Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4)

[2011] NSWLEC 6

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6

Hearing dates:

7 February 2011

Decision date:

07 February 2011

Before:

Pepper J

Decision:

Consistent with the reasoning above, the Court:

(1) declares that between about 15 October 2010 and 18 October 2010 the Respondent, in breach of s 75D(2) of the EPAA carried out development on Lot 100 Deposited Plan 1088254 at Wattle Ridge Road, Hill Top, New South Wales, that was a project to which Pt 3A of that Act applied, namely, the clearing of land without the approval of the Minister of Planning given under that Part;

(2) declares that between 24 October 2010 and 27 October 2010 the Respondent, in breach of s 75D(2) of the EPAA carried out development on Lot 100 Deposited Plan 1088254 at Wattle Ridge Road, Hill Top, New South Wales, that was a project to which Pt 3A of that Act applied, namely, the clearing of land without the approval of the Minister of Planning given under that Part; and

(3) otherwise dismisses the proceedings.

Catchwords:

INJUNCTIONS AND DECLARATIONS - whether consent declarations ought to be made only for past unlawful clearing - no continuing or future breach - whether there is utility in making the declarations sought - declarations made

Legislation Cited:

Environmental Planning and Assessment Act 1979 s 75D(2)

Cases Cited:

Gedeon v NSW Crime Commission [2008] HCA 43; (2008) 236 CLR 120
Great Lakes Council v Lani [2007] NSWLEC 681; (2007) 158 LGERA 1
Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 [2010] NSWLEC 210
Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 2) [2010] NSWLEC 219
Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 3) [2010] NSWLEC 221
Humane Society v Kyodo Senpaku [2006] FCAFC 116; (2006) 154 FCR 425

Category:

Principal judgment

Parties:

Hill Top Residents Action Group Inc (Applicant)
Minister Administering the Sporting Venues Authorities Act 2008 (Respondent)

Representation:

Mr J Lazarus (Applicant)
Mr M Hall (Respondent)
Pikes Lawyers (Applicant)
Crown Solicitor's Office (Respondent)

File Number(s):

40839 of 2010

EX TEMPORE Judgment

Introduction

1. Before the Court is an application, by consent, for the Court to make two declarations with respect to past breaches of s 75D(2) of the Environmental Planning and Assessment Act 1979 ("the EPAA") by the Minister Administering the Sporting Venues Authorities Act 2008 ("the Minister").

1. The issue the application raises is whether, in circumstances where the breaches are historical in nature and are not likely to be repeated in the future, there is any utility in making the declarations sought.

1. Given the circumstances underlying this application, it is, in my opinion, appropriate to grant the relief sought.

Factual Circumstances Giving Rise to the Declarations Sought

1. The factual background giving rise to the application may be found in Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 [2010] NSWLEC 210 ("the first Hill Top decision"), Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 2) [2010] NSWLEC 219 ("the second Hill Top decision") and Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 3) [2010] NSWLEC 221 ("the third Hill Top decision"). I adopt the factual background and findings made in those decisions for the purpose of the present decision.

1. The first declaration sought is as follows:

The Court declares that between about 15 October 2010 and 18 October 2010 the Respondent, in breach of s.75D(2) of the Environmental Planning and Assessment Act 1979 carried out development on Lot 100 Deposited Plan 1088254 at Wattle Ridge Road, Hill Top, New South Wales that was a project to which Part 3A of that Act applied, namely, the clearing of land without the approval of the Minister of Planning given under that Part.

It is directly referable to the second Hill Top decision.

1. The second declaration sought is in these terms:

The Court declares that between 24 October 2010 and 27 October 2010 the Respondent, in breach of section 75D(2) of the Environmental Planning and Assessment Act 1979 carried out development on Lot 100 Deposited Plan 1088254 at Wattle Ridge Road, Hill Top, New South Wales that was a project to which Part 3A of that Act applied, namely, the clearing of land without the approval of the Minister of Planning given under that Part.

1. Part of the background for this declaration is found in the third Hill Top decision. However, this declaration relates to a new breach by the Minister, the circumstances of which are set out in the affidavit of Mr Matthew Handbury sworn 15 December 2010.

1. That affidavit makes it clear that an area cleared for the sedimentation pond for the 50 m pistol range does not correspond to the location of the pond in any of the approved plans.

1. The affidavit also deposed to the fact that a modification application was lodged on 4 November 2010 which, if granted, would approve the clearing. It is not in dispute that approval was subsequently granted on 15 December 2010.

1. Accordingly, and similar to the first declaration sought, the second declaration is in respect of a past breach of the EPAA.

The Declarations Ought to be Made

1. There is no question that the Court has the jurisdiction to make the declarations the parties seek. As was frankly and properly conceded by the Minister, on both occasions the Minister has breached the EPAA as a result of unapproved, and therefore, unlawful clearing of land. Lest there be any doubt, the Court finds this to be the case in relation to both breaches.

1. However, the mere fact that statutory breaches have occurred and that by consent the declarations are sought, does not automatically result in the Court making the declarations, even allowing for the wide discretion the Court has to grant this form of relief.

1. In Great Lakes Council v Lani [2007] NSWLEC 681; (2007) 158 LGERA 1 Preston J declined to make the declarations sought therein. In Lani the applicant council sought orders to remedy and restrain breaches of the EPAA, the Native Vegetation and Conservation Act 1997 and the National Parks and Wildlife Act 1974. The breaches arose from two instances of clearing of native vegetation on a public reserve by the respondents. The breaches were admitted by the respondents at the commencement of the trial. They were not continuing. In addition to the injunctive relief sought (and granted), the council urged upon the Court the making of declarations in the terms proffered. The council argued that it was appropriate to make the declarations having regard to the seriousness of the breaches. That is to say, there ought to be a public pronouncement by the Court, in the form of declarations, that the respondents had breached the various environmental statutes. The respondents contested the appropriateness of the Court making the declarations.

1. In refusing to grant that aspect of the relief sought, his Honour stated the following principles (at [19]-[26]):

19 Whilst the Court would have jurisdiction to make declarations that the respondents have breached the planning or environmental statutes in question in this case, I have determined, as a matter of discretion, that declarations would not be appropriate in the circumstances of this case.

20 First, the making of a declaration by itself would not have any practical effect in the circumstances of this case. A declaration that a breach of a statute has occurred does not have any constitutive effect - it does not bring about any change in the rights or duties of the parties.

21 Secondly, declarations of breach of the statutes are not necessary in order for the Court to have jurisdiction to make other orders including the injunctive orders to remedy or restrain breaches of the statute. The Court can make the injunctive orders agreed to by the parties and found by the Court to be appropriate without first making declarations that the respondents have breached the statutes. The situation in this case is to be contrasted to the regime under the Corporations Act 2001 (Cth), considered in Australian Securities and Investments Commission v Rich (2004) 50 ACSR 500, where the Court can only make consequential orders of a pecuniary penalty order or a disqualification order once a declaration of breach of the statute has been made under s 1317E of the Corporations Act .

22 Thirdly, a declaration of breach of a statute by itself neither remedies past breaches of the statute nor restrains any future breaches of the statute. Only the injunctive orders, agreed to by the parties and found by the Court to be appropriate to be made, will achieve the consequences of remedying the past breaches and restraining future breaches of the statutes.

23 Fourthly, 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 appropr iate 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 Traffc Authority (No 1) (1991) 74 LGRA 265 at 280. A declaration of breach of a stat ute 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.

24 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.

25 I accept that a legitimate purpose of civil enforcement proceedings is for there to be a finding by the Court and through its judgment a public pronouncement that a breach of the law has occurred by the respondents. However, this effect can be achieved by the Court making findings in the judgment of the Court, which, of course, is a public document. The Court's judgment will suffice to publicly expose and denounce on behalf of the community the unlawful behaviour in which the respondents have engaged. I have set out above in full each of the findings of the Court, including those that have been admitted in the points of claim, together with the consequences that flow from those findings as to the breaches of each of the statutes. This public pronouncement in the judgment suffices to achieve the purpose of public exposure and denouncement of the unlawful conduct of the respondents.

26 For these reasons, I decline to make the declarations sought by the Council.

1. Like Lani , the making of the declarations in the present case would not, by themselves, have any practical effect on the rights or duties of the parties. Similarly, the declarations will neither remedy the past breaches of the EPAA by the Minister nor restrain any future breaches of that Act.

1. However, unlike Lani , in my view, it is appropriate to grant the declaratory relief sought for the following reasons. First, while all breaches of s 75D of the EPAA are serious, in the present case this seriousness is augmented by the fact that the Minister has breached the EPAA on more than one occasion. In particular, the second breach took place in circumstances where, as the three previous Hill Top decisions demonstrate, the Minister was on notice of the need to ensure that all clearing was carried out in accordance with the approved plans. In light of the earlier unapproved clearing, it was incumbent upon the Minister to take all precautions necessary to ensure that no further unlawful clearing took place. It is self-evident that this did not occur.

1. Second, exacerbating the gravity of the breaches is the fact that, known to the Minister at the time, the breaches resulted in the unapproved clearing of land with a high conservation value.

1. Third, on each occasion the unapproved and unlawful clearing was, in effect, retrospectively ratified by an approved modification application. While Pt 3A of the EPAA permits both private and public proponents to apply by way of modification application for approval in respect of any previous unlawful development that has been carried out, the persistent nature of the conduct of the Minister suggests that there is utility in publicly exposing and denouncing on behalf of the community the repeated unlawful behaviour which the Minister has engaged in.

1. Further, while I accept that ordinarily a public pronouncement that a breach of the law has occurred can be achieved by the Court making findings in its judgment (see Lani at [25]), the concessions made by the Minister rendered it unnecessary in the earlier Hill Top decisions to fully set out findings by the Court of a sufficiently reprobating character.

1. Fourth, the making of the declarations marks the disapproval of the Court of conduct that Parliament has proscribed. It also serves to discourage others from acting in a similar way and may, therefore, be seen to have a deterrent and educative element. The granting of the declaration may accordingly be seen as advancing the regulatory objects of the EPAA (s 5 of the EPAA and Humane Society v Kyodo Senpaku [2006] FCAFC 116; (2006) 154 FCR 425 at [22]-[27]).

1. Having said this, these remarks should in no way be seen as an endorsement for the use of a declaration of a breach of statute in civil proceedings as akin to, or substitution for, criminal proceedings for breach of environmental statutes ( Lani at [23] and Gedeon v NSW Crime Commission [2008] HCA 43; (2008) 236 CLR 120 at [23]).

1. Fifth, while the Minister submitted that its identity made no difference to whether or not declaratory relief ought to be granted, in the context of the present proceedings I cannot agree. All persons, both public and private, have an obligation to comply with the law and it is certainly not the case that public bodies, unlike private citizens, are under any greater obligation to uphold and observe the law. However, public bodies ought to, in my opinion, lead by example. This has not occurred here.

1. Therefore, where, as in the present case, the Minister has been responsible for multiple breaches of the EPAA resulting in the unapproved clearing of land of high conservation value, in order to achieve the purpose of exposure and denouncement of the unsanctioned conduct, mere public pronouncement in a published judgment alone will not, in my opinion, suffice. For all these reasons, it is appropriate that the Court make the declarations sought.

Orders

1. Consistent with the reasoning above, the Court:

(1) declares that between about 15 October 2010 and 18 October 2010 the Respondent, in breach of s 75D(2) of the EPAA carried out development on Lot 100 Deposited Plan 1088254 at Wattle Ridge Road, Hill Top, New South Wales, that was a project to which Pt 3A of that Act applied, namely, the clearing of land without the approval of the Minister of Planning given under that Part;

(2) declares that between 24 October 2010 and 27 October 2010 the Respondent, in breach of s 75D(2) of the EPAA carried out development on Lot 100 Deposited Plan 1088254 at Wattle Ridge Road, Hill Top, New South Wales, that was a project to which Pt 3A of that Act applied, namely, the clearing of land without the approval of the Minister of Planning given under that Part; and

(3) otherwise dismisses the proceedings.

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Decision last updated: 13 April 2011