1 On 5 June 2003 the Baw Baw Shire Council (the council) issued a planning infringement notice on C and A Sagolj Nominees Pty Ltd (the landowner) alleging that the landowner had committed an offence against section 126 of the Planning and Environment Act 1987. The offence was specified as removal of native vegetation without a planning permit as required by clause 52(17) of the Baw Baw Planning Scheme. The notice specified the prescribed penalty as $1,000. It also specified that, in addition to paying the prescribed penalty, the landowner must take corrective action which, in summary, amounted to certain revegetation works.

2 The landowner did not pay the amount specified in the planning infringement notice within the 14 days specified in the notice; nor did the landowner take the corrective action within the 60 days specified in the notice.

3 The landowner has applied to the tribunal for a declaration, pursuant to section 149B of the Planning and Environment Act, that the decision of the council to issue the planning infringement notice is unlawful.

4 Section 149B is cast in wide terms. It permits a person to apply to the tribunal for a declaration concerning anything done by a responsible authority under the Act. Strictly speaking a planning infringement notice is not an act of a responsible authority, but, rather, an act of an authorised officer of a responsible authority (see section 130(1)). However, for present purposes, I will proceed as if it amounts to the same thing; that is, something done by a responsible authority under the Planning and Environment Act.

5 The landowner's claim is based upon the assertion that certain exemptions in clause 52(17) apply, such as the exemption in relation to regrowth and the exemption in relation to fire protection. The landowner's representative says that before the vegetation was removed an officer of the council informed him that it would be lawful to do so.

6 In the circumstances, it is unnecessary to make any factual findings about these matters, because I am prepared to assume that, for the purposes of this proceeding, the landowner is correct in its assertion that the vegetation was cleared lawfully.

7 It is important to understand what a planning infringement notice is. A planning infringement notice provides an opportunity for a person, who the authorised officer of the council believes has committed an offence, to expiate the offence by the payment of a penalty or by the payment of a penalty and the taking of certain corrective action. To expiate an offence means to avoid being prosecuted for the offence. Significantly if a person pays the appropriate penalty and, where it is necessary, takes steps specified as being of a corrective nature, the offender expiates the offence. No further proceedings can then be taken in respect of the offence and no conviction for the offence may be regarded as having been recorded (see section 132(1)). On the other hand, if the offender chooses not to pay the penalty or, if relevant, not pay the penalty and not take the corrective action, that simply means that the alleged offence has not been expiated. It does not mean that the matter automatically goes to the Magistrates' Court. Rather the authorised officer for the responsible authority must make a decision as to what course to take.

8 The authorised officer may decide to initiate a prosecution in the Magistrates' Court. Or the authorised officer may decide to register the infringement penalty as part of the PERIN system. Or the authorised officer might decide to seek an enforcement order under the Planning and Environment Act. Or the authorised officer may simply decide to do nothing, on the basis, for example, that the landowner has given a good or satisfactory explanation for their conduct.

9 If a prosecution is launched in the Magistrates' Court, the Magistrate's powers are essentially confined to imposing a fine. Whilst it is true that a bond could be imposed that involved the taking of corrective action, the Magistrate is not placed in the same position as this tribunal would be if an application for an enforcement order is made.

10 If the infringement penalty is to be registered with the Magistrates' Court as part of the PERIN system, then the landowner will have opportunities to object and thus require the matter to be heard before a Magistrate.[1]

11 Examples have been known of councils engaging in prosecutions for breach of clause 52(17) of the scheme and for those prosecutions to be spectacular failures. Often the environment is better served by either the making of an enforcement order or, better still, the making of a consensual agreement for a landowner to undertake remedial works to remedy any action which might possibly be regarded as unlawful.

12 In any event it seems to me that this action is misconceived. The planning infringement notice effectively is a dead duck, or a sitting duck. It is a dead duck in the sense that the opportunity to expiate the offence has not been taken and that means that the planning infringement notice no longer provides an opportunity for expiating the offence. But the fact that that opportunity has not been taken up does not give the planning infringement notice the status of a conviction. It is a sitting duck, in the sense that if the authorised officer seeks to register the penalty notice under the PERIN system, it will only take an objection by the landowner to force the matter to come before the Magistrates' Court.

13 The landowner submits that if the tribunal exercised its discretion under section 149B it would be a more cost effective solution; and the matter would be resolved by a specialist tribunal rather than by the Magistrates' Court. That may or may not be the case. What is more relevant is that the Parliament has given the Magistrates' Court the task of determining whether prosecutions under the Planning and Environment Act are made out and, if so, what penalty should be imposed. Assuming that there is power to make the declaration sought, the prospect of such a declaration being made is so remote that this action has no realistic prospect of success. In the circumstances it is a proper response for the tribunal to exercise its power under section 75 of the Victorian Civil and Tribunal Act to summarily dismiss the matter so as to save further costs in relation to the matter.

14 I should point out that even if VCAT was to declare that the planning infringement notice was wrongly brought, that would not in fact stop the council from then initiating prosecution. Further, if the declaration that is sought is widened by amendment to include a declaration that the council does not have the power to initiate the prosecution, then as a matter of public policy, that would have to be refused. It is not appropriate, as a general rule, for the civil courts or tribunals to grant injunctions preventing the bringing of prosecutions in criminal courts.

15 I recommend that both the council and the landowner give serious consideration to their respective positions. Experience teaches that where incidents of the type referred to in the planning infringement notice occur, even if there is wrong on the side of one party, not every case warrants punishment. There will be such cases, of course, but there will be other cases where the more important objective is to take actions to mitigate, or compensate for, the loss of vegetation that occurred in the original incident. Every situation will be different and I am not seeking to dictate to the council what attitude it should take. My comments are merely designed to ensure that the matter is carefully considered.

[1] For example, the landowner may exercise the power under clause 3(6) of Schedule 7 of the Magistrates' Court Act 1989.