident causes a detrimental effect on the health of the community. In fact, it is rare for a pollution prosecution in the Land and Environment Court to involve "actual environmental harm" (most likely because comprehensive environmental surveys are not typically carried out following an incident, and thus whatever real harm does occur is not well documented and thus evidence of the "extent of harm" is not presented in Court).
By contrast, the failure of a food business to comply with the Food Safety Standards can directly cause illness to consumers - ranging from gastrointestinal illness to severe food poisoning that leads to death. For that reason, the Local Courts of New South Wales have quite properly become attuned to the seriousness of offences against the Food Act. It is not at all uncommon for penalties of several thousand dollars to be imposed for a breach.
However, as is the case with other types of environmental offences, not all breaches of the Food Act "are created equal". A prosecutor (which in the case of Food Act offences is most usually a local council) that does not carefully consider the circumstances surrounding the alleged offence, and does not take into account legitimately well grounded extenuating circumstances, may unhappily learn that the case has not resulted in the desired outcome of a penalty (to punish the offender and to send a message of general deterrence to the regulated community) or an order for recovery of the professional costs that it has incurred in connection with the case.
The risks associated with the failure to carefully consider all the relevant facts, and to exercise the discretion whether to prosecute in a reasoned and cautious way were demonstrated in a case that we handled on 14 October 2014 in the Downing Centre Local Court.
Our client is the proprietor of a small takeaway food shop in Redfern, NSW. In early August, inspectors visited the premises. They found that a "pre-made" sandwich that was kept in a display case, and a container of cooked chicken pieces that was found on a bench, were not being kept "under temperature control", in other words, the temperature of these foods was higher than 5 degrees Celsius. On the face of the situation, the discovery of these foods would suggest that clear breaches of the Food Safety Standards had been committed. Indeed, based on their findings, the inspectors proceeded to issue penalty notices to the proprietor.
However, the underlying circumstances demonstrated that the food items that the council inspectors had found on the premises were not going to be sold, and therefore presented no risk of harm to human health. The inspectors had attended the premises at a time when it was preparing to close for the day. The refrigerated display case where the sandwich was kept had been turned off in anticipation of the closing of the store for the day, explaining why the sandwich was not under temperature control. The proprietors were preparing to dispose of the sandwich immediately upon closing of the shop. Furthermore, the chicken pieces had been cooked by a member of the proprietors' family for her own personal consumption, and were also not going to be offered for sale to the public.
Even though these matters were put to the council in writing before the case came before the Local Court, the council nonetheless decided to "bat on" with the prosecution.
However, when the extenuating circumstances were explained by us to the presiding magistrate, she quickly came to the conclusion that the alleged offences were "trivial" when viewed in context. The magistrate also gave weight to the fact that the food business did not have a record of prior convictions, and that the owners were suffering significant financial hardship due to a sharp decline in trading conditions.
Consequently, the magistrate saw fit to dismiss the prosecution in its entirety under section 10 of the Crimes (Sentencing Procedure) Act. Thus, no fine was imposed on the food business, no order for costs was made, and the name of the food business was not listed on the "Name and Shame" register of convicted offenders that is published on the Website of the NSW Food Authority. In short, the prosecution was a complete failure for the council.
The result that we obtained for our client should provide a reminder to councils that are administering the Food Act, and more generally to prosecutors pursuing environmental offences, of the need to be very mindful of mitigating and extenuating circumstances when running enforcement cases. The failure to carry out a studied, nuanced appraisal of the specific factual circumstances that prevail in a case (or to re-consider the prosecutor's position after such circumstances have been brought to its attention) may well cause the case to run aground.
A charge brought by Tweed Shire Council against the owner of a caravan park for failure to comply with an order issued to her under the Local Government Act has been dismissed at an early stage of the proceedings by the Land and Environment Court - see Tweed Shire Council v Furlonger, (2014) NSWLEC 156. The outcome in the case provides an object lesson of the need for councils to exercise care and caution before initiating criminal enforcement proceedings in the Court.
The order that was issued to the defendant alleged that she had breached the Local Government (Manufactured Home Estates, Camping Grounds and Moveable Dwellings) Regulation 2005. It required her to take certain remedial steps, including removal of a wall that was attached to the side of a carport, to remove a wall and window that were attached to the front of a carport, and to remove a portion of a roof over an entrance to an annexe. There is no indication in the Court's judgement as to whether the structures that were the subject of the order were causing any adverse amenity impacts, either on occupants of the caravan park or on neighbouring properties.
The problem for the council in the case was that the defendant produced evidence that she was unaware that the order had been issued to her. The council attempted to serve the order on the defendant by placing it in a mail box at the caravan park. While this is not a permissible method of service under the Local Government Act, Justice Biscoe concluded that the defect in service would not have been fatal if the order had actually come to the attention of the defendant. Unfortunately for the council it did not. Justice Biscoe found that the likely reason that the defendant did not learn of the order was that it had been removed from the mail box by an unknown third party.
Under section 628(5) of the Act, a prosecution for breach of an order cannot be sustained unless it is demonstrated that the defendant has actual notice of the order - a defendant's lack of knowledge of an order is a complete defence to the charge. Justice Biscoe characterised the policy considerations underlying this principle in the following terms: "...no one should be found guilty of the crime of disobeying a statutory order of which they are unaware".
There are certainly some peculiar aspects of this case. First of all, given that the maximum penalty that the offence of failing to comply with the order could attract was only 50 penalty units, or $5,500, it seems odd that the council would have taken these proceedings in the Land and Environment Court, rather than in the Local Court, inasmuch as the Local Court is a jurisdiction that is far better suited to a minor penalty action of this nature. Furthermore, the seemingly minor nature of the remedial actions required by the council order also suggest that the Local Court would have been a more appropriate place for a penalty action to be brought. All in all, a prosecution for this type of offence in the Land and Environment Court appears, on its face, to be somewhat "heavy-handed".
Secondly, it appears somewhat strange that the council would have commenced proceedings in the Land and Environment Court (with all the attendant expense associated with such a case) unless it had first satisfied itself that the defendant was in fact aware of the order, and that there was thus no likelihood that the defence available under section 628(5) would be brought into play.
It is our opinion that a cautious council would have ensured that the order was delivered directly to the defendant, and that had this occurred the question of service would not have been left open to chance. It also appears that it would have been logical and appropriate for the council to communicate with the defendant concerning her alleged non-compliance with the order. By doing so it would have become apparent that the defendant had not become aware of the order, and the mistake of improvidently starting a prosecution in the Court could have been avoided.
Unfortunately, in this case, the council did not take those simple steps that it could have followed to ensure that the prosecution was well-founded and insulated from the challenge that was brought by the defendant. That failure was fatal to the council's case.
Justice Biscoe's judgement can be found at the following link:
http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=174366.
