Director, Fisheries Queensland, Department of Agriculture and Fisheries v Archer Operations Pty Ltd

[2018] QPEC 39

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Director, Fisheries Queensland, Department of Agriculture and Fisheries v Archer Operations Pty Ltd [2018] QPEC 39

PARTIES:

DIRECTOR, FISHERIES QUEENSLAND, DEPARTMENT OF AGRICULTURE AND FISHERIES
(applicant)

v

ARCHER OPERATIONS PTY LTD ACN 105 932 634
(respondent)

FILE NO/S:

1902 of 2018

DIVISION:

Planning and Environment

PROCEEDING:

Application in Pending Proceeding

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

3 September 2018

DELIVERED AT:

Brisbane

HEARING DATE:

24 August 2018 and further written submissions delivered 29 and 30 August 2018

JUDGE:

Kefford DCJ

ORDER:

The respondent’s request to have the originating application, or part of it, struck out or stayed is denied.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPLICATION – where in the substantive proceedings the applicant seeks a declaration that the respondent committed a development offence and an order or enforcement order directing the respondent to remedy the effect of the development offence - where the respondent seeks determination of preliminary questions as to the power of the Court to make the declaration and the order or the enforcement order sought - whether the proceedings, or any part of them, should be struck out or the subject of a permanent stay – whether the proceedings are an abuse of process – whether the proceedings result in the respondent being twice punished for the same conduct

LEGISLATION:

Criminal Code Act 1899 (Qld) s 16, s 17

Fisheries Act 1994 (Qld) s 123

Planning Act 2016 (Qld) s 174, s 180, s 181, s 225(f), s 311 and s 312

Sustainable Planning Act 2009 (Qld) s 578, s 597, s 609, s 610

COUNSEL:

A Skoien for the applicant
K Kelso for the respondent

SOLICITORS:

Department of Agriculture and Fisheries for the applicant
Law Essentials for the respondent

Introduction

1. In the substantive proceedings, commenced on 23 May 2018, the applicant seeks a declaration that the respondent has committed a development offence, namely the carrying out of operational work without an effective development permit. 

1. The acts comprising the alleged offence involve the placement of fill at a property located at 101-135 Toogoom Road, Toogom between 2 June 2015 and 12 July 2016.  As a result of the placement of the fill, marine plants were removed, damaged or destroyed.

1. The applicant also seeks an enforcement order directing the respondent to remedy the effect of the development offence by restoring and rehabilitating the mangroves and associated marine plants in the area to return the tidal area to the marine characteristics that existed prior to the development offence.

1. The issue for determination in the present hearing is whether the proceedings, or any part of them, should be struck out or the subject of a permanent stay on the basis that the court has no power to make the declaration and enforcement order and the proceedings are an abuse of process.

1. The abuse of process is said to arise from two uncontested facts. First, on 20 October 2017, the respondent was convicted and sentenced for an offence against s 123 of the Fisheries Act 1994 (Qld) as a result of the unlawful marine plant destruction. The particulars of the development offence are identical to the charge under the Fisheries Act 1994.  Second, the time limit for the applicant to commence a proceeding to prosecute the development offence had passed at the time that the applicant commenced the subject proceeding.

1. Having regard to that context, the respondent raises four bases for strike out or permanent stay of the proceedings. 

1. First, there is no power to grant an enforcement order under s 180 of the Planning Act 2016 in respect of a development offence when, at the time of the commencement of the proceedings, there had been no prosecution for the development offence and the time limit for prosecution of the offence has passed.

1. Second, the proceedings for an enforcement order are an abuse of process given there has been no prosecution of the development offence in time and the respondent has already been prosecuted and punished for the unlawful marine plant destruction under s 123 of the Fisheries Act 1994.

1. Third, the Originating Application, or any part thereof, is a charge of an offence for which the Respondent has already been tried and convicted within the meaning of s 17 of the Criminal Code.

1. Fourth, the making of the enforcement order would constitute a second punishment for the same act or omission within the meaning of s 16 of the Criminal Code.

1. At the hearing, the respondent indicated that it no longer pressed the issues raised with respect to s 16 and s 17 of the Criminal Code.  However, it raised the issues again in further written submissions delivered after the hearing.  All four issues are addressed below.

Absence of power to grant an enforcement order and abuse of process

1. The first two bases are closely related.  I will deal with them together.

1. The proceedings presently seek a declaration that a development offence has occurred under s 578 of the Sustainable Planning Act 2009 (Qld).

1. Section 578 of the now repealed Sustainable Planning Act 2009 states:

“578    Carrying out assessable development without permit

(1)A person must not carry out assessable development unless there is an effective development permit for the development.

Maximum penalty—1665 penalty units.

(2)       Subsection (1)—

(a)applies subject to subdivision 2; and

(b)does not apply to development carried out under section 342(3).

(3)Despite subsection (1), the maximum penalty is 17000 penalty units if the assessable development is on a Queensland heritage place or local heritage place.”

1. As was conceded by the applicant, the declaration it seeks is not necessary. The primary focus of the proceedings is the enforcement order the applicant seeks under s 180 of the Planning Act 2016 (Qld), which states:

“180    Enforcement orders

(1)Any person may start proceedings in the P&E Court for an enforcement order.

(2)An enforcement order is an order that requires a person to do either or both of the following—

(a)refrain from committing a development offence;

(b)remedy the effect of a development offence in a stated way.

Example—

An enforcement order may require a person to pay compensation to someone who, because of the offence, has—

(a)suffered loss of income; or

(b)suffered a reduction in the value of, or damage to, property; or

(c)incurred expenses to replace or repair property or prevent or minimise, or attempt to prevent or minimise, the loss, reduction or damage.

(3)The P&E Court may make an enforcement order if the court considers the development offence—

(a)has been committed; or

(b)will be committed unless the order is made.

(4)The P&E Court may make an enforcement order (an interim enforcement order) pending a decision in proceedings for the enforcement order.

(5)An enforcement order or interim enforcement order may direct the respondent—

(a)to stop an activity that constitutes a development offence; or

(b)not to start an activity that constitutes a development offence; or

(c)to do anything required to stop committing a development offence; or

(d)to return anything to a condition as close as practicable to the condition the thing was in immediately before a development offence was committed; or

(e)to do anything to comply with this Act.

Examples of what the respondent may be directed to do—

•     to repair, demolish or remove a building

•      to rehabilitate or restore vegetation cleared from land

(6)An enforcement order or interim enforcement order may be in terms the P&E Court considers appropriate to secure compliance with this Act.

Example—

An enforcement order may require the respondent to provide security for the reasonable cost of taking the stated action.

(7)An enforcement order or interim enforcement order must state the period within which the respondent must comply with the order.

(8)A person must not contravene an enforcement order or interim enforcement order.

Maximum penalty—4,500 penalty units or 2 years imprisonment.

(9)Unless the P&E Court orders otherwise, an enforcement order, or interim enforcement order, other than an order to apply for a development permit—

(a)attaches to the premises; and

(b)binds the owner, the owner’s successors in title and any occupier of the premises.

(10)If the enforcement order, or interim enforcement order, does attach to the premises, the respondent must ask the registrar of titles, by a notice given within 10 business days after the order is made, to record the making of the order on the appropriate register for the premises.

Maximum penalty—200 penalty units.

(11)A person may apply to the P&E Court for an order (a compliance order) that states the enforcement order, or interim enforcement order, has been complied with.

(12)If a person gives a notice that a compliance order has been made, and a copy of the compliance order, to the registrar of titles, the registrar must remove the record of the making of the enforcement order, or interim enforcement order, from the appropriate register.

(13)If the enforcement order, or interim enforcement order, is not complied with within the period stated in the order, the enforcement authority may—

(a)take the action required under the order; and

(b)recover the reasonable cost of taking the action as a debt owing to the authority from the respondent.

(14)A notice given to the registrar of titles under this section must be in the form, and accompanied by the fee, required under the Land Title Act.”

1. Further clarification of the court’s powers is provided by s 181 of the Planning Act2016, which states:

“181    P&E Court’s powers about enforcement orders

(1)The P&E Court’s power to make an enforcement order or interim enforcement order may be exercised whether or not the development offence has been prosecuted.

(2)The power to order a person to stop, or not to start, an activity may be exercised whether or not—

(a)the P&E Court considers the person intends to engage, or to continue to engage, in the activity; or

(b) the person has previously engaged in an activity of the same type; or

(c)there is danger of substantial damage to property or injury to another person if the person engages, or continues to engage, in the activity.

(3)The power to order a person to do anything may be exercised whether or not—

(a)the P&E Court considers the person intends to fail, or to continue to fail, to do the thing; or

(b)the person has previously failed to do a thing of the same type; or

(c)there is danger of substantial damage to property or injury to another person if the person fails, or continues to fail, to do the thing.

(4)A person may apply to the P&E Court to cancel or change an enforcement order or interim enforcement order.

(5)The P&E Court’s powers under this section are in addition to the court’s other powers.” 

1. Under the Sustainable Planning Act 2009, there was a jurisdictional limit to the prosecution of development offences in the Magistrates Court.  The Sustainable Planning Act 2009 relevantly states:

“597    Proceedings for offences

(1)A person may bring a proceeding in a Magistrates Court on a complaint to prosecute another person for an offence against this part.

(2) The person may bring the proceeding whether or not any right of the person has been, or may be, infringed by, or because of, the commission of the offence.

(3)However, a proceeding may only be brought by the assessing authority for an offence under—

(a)section 574, 578 or 580 about the building assessment provisions; or

(b)section 579, 587, 594 or 595.

…

609     Summary proceedings for offences

Proceedings for an offence against this Act are to be taken in a summary way under the Justices Act 1886.

610     Limitation on time for starting proceedings

A proceeding for an offence against this Act must start—

(a)       within 1 year after the commission of the offence; or

(b)within 6 months after the offence comes to the complainant’s knowledge.”

1. For offences brought under the Planning Act 2016, as and from 3 July 2016, the Planning Act2016 provides:

“174    Proceedings for offences

(1)Proceedings (offence proceedings) for an offence against this Act—

(a)are to be taken in a summary way; and

(b)must start—

(i)within 1 year after the offence is committed; or

(ii)within 1 year after the offence comes to the complainant’s knowledge.

(2)However, only the enforcement authority may bring a proceeding for an offence under—

(a)if the offence is about the building assessment provisions—sections 163 or 164; or

(b)otherwise—sections 168, 172 or 226.

(3)In a complaint starting offence proceedings, a statement that the matter of the complaint came to the complainant’s knowledge on a stated day is evidence of the matter.”

1. It is submitted by the respondent that the transitional provisions of the Planning Act 2016 do not expressly extend the application of the time limits contained within s 174 of the Planning Act2016 to offences alleged to have occurred prior to its enactment on 3 July 2016.

1. The respondent also submits that s 225(f), s 311 and s 312 of the Planning Act 2016 do not remove the requirement to institute proceedings within 12 months of the date of the offence being committed or within 6 months of the alleged offence coming to the attention of the complainant.

1. On that basis, the respondent submits that the time limit as prescribed by s 597 of the Sustainable Planning Act 2009 applies. 

1. The applicant does not cavil with these submissions.  There is no dispute between the parties that there has been no charge brought for the development offence.  There is also no dispute that the applicant could not now bring a charge, as the time within which it could commence prosecution proceedings has passed.

1. The respondent submits that in order for the court to be able to make a declaration that an offence under the Sustainable Planning Act 2009 has occurred, or a finding of fact to that effect under s 180(3) of the Planning Act 2016, there must be the ability for the offence to be charged.  

1. The respondent submits that it is an absolute defence to a charge brought pursuant to s 578 of the Sustainable Planning Act 2009 to establish that a prosecution is brought out of time or that a prosecution is not possible to be instituted.  It submits that it is an abuse of process to adopt a back door process to establish criminal liability in circumstances where bringing the charge in a criminal court would fail.

1. The respondent submits that for the court to be satisfied that a development offence has been committed, the court must be satisfied to the requisite Briginhaw standard that the offence is not only made out, but importantly, as stated above, that it is able to be brought in the first place. The respondent submits that before the power conferred under s 181(1) of the Planning Act 2016 is enlivened, the court must be satisfied to the requisite standard that the charge for the development offence can be brought.  It submits that it cannot in this case because of the “absolute defence” that a prosecution would be out of time.

1. I do not accept that the relief sought in these proceedings is contingent upon a finding that the applicant is able to bring a prosecution for the development offence or on an entitlement to bring such a prosecution at the time of commencing proceedings for an enforcement order. 

1. There is nothing in the Sustainable Planning Act 2009, the Planning and Environment Court Act 2016 (Qld) or the Planning Act 2016 that requires the court to be satisfied of the availability of a summary prosecution for a development offence in order for the court to be satisfied that a development offence has been committed.  To enliven the court’s power to make an enforcement order, the court only has to be satisfied, relevantly, that the development offence has been committed.

1. The provisions in the Sustainable Planning Act 2009 and the Planning Act 2016 that limit the entitlement to bring a prosecution for a development offence in the Magistrates Court do not apply to a proceeding for an enforcement order.  There is no time limit for bringing enforcement proceedings.  

1. There is also no provision in the Sustainable Planning Act 2009, the Planning and Environment Court Act 2016 or the Planning Act 2016 that places any time limit on the bringing of proceedings for declarations about the lawfulness of land use and consequential orders. 

1. The absence of a jurisdictional limit for proceedings in the Planning and Environment Court of the kind referred to by the respondent is also apparent from the context in which s 180 of the Planning Act 2016 appears. The structure of Chapter 5 of the Planning Act 2016, which relates to offences and enforcement, is set out in s 160. The time limit relied on by the respondent appears in Part 4, which is about proceedings in a Magistrates Court. There is no time limit in Part 2, which creates development offences. There is also no time limit in Part 5, which is about orders made by the Planning and Environment Court requiring a person not to commit a development offence or to remedy the effect of a development offence.

1. The position was conveniently summarised by Counsel for the applicant as follows:

(a) s 578 of the Sustainable Planning Act 2009 (now s 163 of the Planning Act 2016) creates the offence;

(b) s 597 of the Sustainable Planning Act 2009 (now s 174(1) of the Planning Act 2016) creates the entitlement to bring proceedings for summary prosecutions for such an offence;

(c) s 610 of the Sustainable Planning Act 2009 (now s 174(1)(b) of the Planning Act 2016) only limits the entitlement to bring such summary prosecutions; and

(d) s 610 of the Sustainable Planning Act 2009 (now s 174(1)(b) of the Planning Act 2016) does not place any limit, or restriction, or condition upon on the offence itself.

1. Open standing to bring proceedings in the Magistrates Court highlights the difficulty with the statutory construction contended for by the respondent. Whether a prosecution proceeding in the Magistrates Court is out of time would be readily ascertainable in that proceeding. It would be incumbent on the party commencing the proceeding to adduce evidence about when the offence came to the knowledge of that party. The same could not be said were the limitation contended for by the respondent to be read into s 180 of the Planning Act 2016.  To succeed on this point, the respondent would need to establish that the time limit had passed for all persons who might prosecute the offence.  This would be an almost impossible hurdle, given the provision is one with open standing and the time limit is expressed by reference to when the offence comes to the attention of the person prosecuting the offence.

1. Any unfairness occasioned by the delay in commencing proceedings for an enforcement order is relevant to the exercise of the court’s discretion to make an enforcement order.  It is not a bar to the proceeding, nor does it demonstrate the proceeding is an abuse of process.

Abuse of process – section 17 of the Criminal Code

1. The respondent submits that the prior conviction on 20 October 2017 in the Hervey Bay Magistrates Court is a defence to a development offence under s 578 of the Sustainable Planning Act 2009 by virtue of s 17 of the Criminal Code.

1. Section 17 of the Criminal Code states:

“17     Former conviction or acquittal

It is a defence to a charge of any offence to show that the accused person has already been tried, and convicted or acquitted upon an indictment on which the person might have been convicted of the offence with which the person is charged, or has already been acquitted upon indictment, or has already been convicted, of an offence of which the person might be convicted upon the indictment or complaint on which the person is charged.

Note—

This section does not apply to the charge mentioned in section 678B (Court may order retrial for murder—fresh and compelling evidence) or 678C (Court may order retrial for 25 year offence—tainted acquittal).”

1. There is no dispute between the parties that the prior conviction is based on identical facts as those alleged to constitute the development offence.

1. Section 17 of the Criminal Code provides a defence to a “charge” of any offence. 

1. Schedule 1 of the Acts Interpretation Act 1954 states:

“charge, of an offence, means a charge in any form, including, for example, the following—

(a)      a charge on an arrest;

(b) a complaint under the Justices Act 1886;

(c)a charge by a court under the Justices Act 1886, section 42(1A) or another provision of an Act;

(d)      an indictment.”

1. While the definition of a charge in Schedule 1 of the Acts Interpretation Act 1954 is an inclusive definition, unlike the examples provided in the definition, the Originating Application is not a document commencing a prosecution for the development offence.  The purpose of the proceedings is not to punish the respondent for committing the development offence: rather, the relief sought is remedial in nature.

1. As such, while these proceedings rely upon facts that could found a charge for a summary prosecution, neither the making of the allegations in the Originating Application, nor the seeking of declarations and orders based upon those allegations constitutes a “charge” within the meaning of that expression in s 17 of the Criminal Code. 

Abuse of process – twice punished - section 16 of the Criminal Code

1. Initially, as documented in the order of His Honour Judge Rackemann made 2 August 2018, the respondent alleged that the making of an enforcement order would constitute a second punishment for the same act or omission within the meaning of s 16 of the Criminal Code.

1. Section 16 of the Criminal Code states:

“16     Person not to be twice punished for the same offence

A person can not be twice punished either under the provisions of this Code or under the provisions of any other law for the same act or omission, except in the case where the act or omission is such that by means thereof the person causes the death of another person, in which case the person may be convicted of the offence of which the person is guilty by reason of causing such death, notwithstanding that the person has already been convicted of some other offence constituted by the act or omission.”

1. As I have already mentioned, the relief sought in this proceedings does not constitute punishment. It is remedial in nature. As such, the seeking of the declaration and enforcement order does not offend s 16 of the Criminal Code.

1. The present proceeding also seeks enforcement costs, including investigation costs pursuant to s 61(1) of the Planning and Environment Court Act 2016.

1. On 20 October 2017, as part of the orders sought in the Hervey Bay Magistrates Court, the applicant sought an order for payment of its reasonably incurred disbursements said to be payable pursuant to Schedule 2 Part 3 of the Justices Regulation2014. The court made the order sought. It was ordered to pay, inter alia, disbursements said to be pursuant to Schedule 2 Part 3 of the Justices Regulation2014.

1. The respondent submits that the seeking of further investigation costs when the applicant has already had an opportunity to seek investigation costs and have them paid is a further example of an abuse of process.

1. The extent to which costs have been awarded will, no doubt, be relevant to the court’s exercise of discretion in determining any costs award in this proceeding.  That is a matter for another day.  The request for an order for costs is not an abuse of process.

Conclusion

1. There is no merit in any of the respondent’s preliminary points.

1. The respondent’s request to have the Originating Application, or part of it, struck out or stayed is denied.