Bowden v Break O'Day Council

[2008] TASSC 52

[2008] TASSC 52

CITATION:                 Bowden v Break O'Day Council [2008] TASSC 52

PARTIES:  BOWDEN, John Coreaux
  TASMATEX PTY LTD
  v
  BREAK O'DAY COUNCIL

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  528/2008
DELIVERED ON:  5 September 2008
DELIVERED AT:  Hobart
HEARING DATE:  27 August 2008
JUDGMENT OF:  Slicer J
CATCHWORDS:

Development – Works – Land within Environment Protection Zone – Activities including slashing and clearing.

Land Use Planning and Approvals Act 1993 (Tas), s64.
Great Southern Property Managers v Colac-Otway Shire Council (2005)144 LGERA 247, followed.

Environment and Planning – Courts and tribunals with environment jurisdiction – Tasmania – Resource Management and Planning Appeal Tribunal and its predecessors – Powers and duties on appeal – Duty to give reasons – Extent of duty.

Land Use Planning and Approvals Act 1993 (Tas), s64.
Aust Dig Environment and Planning [596]
Hobart City Council v Resource Management & Planning Appeal Tribunal [2007] TASSC 99, distinguished.

Declarations and Injunctions – Jurisdiction – Civil enforcement proceedings – Injunction proscribing future use of land – Whether in the nature of sanction for offence.

Land Use Planning and Approvals Act 1993 (Tas), ss63, 64.
Great Lakes Council v Lani (1007) 148 LGERA 1; Re HIH Insurance; ASIC v Adler (2002) 42 ACSR 80; Re Tasmanian Spastics Association (1997) 23 ACSR 743, followed.
Rich v Australian Securities and Investments Commission (2004) 220 CLR 129, applied.

REPRESENTATION:

Counsel:
             Appellants:  M Brett
             Respondent:  S B McElwaine
Solicitors:
             Appellant:  Rae & Partners
             Respondent:  S B McElwaine

Judgment Number:  [2008] TASSC 52
Number of paragraphs:  23

Serial No 52/2008
File No 528/2008

JOHN COREAUX BOWDEN and TASMATEX PTY LTD
v BREAK O'DAY COUNCIL

REASONS FOR JUDGMENT  SLICER J

5 September 2008

1. The appellants owned land within an Environment Protection Zone prescribed by the respondent's planning scheme (Break O'Day Planning Scheme 1996) ("the scheme").  The appellants undertook work (without a permit required by the scheme, cl 4.1.1) on their property which included the grading of top soil and slashing of vegetation by mechanical means.  The land comprised over 450 hectares in total.  The area affected by the "clearing" works was approximately 10 hectares.

1. The respondent commenced proceedings against the appellants for the breach of the scheme in the Resource Management and Planning Appeal Tribunal ("the Tribunal"), pursuant to the Land Use Planning and Approvals Act 1993 (the "LUPA Act"), s64 and the Environmental Management and Pollution Control Act 1994 ("the Control Act"), s48. The terms of the application sought orders which included:

"1That the Respondents, their servants or agents, be permanently restrained from undertaking development by way of land clearing on the land unless the Respondents make application to the Break O'Day Council and obtain a valid planning permit for such land clearing;

2That, within a time to be determined by the Tribunal, the Respondents be required to engage a suitably qualified person or persons (with expertise and knowledge to be nominated by the Tribunal) to prepare a comprehensive rehabilitation assessment report in respect of land clearing undertaken by the Respondents on the land and that such report;

(a)  identify the extent of land clearing undertaken by the Respondents;

(b)  identify the environmental consequences of such land clearing; and

(c)  contain detailed recommendations for the remediation of the land including re-vegetation and erosion control measures

3…

4That each of the actions recommended in such report once approved by [sic] required to be implemented by the Respondents, their servants or agents, within a time to be determined by the Tribunal including follow up maintenance and care;

5That, for a period to be determined by the Tribunal, the Respondents be restrained from using the land for any purpose except to the extent required to implement the requirements of the approved report pursuant to these orders;

6That if the l and clearing the subject of this application has caused environmental harm or pollution pursuant to the provisions of the Environmental Management & Pollution Control Act 1994 then the Respondents be ordered to;

(a)  make good such contravention or default in a manner and within a period to be specified by the Tribunal;

(b)  by [sic] required to enter into an environmental improvement program upon such terms to be specified by the Tribunal;

(c)  by [sic] required to pay a sum to be determined by the Appeal Tribunal to the Environment Protection Fund by way of exemplary damages."

1. The orders of restraint or prohibition sought in pars1 to 5, differed in that one specified the form of conduct, namely land clearing, whilst the second referred to "use of land for any purpose".

1. The Tribunal found that the appellants had conducted works which breached the terms of the scheme and constituted conduct proscribed by the LUPA Act and the Control Act. It rejected the argument that "mere slashing" of vegetation could not constitute "the carrying out of works", or the "causing of environmental harm" prohibited by the legislation relied upon. The primary findings made by the Tribunal are not challenged by the appellants.

1. The Tribunal found the allegations to have been proved and made orders which included:

"1That the Respondents, their servants or agents, be permanently restrained from undertaking development by way of land clearance on the land unless the Respondents make application to the Break O'Day Council and obtain a valid planning permit for such land clearance;

2That the Respondents undertake the rehabilitation works as specified in the attached table marked 'A' within the timeframes allocated.

3That Council officers undertake an inspection 12 months following the date of this order and make recommendations regarding any further remedial and/or maintenance work including weed control.

4That the Respondents be required to undertake any remedial and/or named works as recommended by Council within the timeframe specified by Council.

5That all costs associated with the rehabilitation works referred to in paragraphs 2 and 3 and 4 be met by the Respondents.

6That the Respondents liaise with and comply with any directions of the Tasmanian Aboriginal Land and Sea Council (TALSC) and/or the Tasmanian Heritage consultant with regard to the proposed rehabilitation works for the identified nine Aboriginal sites that have been uncovered, interfered with, and/or damaged.

7That for a period of four years from the date of this order, the Respondents be restrained from using the land for any purpose except to the extent required to implement the requirements of the approved works pursuant to paragraphs 2 and 4 of these orders."

1. The appellants take no issue with the making of orders 1 to 6, and confine their contention to the power to make order 7.  The grounds of appeal relied upon in the hearing of the appeal state:

"1That the Tribunal erred in concluding that the slashing or cutting of live vegetation without removing the whole plant amounted to:

(a) development, within the meaning of the Land Use Planning and Approvals Act 1993 and the Break O'Day Planning Scheme 1996 and further, or in the alternative,

(b)  'land clearance' as defined in the Break O'Day Planning Scheme 1996.

…

4That the Tribunal erred in law in making order number 7 in that:

(a)  the imposition of such an order was outside the reasonable exercise of the Tribunal's discretion and represented a response to the contravention which was disproportionate and excessively harsh and further, or in the alternative

(b) was imposed as penalty against the appellants, when such a course was not permitted by the provisions of the Land Use Planning and Approvals Act 1993.

5That the Tribunal erred in that it did not provide any, or any adequate reasons, for its decision to impose order No 7."

Carrying out of works

1. The scheme defines development as including:

"iii)      the construction or carrying out of works"

and "works" as:

"… any changes to the natural or existing condition or topography of land including the removal, destruction or lopping of trees and the removal of vegetation or topsoil, but does not include forest practises, as defined in the Forest Practices Act 1985 carried out in State forests."

1. The "works" found by the Tribunal to have been carried out included the slashing of a large portion of vegetation and in some areas removal and piling of vegetation to an extent of leaving "sites" which contained bare sand. The latter could not, on any definition, be regarded as maintenance or preparation for regeneration. It is not necessary to here consider the hypothetical question of whether in particular circumstances a pruning or cutting back of vegetation can constitute "works" for the purpose of the scheme and the LUPA Act. Removal in the form carried out by the appellants involved "the physical act of displacing vegetation" and the "baring" of the soil. This was carried out in an Environment Protection Zone governed by the scheme, cl 11, the objectives of which provide:

"11.2.1  The objectives of the zone are to:

a)Protect environmental, economic and community resources from inappropriate or premature development and to require high standards of resource management for use and development.

b)Ensure that wilderness and high value conservation areas are protected from inappropriate development and to allow planning controls to provide for their long term protection.

c)Ensure that coastal areas are protected whilst allowing for a range of appropriate uses and developments.

d)Ensure that natural processes, areas of high environmental quality or scenic amenity, unstable or fragile landforms, unreserved or unprotected native flora and fauna, geoheritage, and threatened species are maintained and/or protected."

1. Whilst ploughing on farmland or in a timber reserve, planting, or the application of herbicide, might not in some schemes constitute "works" (Great Southern Property Managers v Colac-Otway Shire Council (2005) 144 LGERA 247), here there was substantial interference with plants growing in a sensitive zone which, themselves, were the flora to be protected. The Tribunal was entitled to conclude, on the whole of the evidence, that there had been acts of work carried out on the properties. It was entitled to conclude that the scraping of soil with a bulldozer and the piling of removed vegetation, at least at sites 1, 1A and 2 of the allotments, constituted proscribed conduct. It was entitled to find that the acts of "slashing" conducted on site 4, leaving an area dominated by bare soil with bracken growth, constituted "works" for the purpose of the scheme. Lot 5 might remain problematic although the replacement of heath leading to increased incursion of bracken might be sufficient. The Tribunal was entitled to conclude as a finding of fact that removal and replacement or intrusion by a different species (bracken and Erica Lusitanica – Spanish heath) constituted "clearance" within the meaning of the scheme. Irrespective, the Tribunal was entitled to conclude breach.

1. Ground 1 ought be dismissed.

Sanction or protection

1. Order 7 is couched in wide terms. It restrains the appellants from using the land for any purpose except rehabilitation. The power to make the order is afforded by the LUPA Act, s64, which relevantly provides:

"(1)   Where a person contravenes or fails or is likely to contravene or fail to comply with a provision of this Part, the Commission, a planning authority or a person who has, in the opinion of the Appeal Tribunal, a proper interest in the subject matter may apply to the Appeal Tribunal for an order under this section.

…

(3)    If —  

(a)     after hearing —  

(i)the applicant and the respondent; and

(ii)any other person who has, in the opinion of the Appeal Tribunal, a proper interest in the subject matter of the proceedings and desires to be heard in the proceedings —

the Appeal Tribunal is satisfied, on the balance of probabilities, that the respondent to the application has contravened or failed or is likely to contravene or fail to comply with a provision of this Part; or

…

the Appeal Tribunal may, by order —  

(c)require the respondent to refrain, either temporarily or permanently, from the act, or course of action, that constitutes the contravention of, or failure to comply with, this Part; and

(d)preclude, for a period specified by the Appeal Tribunal, the respondent from carrying out any use or development in relation to the land in respect of which the failure to comply or contravention relates; and

(e)require the respondent to make good the contravention or default in a manner, and within a period, specified by the Appeal Tribunal."

1. Section 64 has been placed by Parliament in the LUPA Act, Pt4, entitled "Enforcement of Planning Control". Division 4 is headed "Offences, Remedies &c". Division 4 contains four subheadings entitled:

"Obstruction of sealed schemes s63

Enforcing compliance with planning schemes and special planning orders s63A

Civil enforcement proceedings s64

Appeal in respect of decision of Appeal Tribunal under s64 s65"

1. The LUPA Act, s64(7), provides that a person who "contravenes, or fails to comply with, an order or a temporary order under this section is guilty of an offence" and is liable to a penalty of a fine not exceeding 500 penalty units.

1. There is a clear distinction between offences and civil remedies. Sections 63 and 63A provide for conviction and penalty. Any appeal would be of a nature provided by the Justices Act 1959. Enforcement is to be effected by recourse to the Sentencing Act 1997. Penalties are determined by penalty units and/or a daily cumulative assessment for continuance. The jurisdiction afforded by ss63 and 63A remains with the magistrates court. Section 64 provides for a different standard of proof (balance of probabilities, s64(3)(a)) and, apart from breach (s64(7)), makes no provision for fines or their fixing. It permits injunctive remedies and assessment of the costs of rehabilitation or restoration.

1. The appellants contend that order 7 can only be seen as a punitive order and as such one not afforded by the LUPA Act, s64(3)(d). Any order of that nature must be referable to a time needed for restoration, rehabilitation or maintenance of the status quo. Whilst an order might be made in terms of order 7, such order must provide a time limit or some term governing the remedy.

1. The respondent contends that s64 permits a "civil sanction" in the form often provided in the modern commercial and regulatory law. The Corporations Act 2001 (Cth), s1317E, states identified provisions as being "civil penalty provisions". If the Australian Securities and Investments Commission believes that a civil penalty provision has been contravened, it may apply for a declaration of contravention, a pecuniary penalty, disqualification, and/or compensation order, (Corporations Act, ss206C, 920A, 1317J(1)).  Civil penalty orders are treated as civil proceedings for the purpose of the application of the rules of evidence and procedure (s1317L).  Disqualification or exposure to dismissal, as distinct from compensation, can constitute a penalty or forfeiture (Police Service Board v Morris (1985) 156 CLR 397). Disqualification for the purpose of the retention of historic privileges concerning self-incrimination remains characterised as a penalty (Rich v Australian Securities and Investments Commission (2004) 220 CLR 129). In their joint reasons for judgment, Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ considered the distinction between "punitive" and "protective proceedings" at par32 in the following terms:

Secondly, and more fundamentally, the supposed distinction between 'punitive' and 'protective' proceedings or orders suffers the same difficulties as attempting to classify all proceedings as either civil or criminal.  Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161. At best, the distinction between 'punitive' and 'protective' is elusive. That point is readily illustrated when it is recalled that, as McColl JA pointed out in Rich (2003) 183 FLR 361 at 430 [353]; 203 ALR 671 at 734; 48 ACSR 6 at 69; 22 ACLC 286 at 335, account must be taken in sentencing a criminal offender of the need to protect society, deter both the offender and others, to exact retribution and to promote reform Veen v The Queen [No 2] (1988) 164 CLR 465 at 476."

1. At par35, they posed the question to be asked as:

"That it may be possible to characterise proceedings as having a purpose of protecting the public is not determinative. And to begin the inquiry from an a priori classification of proceedings as either protective or penal invites error. It invites error primarily because the classification adopted assumes mutual exclusivity of the categories chosen when they are not, and because the classification is itself unstable. To assume mutual exclusivity of the categories is to fall into the same kind of error as was identified in the constitutional context in Actors and Announcers Equity Association of Australia v Fontana Films Pty Ltd (1982) 150 CLR 169 at 192-194. See also Re F; Ex parte F (1986) 161 CLR 376 at 387-388; Mutual Pools & Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155 at 188; Cunliffe v The Commonwealth (1994) 182 CLR 272 at 295; Grain Pool (WA) v The Commonwealth (2000) 202 CLR 479 at 492 [16]. Just as a law may bear several characters, a proceeding may seek relief which, if granted, would protect the public but would also penalise the person against whom it is granted. That a proceeding may bear several characters does not deny that it bears each of those characters, Stone, Legal System and Lawyers' Reasonings (1964), pp 248-252. Moreover, as Hayne J emphasised in Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161 at 205-206 [136], those who seek the 'essential character' of statutory provisions do not proffer explanations of that process of distillation."

and concluded at par37:

"If a disqualification order is made, the person against whom the order is made ceases to be a director, alternate director, or a secretary of a company (s 206A(2)), unless given permission under s 206. For s 206G of the 2001 Act to manage the corporation concerned. The order for disqualification thus causes the person against whom it is made to forfeit any office then held in a corporation and forbids that person from holding office in a corporation for the duration of the disqualification order. Those consequences, whether taken separately or in combination, when inflicted on account of a defendant's wrongdoing, are penalties. That the penalty is not exacted in the form of a money payment does not deny that conclusion. As the authorities referred to earlier in these reasons reveal, equity's concern with penalties was never confined to pecuniary penalties. If exposure to loss of office or exposure to dismissal from a police force Police Service Board v Morris (1985) 156 CLR 397 is exposure to penalty, exposure to a disqualification order is exposure to a penalty."

1. In Re HIH Insurance; ASIC v Adler (2002) 42 ACSR 80, Santow J determined a disqualification order to be protective, as did Merkel J in Re Tasmanian Spastics Association (1997) 23 ACSR 743, although he regarded the sanction to involve both general and personal deterrence. But these cases involved a clear and specified regulatory scheme created by Parliament. Here the legislation does not provide such specificity. It distinguishes between an offence and civil proceedings. The power of injunctive relief or disqualification from use is in the form of an ordinary civil remedy and not akin to a quasi-criminal sanction. It is protective in nature, not punitive. (See generally Civil penalty orders: Assessing the appropriate length and quantum of disqualification and pecuniary penalty orders, Welsh (2008) 31 Aust Bar Review 96).

1. In Great Lakes Council v Lani (2007) 148 LGERA 1, the New South Wales land and Environment Court was required to consider the import of "civil enforcement proceedings". The court recognised that care must be taken not to use a declaration of a breach of a statute in civil proceedings as a substitute for criminal prosecution. Any injunctive power must attempt but remedial or restorative action or conduct, not operate as a sanction. In his reasons for judgment, Preston J stated at pars23 - 24:

"… care must be taken not to use a declaration of breach of a statute in civil enforcement proceedings as a substitute for a criminal prosecution. It is not appropriate for the Court in the exercising of its civil enforcement jurisdiction to punish wrong-doers under the guise of remedying a breach: Liverpool City Council v Roads and Traffic Authority (No 1) (1991) 74 LGRA 265 at 280. A declaration of breach of a statute in civil enforcement proceedings is not to be equated with the entry of a conviction upon a finding of guilt in a criminal prosecution. The latter does have an effect on the person, including by creating a criminal record for the person, which may have external consequences for that person. A declaration of breach of a statute in civil enforcement proceedings does not have such consequences.

The Council could have brought criminal prosecutions in respect of each breach of the statutes but elected not to do so. The reasons why the Council undertook this course are perfectly understandable and related to the greater range of remedial relief available in civil enforcement proceedings compared to that available in criminal prosecutions and to the lower standard of proof in civil enforcement proceedings compared to criminal prosecutions. Nevertheless, that election to bring civil enforcement proceedings having been made, the civil enforcement proceedings should not be now used as a substitute for criminal prosecutions."

1. The analogous reasoning advanced by the respondent does not advantage its cause.  Cases such as Australian Securities & Investment Commission (ASIC) v Sweeney [2001] NSWSC 114; Corporate Affairs Commission of NSW v Transphere Pty Ltd (1988) 15 NSWLR 596 and Australian Securities & Investment Commission (ASIC) v Atlantic 3 Financial (Aust) [2006] QSC 132, which discuss declaratory relief as part of regulatory objects and public interest concern legislation, which also permits sanction by way of fine or payment of an equivalent form of liquidated damages. Here the distinction between offences and civil redress is clearly stated by Parliament. Remedy, not sanction, is the power afforded by s64.

1. It might be that order 7 was in the form of remedy.  It might be that the Tribunal intended a four year period to be necessary to enable the remedial orders to have effect.  The order might have been intended to allow those necessary works to restore the land and its environment without disturbance from other use of the land.  But any further development work or usage would require licence from the controlling authority, the Break O'Day Council.  That licence would not be forthcoming if the work or use impacted on the rehabilitation of the affected portions of land.  Given my conclusion in respect of ground 5, it is not necessary to uphold ground 4.  If the order was intended as a sanction, it was beyond power (Fell v Hobart City Council [2000] TASRMPAT 17; Dorset Council v D P & L J Krushka Pty Ltd [1999] TASSC 69) and, in any event, subject to the critique that it was disproportionate, given the area of affected land in proportion to the total area. If it was intended as remedial or protective, then it was within power and, subject to the evidence of impact and effect, could be seen as appropriate.

Failure to give reasons

1. This is not a case where the claimed failure is but one of detail or concerning peripheral or secondary matters (Hobart City Council v Resource Management and Planning Appeal Tribunal [2007] TASSC 99). The Tribunal did not state the basis for the making of order 7. If the order was intended as one remedial or protective, then it failed to address questions of the time needed, the interrelationship between the affected and non-affected areas, the proportionality of those areas, and what further form of use ought be prohibited. The responsibility of the respondent and its existing powers of licence ought remain relevant to any consideration of future prohibition.

1. Ground 5 ought be upheld and order 7 quashed.  The Tribunal might, of course, order re-imposition on a permitted basis.

Orders:

(1)The appeal be upheld.

(2)Order 7 made by the Tribunal on 12 May 2008 be quashed.

(3)The matter, limited to reconsideration of order 7, be remitted to the Tribunal for consideration according to law.