Blue Mountians City Council v Koprivnjak

SOLICITORS McPhee Kelshaw

LEGAL REPRESENTATIVES: DEFENDANT Mr I. Lloyd Q.C. Mr M. Baird (Barrister)

SOLICITORS Carters Law Firm

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 50071 of 2002

18 July 2003 Blue Mountains City Council Prosecutor v John Ivica Koprivnjak Defendant Judgment

1 By notice of motion filed 6 December 2002 the defendant seeks an order that these proceedings instituted by summons filed 14 June 2002 ("the summons") be permanently stayed. The summons charges the defendant with carrying out development on land being lot 8 in deposited plan 828146 and known as 8 Adeline Street, Faulconbridge ("the site") between 1 August 2001 and 24 September 2001 without development consent as required by cl 9 of the Blue Mountains Local Environmental Plan 1991 ("the LEP"). It is alleged by Blue Mountains City Council ("the council") that the defendant's actions were therefore contrary to s 76A(1) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") thereby constituting an offence under s 125 of the EP&A Act. 2 Prior to the institution of these proceedings the defendant had appeared in Katoomba Local Court ("the Local Court proceedings") on 12 February 2002 and 15 April 2002 to answer a charge brought against him pursuant to s 144 of the Protection of Environment Operations Act 1997 ("the POEO Act"). 3 The alleged offence in these proceedings arises out of the same facts relied upon by the council in the Local Court proceedings. The defendant therefore claims that these proceedings should have been initiated when information was laid in relation to the Local Court proceedings. Accordingly the defendant submits that the present proceedings are oppressive and an abuse of process.

The Local Court proceedings 4 By penalty notice posted to the defendant on 31 August 2001 the council alleged that at 9am on Thursday 30 August 2001 the defendant had committed an offence in that he had deposited bulk earth on the site. The penalty notice alleges that the defendant permitted the site to be used as a waste facility. 5 The defendant elected to have the alleged offence determined by a court, instead of paying the prescribed fine of $750. Accordingly on 26 November 2001 information was issued in the Local Court at Katoomba alleging a breach by the defendant of s 144 of the POEO Act at the site on the 30 August 2001 ("the first charge"). Section 144 of the POEO Act provides:- (1) A person who is the owner or occupier of any land that cannot lawfully be used as a waste facility and who permits the land to be used as a waste facility is guilty of an offence. Maximum penalty: • in the case of a corporation - $250,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or • in the case of an individual - $120,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues. (2) In any proceedings for an offence under this section the defendant bears the onus of proving that the land concerned can lawfully be used as a waste facility.

6 The first charge was heard in the Local Court at Katoomba during which the council tendered evidence from Robert Hofmann, senior environmental health and building surveyor, Brian Anthony Crane, principal environmental health and building surveyor of the council and Denis Michael McKeon, the council's environmental health officer. The evidence established that on 24 August 2001 the council's witnesses had observed dirt on a road leading to the site which suggested that fill was being placed thereon. An inspection revealed that a substantial quantity of sandstone approximately 40 metres by 20 metres in area and a depth of 1 metre to 1.5 metres had been placed on the site. No permission had been obtained from the council for the use of the site as a waste facility. 7 During the hearing of the first charge the following question was asked by the solicitor for the council and the answer provided by Mr Crane:- Q. Why did you issue the penalty infringement notice? A. Because I believe that that was the, in relation to most directly the offence that I'd believed had been committed that is to, to use the land unlawfully as a waste disposal facility your Worship in that it was a surplus material from off site and in my considerations I believed it would've been likely to cause environmental harm. 8 On 21 May 2002 Magistrate Clarke delivered his judgment in respect of the first charge in which he found that the defendant did not permit his land to be used as a waste facility and that the proceedings should never have been brought against him.

The present proceedings 9 These proceedings ("the second charge") were commenced against the defendant approximately three weeks after the dismissal of the first charge. The summons states that the defendant carried out development on the site which was contrary to s 76A(1) of the EP&A Act. Section 76A(1) of the EP&A Act provides:- s 76A(1) If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless: (a) such a consent has been obtained and is in force, and (b) the development is carried out in accordance with the consent and the instrument. . 10 The second charge alleges that such conduct constituted an offence under s 125 of such Act. Section 125 of the EP&A Act provides:-

(1) Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Director-General, a council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act. Defendant's submissions 11 The defendant acknowledges that he would not challenge the present proceedings if the summons had been filed and served when information was laid in relation to the first charge. However the defendant submits that these proceedings should be stayed because they constitute an abuse of process, for two reasons. Firstly, he claims that the charge relating to the alleged offence against s 144 of the POEO Act and the offence against s 125 of the EP&A Act should have been joined in the same proceedings. The two offences are based upon the same facts. Accordingly the council had all of the facts upon which it relies for these proceedings in its possession when it laid the information which was heard and dismissed by Magistrate Clarke. 12 The defendant submits that as a general rule, all charges rising out of the same facts should be combined into the one indictment to prevent a series of trials arising on substantially the same facts. The rationale of such a rule is to prevent an abuse of process and thereby protect the administration of justice. The defendant acknowledges that the plea of autrefois acquit is not available but submits that legal authorities establish that in the present circumstances an accused may plead that it would be an abuse of process for the Court to proceed to hear the second charge. In support the defendant relies upon the principles referred to in Pearce v The Queen (1998) 194 CLR 610; Regina v Beedie [1997] 3 WLR 758; Connelly v Director of Public Prosecutions [1964] AC 1254; and Carmody v Brancourts Nominees Pty Limited and Another (2002) 124 LGERA 136 per Talbot J. The defendant submits that a stay of the present proceedings is warranted if the Court is satisfied that "oppression" and "prejudice" to the defendant is demonstrated: see Pearce at p 649. 13 As a second ground of challenge, the defendant submits that the second charge constitutes an abuse of process because it is evident that the proceedings are foredoomed to fail. The defendant alleges that he is incorrectly charged with an offence against s 76A of the EP&A Act instead of s 76B of such Act. The charge against s 76A of the EP&A Act implies that consent can be granted for the development which is the subject of the charge. The defendant alleges the development relied upon by the council could never have been the subject of any consent because development of the kind alleged by the council was prohibited by the LEP. Accordingly s 76B of the EP&A Act was the appropriate section for the alleged offence. 14 The defendant held a development consent which was issued on 2 April 1998 and related to the building of a "timber clad dwelling with colourbond roof" pursuant to building approval 1389/97 ("the consent"). By letter dated 2 September 2002 the defendant requested the council to specify the "development" which was allegedly carried out by the defendant without development consent. The council advised the defendant by letter dated 9 October 2002 that the relevant development "comprised the depositing of land fill" onto the site "and the spreading of that fill over the land". 15 The alleged development as particularised is not included within the table annexed to cl 9 of the LEP and is accordingly prohibited development in the Residential Bushland Conservation Zone being the applicable zone to the site. Such development is not prohibited if it is classified as "ancillary or incidental development" pursuant to cl 15 of the LEP. Such clause provides:- 15. Ancillary or Incidental Development Development which is ancillary or incidental to a purpose for which land may be used with consent, is prohibited unless there is a current consent to use the land for that purpose, or the land is lawfully used for that purpose.

16 The defendant therefore clams that the second charge could not succeed because of the incorrect nomination of the provision in the EP&A Act. The defendant relies upon the principle in Walton v Gardiner (1993) 177 CLR 378 at p 393 per Mason CJ, Deane and Dawson JJ, namely that the Court will stay proceedings where they are foredoomed to fail. Council's submissions 17 The council acknowledges that there may be cases where a repeated prosecution of an offender could amount to an abuse of process, in accordance with principles discussed in Pearce at p 620 and in Rogers v The Queen (1994) 181 CLR 251. The council submits that such conclusion could not be drawn in respect of the second charge. These proceedings do not amount to exceptional circumstances, which are required to warrant the Court's intervention by the award of a stay. The council submits that the POEO Act and the EP&A Act are complementary but create separate and discrete statutory regimes. The POEO Act relates to control of pollution and the EP&A Act relates to planning and development. The council further submits that the development referred to in the second charge is a separate and distinct matter from conducting a waste facility which was the subject of the first charge. It is not necessary to conduct the proceedings relating to the two offences concurrently merely because the evidence to prove the two offences is common. Additionally, the council submits that there was no improper, unfair or unjust conduct on its behalf. 18 The council rejects that the submission that the second charge is foredoomed to fail. The council referred to the consent and to two plans which related to the development, one of which indicated the proposed features of the development that included a "proposed future tennis court" and "proposed future driveway". The council submits that the work of placing fill on the land is to be characterised as "development ordinarily incidental and ancillary to a dwelling house", being either the existing dwelling house or the proposed future dwelling, in accordance with definitions found in Sch 4 of the LEP, and that the charge does not relate to a waste facility.

Findings 19 The Court, as a superior court of record, has inherent jurisdiction to stay proceedings that are an abuse of process: see Rogers v The Queen per Mason CJ at p 255. The inherent jurisdiction extends to both civil and criminal proceedings: see Williams and Others v Spautz (1992) 174 CLR 509 per Mason CJ, Dawson, Toohey and McHugh JJ at p 518. In the absence of any applicable provision under the Land and Environment Court Rules 1996 relating to summary dismissal of a summons, the Court will apply established legal principles.

20 Abuse of process is a flexible notion as observed by Mason CJ in Rogers v The Queen at p 255:- The concept of abuse of process is not confined to cases in which the purpose of the moving party is to achieve some foreign or ulterior object, in that it is not that party's genuine purpose to obtain the relief sought in the second proceedings. The circumstances in which an abuse of process may arise are extremely varied and it would be unwise to limit those circumstances to fixed categories ( Hunter v Chief Constable, [1982] A.C., at p. 536 per Lord Diplock). Likewise, it would be a mistake to treat the discussion in judgments of particular circumstances as necessarily confining the concept of abuse of process. 21 Authorities of the High Court of Australia have formulated guidelines to be applied to determine whether criminal proceedings should be stayed due to an abuse of process. In Williams v Spautz at p 520 Mason CJ, Dawson, Toohey and McHugh JJ observed that there are two important policy considerations which the Court must contemplate. The Court must first ensure that its processes are being used fairly by "State and citizen alike" to protect its "ability to function as a court of law". Secondly unless the Court protects such function "its failure will lead to an erosion of public confidence by reason of concern that the court's processes may lend themselves to oppression and injustice." 22 In Jago v The District Court of New South Wales and Others (1989) 168 CLR 23 Mason CJ, Deane and Dawson JJ observed at p 396 that it is a "weighing process involving a subjective balancing of a variety of factors and considerations." Their Honours stated some of those factors to be the "requirements of the fairness to the accused, the legitimate public interest in the disposition of charges of serious offences" and the necessity in preserving "public confidence in the administration of justice."

Abuse of process resulting from successive prosecutions 23 In Connelly v Director of Public Prosecutions Devlin L.J. considered the propriety of a subsequent prosecution supported by evidence upon which the accused had already been tried for another offence. His Lordship said at p 1347:- My Lords, in my opinion, the judges of the High Court have in their inherent jurisdiction, both in civil and in criminal matters, power (subject of course to any statutory rules) to make and enforce rules of practice in order to ensure that the court's process is used fairly and conveniently by both sides. I consider it to be within this power for the court to declare that the prosecution must as a general rule join in the same indictment charges that "are founded on the same facts, or form or are a part of a series of offences of the same or a similar character (I quote from the Indictments Act, 1915, Schedule I, rule 3, which I shall later examine); and power to enforce such a direction (as indeed is already done in the civil process) by staying a second indictment if it satisfied that its subject-matter ought to have been included in the first.

It should be noted that Sch 1 r 3 of the Indictments Act 1915 (UK) referred to by Devlin L.J. makes specific provision for charges for any offences to be joined in the same indictment if those charges are founded on the same facts. Section 29 of the Criminal Procedure Act 1986 ("Criminal Procedure Act") of New South Wales makes a similar provision as follows:- s 29 When more than one offence may be heard at the same time (1) A court may hear and determine together proceedings related to 2 or more offences alleged to have been committed by the same accused person in any of the following circumstances: (a) the accused person and the prosecutor consent, (b) the offences arise out of the same set of circumstances, (c) the offences form or are part of a series of offences of the same or a similar character. Section 29 of the Criminal Procedure Act generally applies to all offences arising under any Act or under common law: see s 28 of the Criminal Procedure Act. It is apparent however that s 29 of the Criminal Procedure Act does not make it mandatory for offences arising out of the same facts be heard together. 24 Although the observations of Devlin L.J. extracted above are compelling, he recognised the need to consider the circumstances in each case. In Connelly he said at p 1359 to 1360:- As a general rule a judge should stay an indictment (that is, order that it remain on the file not to be proceeded with) when he is satisfied that the charges therein are founded on the same facts as the charges in a previous indictment on which the accused has been tried, or form or are a part of a series of offences of the same or a similar character as the offences charged in the previous indictment. He will do this because as a general rule it is oppressive to an accused for the prosecution not to use rule 3 where it can properly be used. But a second trial on the same or similar facts is not always and necessarily oppressive, and there may in a particular case be special circumstances which make it just and convenient in that case. The judge must then, in all the circumstances of the particular case, exercise his discretion as to whether or not he applies the general rule. 25 The High Court of Australia has considered the "general rule". McHugh, Hayne and Callinan JJ in Pearce v The Queen stated at p 620:- That there may be cases in which the repeated prosecution of an offender in circumstances where the offender has no plea in bar available would be an abuse of process is illustrated by Rogers v The Queen (See also R v Brightwell [1995] 2 NZLR 435). The decision about what charges should be laid and prosecuted is for the prosecution ( Maxwell v The Queen (1996) 184 CLR 501 at 512, per Dawson and McHugh JJ; at 534, per Gaudron and Gummow JJ). Ordinarily, prosecuting authorities will seek to ensure that all offences that are to be charged as arising out of one event or series of events are preferred and dealt with at the one time.

Kirby J said at p 639 that prosecutors:- …should ensure that all charges arising out of the same facts are combined in one indictment to prevent there being a series of indictments and trials on substantially the same facts ( Connelly v Director of Public Prosecutions [1964] AC 1254 at 1354; Friedland, Double Jeopardy (1969), p 90; cf Environment Protection Authority v Australian Iron and Steel Pty Ltd (1992) 28 NSWLR 502 at 508-509.

Application of principles: successive prosecutions 26 Prima facie a hearing of the second charge is oppressive and applying the test of Devlin L.J. in Connelly v Director of Public Prosecutions the Court must ask whether there are any special circumstances which justify the continuation of these proceedings. His Lordship provided an example of special circumstances in Connelly v Director of Public Prosecutions at p 1360. Devlin L.J. said that if the proceedings were such that the offence charged in the later proceedings was combined in the initial indictment and the judge would have ordered separate trials, the judge will allow the second proceedings to continue. 27 Circumstances of that kind have not arisen in these proceedings. Since the facts relied upon by the council are common to each charge, they could have been heard together. No necessity existed to warrant separate trials. The public interest in a prosecution for an offence against s 125 of the EP&A Act may be a good reason to permit these proceedings to continue but such a consideration does not constitute "special circumstances": see Rose LJ, Dyson and Timothy Walker JJ in Regina v Beedie at p 766.

Delay 28 It is apparent that council was aware from the outset that these proceedings were contemplated. On 31 August 2001 the council hand delivered the defendant a document entitled "Direction to Take Clean-Up Action, Section 91 Protection of the Environment Operations Act 1997". By letter dated 31 August 2001 the council made it apparent to the defendant that action in this Court was a possibility as follows:- In consideration of the above the following action is necessary;

1. The attached clean up notice is served on you. Failure to comply fully with the requirements of this notice will be insisted on. Council will seriously consider taking this action to the Land and Environment Court to secure appropriate action and or penalties should you fail to apply appropriately attend to compliance with this notice

Additionally Mr Brian Anthony Crane, employee of the council, deposed in an affidavit sworn 17 May 2002:- On 31 August 2001, [namely, prior to the institution of any proceedings] Mr Koprivnjak's architect, Mr John Van der Have telephoned me. During the course of the conversation, an exchange to the following effect took place: Mr Van der Have: "Mr Koprivnjak believed that he had consent for the work and he should not be fined." Myself: "I have checked this out. While the approval plans show a 'future tennis court' the development consent was only issued for a dwelling. The best advice for Mr Koprivnjak is to adhere strictly to the Clean Up Notice to avoid Land and Environment Court action."

29 In criminal proceedings an abuse of process cannot arise "merely from delay on part of the prosecution, either by inadvertence or negligence": see Brennan J in Jago p 54. Deane J in Jago said at p 54:- Circumstances can arise in which such delay produces a situation in which any continuation of the proceedings would, of itself, be so unfairly and unjustifiably oppressive that it would constitute an abuse of the court's process. Multiple prosecutions arising out of the one set of events but separated by many years or a renewed charge brought years after the dismissal of earlier proceedings for want of prosecution could, in a case where the relevant material had been available to the prosecution from the outset and depending on the particular facts, provide examples. Where such circumstances exist, the power of a court to prevent abuse of its process extends to the making of an order that proceedings be permanently stayed.

Deane J at p 60 described some of the considerations to be assessed in order to determine whether a delay constitutes an abuse of process. They include length of delay, the prosecutor's explanation of the delay, the accused's responsibility for and past attitude to the delay, the prejudice to the accused and the public interest in the disposition of the charges for serious offences. His Honour said that these five considerations are to be regarded as "reference points" and not a "code". 30 The information relating to the Local Court proceedings was laid on 26 November 2001 and the summons was filed on 14 June 2002 following the delivery of the Magistrate's decision on 21 May 2002. Accordingly the delay in the institution of these proceedings was approximately 7 months after the commencement of the proceedings in the Local Court and almost nine months after the alleged offence was committed. 31 The Court does not find the delay to be inordinate. However the circumstances giving rise to such delay are critical. The Court can infer that these proceedings were instituted solely because of the failure of the Local Court proceedings. There is no suggestion that the delay in filing the summons in these proceedings was due to inadvertence or negligence on the council's behalf. The second charge being based on identical facts should have been laid simultaneously with the first charge since the council was apprised of all the relevant facts. To permit these proceedings to continue will result in the defendant being required to defend a charge which could have been determined with the first charge. Accordingly the conduct of the council is oppressive. For these reasons the Court finds that these proceedings are an abuse of process and will be stayed. Defendant's alternative submission

32 It is unnecessary for the Court to consider the defendant's second submission that these proceedings are an abuse of process because they are foredoomed to fail. The Court, however will make the following observations. It is an established principle that if proceedings are deemed to be foredoomed to fail a stay may be granted. Mason CJ, Deane and Dawson JJ said in Walton v Gardiner at p 392-393:- The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice and unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail (See, e.g., Metropolitan Bank v Pooley (1885), 10 App. Cas. 210, at pp 220-221; General Steel Industries Inc. v. Commissioner for Railways (N.S.W) (1964), 112 C.L.R, at pp. 128-130.) 33 The defendant's alternative submission is solely predicated upon the ground that the wrong section in the EP&A Act has been nominated in the summons. Even if this ground proved to be correct the council could apply to amend the summons. The Supreme Court Rules 1970, as adopted by the Land and Environment Court Rules 1996, allows for amendments to documents: see the Land and Environment Court Rules 1996 Pt 6 r 2, Supreme Court Rules 1970 Pt 75 r 6 and Pt 20. Accordingly the council's cause of action cannot be characterised as foredoomed to fail.

1. Proceedings 50071 of 2002 be permanently stayed; 2. The council pay the defendant's costs in such sum as agreed or otherwise assessed in accordance with the regulation made pursuant to the Land and Environment Court Act 1979;

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.