Inner West Council v Saad

[2020] NSWLEC 116

Land and Environment Court

New South Wales

Medium Neutral Citation:

Inner West Council v Saad [2020] NSWLEC 116

Hearing dates:

20 July 2020

Date of orders:

20 July 2020

Decision date:

20 July 2020

Jurisdiction:

Class 5

Before:

Preston CJ

Decision:

See para [25]

Catchwords:

COSTS – criminal proceedings – withdrawal of summons by prosecutor – legislative amendment to no longer make statutory breach an offence – defendant application for costs – costs not to be awarded against prosecutor except in certain circumstances – whether legislative amendment an exceptional circumstance “relating to the conduct of proceedings by the prosecutor” – costs not ordered

Legislation Cited:

Criminal Procedure Act 1986 s 257D

Environmental Planning and Assessment Act 1979 ss 109H, 125, 9.51, 9.52, 9.53, 9.54

Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 cl 18

Category:

Costs

Parties:

Inner West Council (Prosecutor)
Steven Saad (Defendant)

Representation:

Counsel:
Mr James Johnson (Prosecutor)
Mr Joe Nasr (solicitor) (Defendant)

Solicitors:
Inner West Council (Prosecutor)
Jeresyn Legal (Defendant)

File Number(s):

2019/382010 & 2019/382045

Publication restriction:

Nil

Judgment

1. The prosecutor, Inner West Council (Council), brought proceedings against the defendant, Mr Steven Saad, for a breach of the former s 109H(2) of the Environmental Planning and Assessment Act (the Act), that he had issued an occupation certificate at a time when preconditions to the issue of the certificate that were specified in a development consent had not been met.

2. Section 109H(2) was contained in Pt 4A of the Act. The Act was amended in 2018 quite extensively, however, the provisions of Pt 4A of the Act were continued in force for a period of time. Relevantly, they continued in force through 2018.

3. The conduct of the defendant of issuing an occupation certificate at a time when preconditions to the issue of the certificate that were specified in a development consent had not been met, occurred in the period of April to July 2018.

4. At that time, the provisions of Pt 4A were still in force, having continued to be in force by cl 18 of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017.

5. The defendant pleaded guilty to having committed an offence by breaching s 109H(2) by issuing an occupation certificate when preconditions to the issue of the certificate specified in the development consent had not been met.

6. There were two occasions in which this was done and two criminal proceedings were brought against the defendant. He has pleaded guilty to both of those charges.

7. The matter came on for a sentence hearing today. At the outset, the prosecutor identified what it considered to be a defect in each summons. There was no doubt that, by the guilty plea of the defendant, the defendant had breached s 109H(2) in Pt 4A, which had been continued in force. The question was whether a breach of that provision was an offence against the Act.

8. The former s 125 of the Act caused a person who had breached a provision of the Act to have committed an offence. However, when the Act was amended in March 2018, s 125 of the Act was repealed. It was replaced by new provisions in ss 9.51-9.54 of the Act, which deal with offences against the Act and the bringing of proceedings for offences against the Act.

9. However, the language of s 9.51 differs from the language of the former s 125 of the Act. Under the former provision, a breach of the Act became an offence against the Act. Under the current s 9.51, an offence against the Act is only committed if the provision of the Act which is breached nominates a Tier 1, Tier 2 or Tier 3 maximum penalty at the end of the particular provision.

10. The provisions of the former Pt 4A of the Act, including s 109H, did not contain this new style of specifying a Tier 1, Tier 2 or Tier 3 penalty at the end of the provision. That style was not introduced until the Act was amended in March 2018.

11. Accordingly, the prosecutor raised concern that, although there was no doubt a breach of s 109H in the former Pt 4A of the Act had occurred, it did not become an offence by s 9.51 of the Act. It did not also become an offence by s 125 because when the defendant breached 109H in the period April to July 2018 s 125 of the Act had already been repealed on 1 March 2018.

12. There was therefore a risk that there was a lacuna in the offence provisions. There still could be a breach of the provisions of Pt 4A but it did not necessarily become an offence against the Act. Neither the repealed s 125 of the Act nor the current s 9.51 could make it an offence because of the particular way in which s 9.51 is drafted.

13. In these circumstances, the prosecutor sought to withdraw each of the summons against the defendant. I have made an order noting that the prosecutor has withdrawn each of the matters initiated by the summons filed against the defendant.

14. The defendant now seeks an order for costs. As a general rule, costs are not to be awarded in favour of an accused person unless the Court is satisfied as to one or more of the circumstances in s 257D(1) of the Criminal Procedure Act 1986. The only circumstance upon which the defendant relies is that in para (d), which provides:

“that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award professional costs”.

15. The defendant says that the exceptional circumstance is the fact that the prosecutor brought these criminal proceedings against the defendant in circumstances where there was no offence against the Act. The reason the defendant says that there was no offence against the Act was the reason I have given above, being the concern that although there was a breach of the Act by the defendant in issuing an occupation certificate contrary to s 109H of the Act, that breach of the Act was not criminalised by either the repealed s 125 or the new s 9.51 of the Act.

16. The prosecutor accepts that that concern may be an exceptional circumstance, but it is not an exceptional circumstance “relating to the conduct of the proceedings by the prosecutor”. There is nothing about the conduct of the proceedings by the prosecutor that has caused that circumstance; rather it is a lacuna caused by the repeal of the former provisions and the enactment of the new provisions of the Act.

17. I do not consider that the circumstance in s 257D(1)(d) is satisfied or, even if it is, that it would be just and reasonable to award professional costs.

18. The point fairly raised by the prosecutor on the sentence hearing was of its own initiative. The defendant did not identify that there was this potential lacuna in the transition from the old Act to the new Act. But for the prosecutor raising it the sentence hearing would have proceeded and the defendant would have been sentenced for its undoubted breach of s 109H of the Act.

19. If there is this lacuna, it is a lacuna created by Parliament. Parliament, through the transitional provisions, allowed for the continued operation of Pt 4A, which included s 109H of the Act. That created the obligation not to issue an occupation certificate unless the preconditions in a development consent had been satisfied.

20. There was no doubt that that obligation continued to be in force. There is no doubt that the defendant breached that statutory provision, as shown by his plea of guilty admitting the essential elements of the offence. The difficulty arises not from the defendant breaching that statutory provision but rather from parliament failing to consider what would be the consequence of a breach.

21. Under the former provisions, a breach of s 109H became an offence by dint of s 125 of the Act. No doubt parliament thought that when s 125 was replaced by s 9.51 there would be a continuation of criminalising a breach of the provisions of Pt 4A, including s 109H.

22. Unfortunately, perhaps because there was a change in drafting style between s 125 and s 9.51, a breach of the provisions of Pt 4A, which were continued in force, did not become an offence. That had nothing to do with the prosecutor.

23. In these circumstances, I do not consider that it can be said to be a circumstance relating to the conduct of the proceedings by the prosecutor.

24. In any event, however, I do not consider that it would be just and reasonable to award professional costs in favour of the defendant, having regard to the nature of the problem that the prosecutor has identified and I have accepted, and that justified the prosecutor withdrawing the summonses in this case.

25. In these circumstances, I decline to make an order for costs under s 257D against the prosecutor and in favour of the defendant.

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Decision last updated: 17 August 2020