Page v Manningham City Council

[2010] VSC 267

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION & PLANNING LIST

S CI 2010 1152

SHAUN PAGE and ANOR	Appellant
v
MANNINGHAM CITY COUNCIL	Respondent

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JUDGE:	WARREN CJ
WHERE HELD:	Melbourne
DATE OF HEARING:	7 May 2010
DATE OF JUDGMENT:	17 June 2010
MEDIUM NEUTRAL CITATION:	[2010] VSC 267

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STATUTORY CONSTRUCTION – appeal from decision of Victorian Civil and Administrative Tribunal on questions of law – planning enforcement regime – planning offence - penalty infringement notice – expiation of offence - enforcement proceedings – whether respondent barred by statute from instituting enforcement proceedings after issuing a penalty infringement notice to appellants – whether offence expiated - meaning of ‘in respect of the offence’ - Planning and Environment Act 1987, ss 114, 119, 126, 130 - Infringements Act 2006, ss 32, 33.

ADMINISTRATIVE ESTOPPEL – whether terms of penalty infringement notice preclude respondent from bringing enforcement proceedings – whether terms of penalty infringement notice required by law.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr G Burns	Adams Maguire Sier
For the Respondent	Mr A Finanzio with Ms N Collingwood	Norton Rose

HER HONOUR:

1. This is an appeal on questions of law arising from a determination and orders of the Victorian Civil and Administrative Tribunal (‘VCAT’).  The orders were made by the Tribunal in the Planning and Environment list on 4 February 2010 and relate to the land located at 27 Hartley Road, Wonga Park (‘the land’). 

1. The appeal concerns the proper construction of the enforcement regime established by the Planning and Environment Act 1987 (‘the P&E Act’) and the Infringements Act 2006 (‘the Infringements Act’), and the effect of the terms of a Penalty Infringement Notice (‘PIN’) issued by the respondent to the appellants on 2 October 2009.

1. The appellants are the registered proprietors of the land.  It is located within the rural conservation zone of the Manningham Planning Scheme (‘the Scheme’) and is subject to ‘environment significance’, ‘significant landscape’ and ‘wildfire management’ overlays.  The land consists of 6.890 hectares of cleared areas and native bush areas.  A dwelling is also situated on the land.    

1. Between April and June 2008, a certain amount of native vegetation was removed or lopped from the land in order to make way for the construction of a swimming pool.[1] The area cleared measured 190 meters in length and 4 to 6 meters in width. On or around 23 July 2008, a meeting took place between the appellant and representatives of the respondent at the Manningham City Council offices. Following the meeting, on 2 October 2008, the respondent issued a PIN to the appellants pursuant to s 130(1) of the P&E Act. The PIN required the payment of a fine but did not stipulate any required additional steps.

   [1]Counsel for the appellants informed the court that the vegetation was removed without the knowledge of the appellants, but did not seek to rely on this fact as a part of its substantive appeal. 

1. The PIN also contained the following endorsement:

If the amount of the penalty is paid and any required additional steps taken within the requisite times the matter will not be brought before the court; however the responsible authority may withdraw and [sic] infringement notice at any time within 28 days after the notice is served by serving a withdrawal notice, and if the authority withdraws the notice the authority may either take no other action, or may take other action including bringing the matter before the court, or seeking an enforcement order in accordance with the Act. (emphasis in original).

1. I will return to the effect of this endorsement (‘the PIN endorsement’) in due course, but for present purposes will note that the only action the PIN required from the appellants was payment of a fine in the amount of $567, which was duly complied with on 27 October 2008. 

1. The respondent then lodged an application for an enforcement order under s 114 of the P&E Act in VCAT on 3 February 2009, seeking orders requiring remediation works to be undertaken by the appellants on the land, and a net gain assessment in accordance with Victoria’s Native Vegetation Framework; A Framework for Action.  

1. At the subsequent hearing before VCAT, the appellants objected to the jurisdiction of the Tribunal to hear and determine the enforcement order on the basis that the PIN had been complied with in full and that, as the notice only imposed a monetary penalty which had been paid in full, the offence had been expiated.       

1. The Tribunal determined to hear the appellants’ strike out application before the substantive enforcement application. At that hearing, two central issues arose. First, whether the respondent was precluded from issuing enforcement proceedings against the appellants either as a result of having issued the PIN, alternatively as a result of the endorsement contained in the PIN, or due to the combined effect of the relevant provisions of the P&E Act and the Infringements Act. Secondly, whether the respondent was otherwise estopped from issuing the enforcement proceedings due to assurances or promises made to the appellants in the negotiations after the incident.

1. The Tribunal made interim orders on 17 November 2009 in relation to the second issue.  The appellants do not seek to appeal those orders and they are not relevant to this appeal.  Further orders were made on 4 February 2010 in relation to the first issue,[2] dismissing the strike out application.    

   [2]see Manningham CC v Page [2010] VCAT 143.

1. The application was refused on the grounds that the statutory provisions in the P&E Act and Infringements Act only go as far as excluding further proceedings against the appellants in the Magistrates Court, and do not preclude the respondents initiating at a later stage other proceedings in a different jurisdiction, including enforcement proceedings in VCAT. The Tribunal made similar observations on the effect of the terms of the PIN, holding that the statutory regime confirmed that the respondent was not prevented form seeking further relief in VCAT notwithstanding the PIN endorsement. The Tribunal Member also referred to the common practice of Councils to take action in relation to an alleged breach in both the Planning and Environment List of VCAT and also the Magistrates Court in relation to an alleged breach of the P&E Act.

1. The Tribunal also considered the purpose of the planning regime established in the P&E Act,[3] as well as the purpose of criminal proceedings as expressed in the Magistrates Court Act 1989,[4] and noted that the aim of planning enforcement proceedings are different from that of criminal proceedings and the use if PINs. The Tribunal found that enforcement proceedings are geared towards achieving the best planning outcome for the land in question whereas PINs sought to punish an offender for a planning offence.

   [3]Planning and Environment Act 1987, s 4.

   [4]Magistrates Court Act 1989, s 1.

1. Pursuant to s 148(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998, this Court granted leave to the appellants on 26 March 2010 to appeal the VCAT determination and orders of 4 February 2010.

1. The appellants raise five questions of law for determination as follows:

1.What is the meaning and effect of section 130(2A) of the Planning and Environment Act 1987?

2.Does section 33(1)(a) of the Penalty Infringement Act 2006 [sic] have any and if so what application to a penalty infringement notice issued by a relevant authority under the Planning and Environment Act 1987?

3.Does compliance with a penalty infringement notice under the Planning and Environment Act 1987 expiate the offence in respect to which the penalty infringement notice was issue and therefore precluded the relevant authority from taking any further action or proceeding in relation to or in respect of the offence?

3A.Did compliance with the penalty infringement notice issued under the Planning and Environment Act 1987 in the present instance, preclude the relevant authority from taking any further action or proceeding in relation to the infringement of the offence?

4.Does the Victorian Civil and Administrative Tribunal have jurisdiction to hear and determine an application for an enforcement order issued by a relevant authority under section 114 of the Planning and Environment Act 1987 in circumstances where the appellants have complied with a penalty infringement notice issued by the relevant authority under section 130 of the Planning and Environment Act 1987 which penalty infringement notice did not require any additional matters to be done to expiate the offence other than the payment of the penalty stated therein? 

1. Each question relies substantially on the provisions of the P&E Act and Infringements Acts. It is therefore necessary, before proceeding to consider the substantive merits of the appeal, to set out in some detail the statutory framework in question.[5]                  

   [5]Unless otherwise indicated, all statutory references are to the P&E Act.

The Statutory Framework

1. The respondent is the ‘responsible authority’ for the administration and enforcement of the scheme under the Act.[6] The relevant provisions of the Act are contained in Division 1 of Part 6, headed ‘Enforcement orders’ and Division 2 of Part 6, headed ‘Offences and Penalties’. The relevant provisions of the Infringements Act are contained in Division 5 of Part 2, headed ‘Expiation and demerit schemes’.

   [6]Planning and Environment Act 1987, s 13.

1. Section 14 of the P&E Act stipulates that the duties of a responsible authority are to administer and enforce the planning scheme. The Act grants the responsible authority and its delegated officers a number of powers for that purpose. In so far as is relevant to the matters before me, where a contravention of the Act has occurred, two enforcement mechanisms are available to a responsible authority.

1. First, s 114 of the Act enables a responsible authority, or any other person, to apply to VCAT for an enforcement order. The section provides as follows:

114 Application for enforcement order

(1) A responsible authority or any person may apply to the Tribunal for an enforcement order against any person specified in subsection (3) if a use or development of land contravenes or has contravened, or, unless prevented by the enforcement order, will contravene this Act, a planning scheme, a condition of a permit or an agreement under section 173.

(3) An enforcement order may be made against one or more of the following persons—

(a) the owner of the land;

(b) the occupier of the land;

(c) any other person who has an interest in the land;

(d) any other person by whom or on whose behalf the use or development was, is being, or is to be carried out.

1. Where VCAT is of the view that an enforcement order is necessary on an application before it, s 119 gives the Tribunal wide powers to direct any person against whom the order is made to do a variety of acts aimed at prevention or remediation of a contravention of the Act or the scheme, including,

(i) to stop the use or development within a specified period;

(ii) not to start the use or development; or

(iii) to maintain a building in accordance with the order; or

(iv) to do specified things within a specified period—

(A) to restore the land as nearly as practicable to its condition immediately before the use or development started or to any condition specified in the order or to any other condition to the satisfaction of the responsible authority, a Minister, public authority, municipal council, referral authority or other person or body specified in the Order; or

(B) to otherwise ensure compliance with this Act, or the planning scheme, permit condition or agreement under section 173.

1. Secondly, the P&E Act contemplates that a responsible authority might wish to issue a planning infringement to a person or persons who have committed an offence under the Act. Section 126 of the Act directs that a person who develops land in contravention of a planning scheme is guilty of an offence as follows:

126 Offence to contravene scheme, permit or agreement

(1) Any person who uses or develops land in contravention of or fails to comply with a planning scheme, or a permit, or an agreement under section 173 is guilty of an offence.

(2) The owner of any land is guilty of an offence if—

(a) the land is used or developed in contravention of a planning scheme, a permit or an agreement under section 173; or

(b) there is any failure to comply with any planning scheme, permit or agreement under section 173 applying to the land.

(3) The occupier of any land, is guilty of an offence if—

(a) the land is used or developed in contravention of a planning scheme, a permit or an agreement under section 173; or

(b) there is any failure to comply with any planning scheme, permit or agreement under section 173 applying to the land.

1. Section 130 grants power to the responsible authority to issue an infringement notice to a person believed to have committed an offence against s 126 in the following terms:

130 Planning infringements

(1) An authorised officer of a responsible authority may serve a planning infringement notice on any person, if the authorised officer has reason to believe that the person has committed an offence against section 126 in an area for which the authority is responsible.

(2) An offence referred to in subsection (1) for which an infringement notice may be served is an infringement offence within the meaning of the Infringements Act 2006.

(2A) In addition to the details required under section 13 of the Infringements Act 2006, the details of the additional steps (if any) required to expiate the offence must be included in an infringement notice served under subsection (1).

(3) The penalty for the purposes of this section for an offence against section 126 is—

(a) in the case of a natural person, 5 penalty units; and

(b) in the case of a body corporate, 10 penalty units.

(4) Additional steps required to expiate an offence may include, but are not limited to, the following—

(a) stopping the development or use of land that constituted the offence;

(b) modifying the development or use of land that constituted the offence;

(c) removing the development that constituted the offence;

(d) acting to prevent or minimise any adverse impact of the development or use of land that constituted the offence;

(e) entering into an agreement under section 173;

(f) doing or omitting to do anything in order to remedy a contravention of a planning scheme, permit or agreement under section 173.

(5) If a planning infringement notice requires additional steps to be taken to expiate an offence and, before the end of the remedy period set out in the notice or, if the responsible authority allows, at any time before the service of a summons in respect of the offence, the person served with the notice informs the responsible authority that those steps have been taken, an authorised officer of the authority must, without delay, find out whether or not those steps have been taken, and serve on the person a notice stating whether or not those steps have been taken.

(6) A statement in a notice under subsection (5) that additional steps have been taken is for all purposes conclusive proof of that fact.

1. The P&E Act and the Infringements Act have an interactive role in a number of respects. The nature of an infringement notice issued by a responsible authority under s 130 of the P&E Act derives its meaning from the Infringements Act. That Act sets out certain requirements and conditions as to the service,[7] form,[8] payment[9] and withdrawal of a penalty notice.[10] 

   [7]Infringements Act 2006, s 12.

   [8]Infringements Act 2006, s 13.

   [9]Infringements Act 2006, s 14-15.

   [10]Infringements Act 2006, s 18.

1. The Infringements Act also contains directions as to the requirements for expiation of an offence:

32 Expiating the offence

(1) Subject to subsection (2) and any other Act, if an infringement notice is not withdrawn and the infringement penalty and any prescribed costs are paid within the period specified in the notice or late payment is accepted in accordance with section 15, the person on whom the notice was served has expiated the offence by that payment.

(2) In the case of an infringement notice involving additional steps, a person has expiated the offence when—

(a) the infringement penalty and any prescribed costs are paid within the period specified in the notice or late payment is accepted in accordance with section 15; and

(b) the additional steps are complied with as required by the Act or other instrument that creates the offence.

(3) An infringement penalty paid under this Part must be applied in the same way as a fine paid under an order of a court made on an offender being convicted or found guilty of the offence to which the infringement penalty relates.

1. Section 33 stipulates the effect of expiation:

33 Effect of expiation

(1) Subject to this Act and any other Act, if a person has expiated an offence under section 32—

(a) no further proceedings may be taken against the person on whom the notice was served in respect of the offence; and

(b) no conviction is to be taken to have been recorded against that person for the offence.

(2) The payment of an infringement penalty by a person is not and must not be taken to be—

(a) an admission of guilt in relation to the offence; or

(b) an admission of liability for the purpose of any civil claim or proceeding arising out of the same occurrence, and the payment does not in any way affect or prejudice any such claim or proceeding.

(3) The payment of an infringement penalty must not be referred to in any report provided to a court for the purpose of determining sentence for any offence.

The grounds of appeal

1. I turn to the grounds of appeal. Despite raising five questions of law and six individual grounds of appeal, the appellants submissions revolve around two fundamental propositions. The first suggests that the proper construction of the P&E Act and the Infringements Act reveals, in the circumstances of this case, that a statutory limitation is placed on the respondent from issuing separate enforcement proceedings in VCAT. The second relates to the legal effect of the PIN endorsement which, it is said, precludes the respondents from seeking further action at VCAT because it infers that no further action would be taken by the respondent once payment of the fine was made.

1. The appellants urged the court to adopt the following statutory analysis. The respondent’s remedial powers under the P&E Act are discretionary. At the time the responsible authority determines that there has been contravention of s 126 of the P&E Act, it chooses which procedure to follow, that is, whether to issue an infringement notice or to pursue enforcement procedures under s 114. In other words, an election is made. In this instance, the respondent chose to issue an infringement notice to the appellants requiring them to pay a fine without specifying any further remedial requirements. By paying the fine, the appellants’ offence is expiated under s 32 of the Infringements Act, thereby prohibiting the respondent from issuing proceedings for enforcement orders in VCAT that seek the same remedy that should have been sought in the PIN. A consequence of that submission is necessarily that the procedure available under s 130, and the specific remedial steps in s 130(4), are the same as what might be achieved under s 114 by way of an enforcement order.

1. Specifically, the appellants relied on the words in s 130 (2A) of the Act, whereby the responsible authority ‘must’ include in an infringement notice the details of the additional steps (if any), and as specified in s 130(4), required to expiate the offence. It was suggested that the wide powers afforded to the responsible authority under s 130(4) impose a mandatory requirement upon a responsible authority to include additional steps if they are to be required.

1. The appellants’ submissions have a number of consequences for the powers of a responsible authority under the P&E Act. First, once a responsible authority exercises its discretion to issue a PIN, it is bound by the provisions of s 130 of the Act and is barred from pursuing other enforcement procedures under the P&E Act. In effect, the exercise of the discretion acts as a definitive statement on how the responsible authority wishes to deal with the contravention in question. Presumably, the appellants were identifying the duality of the relief sought, that is, the enforcement orders sought by the respondent in VCAT are in effect identical to those which could have been included in the PIN as additional steps required to expiate the offence. It was therefore submitted that where the person on whom the PIN is served complies with its requirements, the responsible authority is precluded from invoking all other statutory procedures under the Act in circumstances where the offence has been expiated by compliance with the PIN.

1. Turning to the appellants’ submission relating to the PIN endorsement, the court was invited to draw the inference from the terms of the PIN endorsement that in circumstances where the stipulated penalty is paid, and the notice is not withdrawn in the relevant time limit, the responsible authority would be precluded from seeking an enforcement order under the P&E Act. The appellants referred to the terms of s 33 of the Infringements Act, emphasising that under those provisions, expiation of an offence occurs where payment has been made and any further steps have been complied with, leading to the result that ‘no further proceedings may be taken against the person on whom the notice was served in respect of the offence’.[11]

Is the respondent precluded from bringing enforcement proceedings as a matter of statutory construction?

[11]Infringements Act 2006, s 33(1)(a)

1. Dealing first with the appellants’ statutory submission, at its core, this aspect of the appeal is concerned with the proper interaction between the P&E Act and the Infringements Act. The parties both agreed that there is significant interaction between the two Acts, however disagreed on its precise effect.

1. The task for the court is to construe the applicable legislation in accordance with the relevant principles of statutory construction.  The primary object of that task is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.  The meaning of the provision must be determined by reference to the language of the instrument as a whole.[12]

   [12]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381-382.

1. Turning first to the terms of the P&E Act, it is not entirely clear from the appellants’ submission why the responsible authority might be precluded in the manner suggested. The word ‘must’ in s 130(2A) only takes the appellants so far. The purpose it serves is that if the responsible authority requires further steps in relation to the offence identified in the PIN, then it must be stated in that PIN, as opposed to elsewhere, say for example, in a letter or advice to the offender.

1. It does not follow from the effect of s 130(2A) that a responsible authority is precluded from pursuing alternative enforcement procedures. A manifest contrary intention is required in the legislation. Section 40 of the Interpretation of Legislation Act 1984 directs:

Unless the contrary intention appears, where an Act or subordinate instrument confers a power or imposes a duty, the power may be exercised and the duty shall be performed—

(a) from time to time as occasion requires; and

(b) if conferred or imposed on the holder of an office or position as such, by the person for the time being holding, acting in or performing the duties of the office or position;

1. It is not clear how such an intention is manifest from the terms of the P&E Act to which I was referred by the appellants. I was not directed to any provision having the requisite effect, other than to the words in s 130(2A).

1. Sections 114 and 130 do not limit or qualify the discretion of the authorised officer of the responsible authority. The provisions direct that an authorised officer ‘may’ serve a planning infringement notice or ‘may’ apply to the Tribunal, as the case may be. The power to do so is exercised as a discretion.[13] The language of the provisions affords a discretion on the responsible authority rather than an obligation of definitive election. Furthermore, these provisions do not correlate one with the other. Neither ss 126 nor 130 expressly confine the operation of s114. The limitation proposed by the appellants is inconsistent with the statutory purpose manifested by the legislative provisions themselves. As McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd, if the apparently plain words of a provision are read in light of the mischief which the statute was designed to overcome and of the objectives of the legislation, they may wear a very different appearance.[14] The statutory construction advanced by the appellants is a strict interpretation of the terms of s 130(2A). Such an approach is inconsistent with the language and purpose of the instrument as a whole.

   [13]Interpretation of Legislation Act 1984, s 45(1).

   [14]Isherwood v Butler Pollnow Pty Ltd (1986) 6 NSWLR 363, 388.

1. This is borne out by the structural demarcation of the P&E Act, which draws a distinction between enforcement proceedings and prosecutions. As already observed, Division 1 of Part 6 of the Act is headed ‘Enforcement orders’ while Division 2 of Part 6 is headed ‘Offences and Penalties’. Headings to divisions into which an Act is divided may be used as tools of construction where they are indicative of the underlying scope and purpose of the provisions.[15] 

   [15]Interpretation of Legislation Act1984, s 36 (1); Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594.

1. The history of the specific sections in the P&E Act relating to ‘offences’ also supports this view. It is an accepted principle of statutory construction that courts may consider repealed provisions to assist in determining the scope of unrepealed provisions.[16] Section 122(4) of the P&E Act, repealed in 2000,[17] reveals a number of things about the underlying purpose of the Act. Section 122(4) formed part of the statutory context in which ss 114 and 130 appeared when first enacted and provided:

   [16]R v Lavender (2005) 222 CLR 67, 80 (Gleeson CJ, McHugh, Gummow, Hayne JJ).

   [17]Planning and Environment Act 1987, amended by Planning and Environment (Amendment) Act 2000, s 9.

122. Offences

…

(4) A person must not be convicted of an offence against this Act if the matter constituting the offence is, at the date on which the conviction would, but for this sub-section, be made—

(a) the subject of proceedings under sections 114 to 120 and the proceedings have not been concluded; or

(b) the subject of an order made under section 116, 117 or 120.

1. The section was repealed in order to ‘remove the bar imposed on responsible authorities  prosecuting an offence that is currently the subject of an application for an enforcement order, or an enforcement order which has been issued by [VCAT]’.[18] The effect of the repeal is that a prosecution under s 126 can take place at the same time as enforcement proceedings under s 114. The legislative intention is clear; the underlying purpose of the P&E Act is to draw a distinction between offences and enforcement procedures. A responsible authority remains entitled to bring an application for an enforcement order pursuant to s 114 even in circumstances where criminal prosecution pursuant to s 126 has been dismissed.[19]  As observed by Hollingworth J in RodwellvBuilding Practitioners Board,

[i]t is trite to observe that the same events may have a variety of legal consequences. For example, an act or omission may constitute a criminal offence and also give rise to civil proceedings, such as an action in damages. The same events may also have disciplinary consequences.[20]

[18]Victoria, Parliamentary Debates, Legislative Council, 23 May 2000, 1182 (the Hon. Justin Madden, Minister assisting the Minister for Planning).

[19]see El Alam v City of Northcote [1996] 2 VR 672 (‘El Alam’).

[20]Rodwell v Building Practitioners Board (2009) 21 VR 683, 688 (Hollingworth J).

1. To construe the terms of s 130(2A) in the manner proposed by the appellants would be entirely inconsistent with the purpose of the P&E Act. It would have the effect that only one of two possible courses may be adopted by the responsible authority.

1. The approach also overlooks the fundamental differences between the two proceedings. An offence contained in s 126 is punishable by a court of criminal jurisdiction where a finding beyond reasonable doubt makes a defendant liable to financial penalty. An application for an enforcement order is civil in nature and is not a proceeding of a criminal character seeking punishment for an offence against the P&E Act. Mandie J, as he then was, has observed the different purposes served by enforcement orders and criminal proceedings:

Clearly, a close comparison of the difference between a criminal information for assault and a civil action for damages for assault on the one hand and the difference between criminal charges for contravention of a planning scheme and civil proceedings for an enforcement order in relation to that contravention on the other hand, might yield various distinctions, but I do not think that such a close comparison would be productive. The causes of action are different in each case. In the present case, a consideration of s114-s125 of the Planning Act as to enforcement orders and s126-s132 as to offences demonstrates the differences. Apart from anything else, an enforcement order may bind future owners and occupiers: see s124.[21]

[21]El Alam [1996] 2 VR 672, 681.

1. The remedies available between the two types of proceedings are directed to different purposes. The enforcement order is a civil remedy aimed at rectification of planning conventions. It is not a means of punishing contraventions. Prosecutions under the P&E Act are available for that purpose. In proceedings in respect of an offence in the Magistrates’ Court, no orders requiring remediation may be imposed whereas in proceedings before VCAT for enforcement orders, no punishment may be imposed.

1. On this point, the appellants submitted that the powers of a responsible authority under s 130 are the same, for all intents and purposes, as those in which an enforcement order would result. I reject that submission. That the remedial purposes of the two proceedings is fundamentally different can be observed from the orders requested by the respondent in its enforcement application before VCAT. In its application, the respondent seeks an order in part in the following terms:

1. A Declaration that the Scheme has been breached;

2. That the appellants submit to the responsible authority a ‘Net Gain Assessment and Report’ prepared by a qualified ecological consultant to the satisfaction of the responsible authority within eight weeks of the date of the order.  The Net Gain Assessment and Report must include:

·a site plan (drawn to scale) showing a number of details about the land such as the location and extent of all native vegetation of the land including that estimated to have been removed or destroyed and topographic information.

·a description of the native vegetation on the land which has been removed or destroyed, including the quantity, species, location and size of any medium or large trees and the Ecological Vegetation Class and conservation status of the vegetation.

·a Native Vegetation Offset Plan (‘NCOV’) for the loss of the vegetation prepared in accordance with ‘Victoria’s Native Vegetation – A Framework for Action’, including the following:

- the means of calculating the offsets;

- the areas where native vegetation is to be protected;

- the timing of planting for any revegetation approved as part of the plan;

- the type of offsets to be provided for each location;

- the details of the proposed revegetation including the number and percentage of trees, shrubs and other plants, species mix; and density of planting;

- the measures for annual replanting of any vegetation that falls within ten years of being planted;

- the methods of protection for all vegetation to be secured or planted under the NVOP, including watering regime; and

- the details of existing earthworks, drainage or other works.

3. That within 28 days of approval of the Net Gain Assessment and Report by the responsible authority, the appellants enter into a Section 173 Agreement with the responsible authority to ensure that the cleared area is revegetated, protected and maintained for a period of ten years to the satisfaction of the responsible authority.[22]  

[22]This is a summary of some of the relief sought and does not reflect the precise orders sought.

1. The remedial goal is complex and requires specific and continuous action on the part of the appellants.  Critically, the order, if made by VCAT, and I make no comment on the merits of the enforcement application, requires ongoing supervision by the responsible authority. 

1. In this instance, it appears that the responsible authority has determined to issue a PIN and accept the appellants payment as expiation for the ‘offence’.  It was recognised by all involved that the appellants were co-operative at every step with the authorised officers of the responsible authority.  It appears that for this reason it was unnecessary for the responsible authority to pursue prosecution.  However, from the material made available to me, it was always highly likely that remediation works would be necessary on the land.

1. A PIN is not an appropriate place in which to achieve the planning outcome sought by the respondents.  Had such extra steps been included in the PIN, and the appellants had not complied with those steps, further prosecution in the Magistrates’ Court would not have delivered the planning outcome envisaged in light of the limitations on the remedial powers available in the Magistrates’ Court.          

1. The appellants’ statutory submission with regard to the P&E Act therefore fails.

1. A more specific question for determination then emerges from the appeal questions. Does s 33 of the Infringements Act operate to preclude the responsible authority from pursuing enforcement proceedings? A number of factors indicate that such a limitation does not arise. In essence, each relates to the distinction at law between ‘offences’ on the one hand, which are criminal in nature, and enforcement proceedings on the other, being civil in nature.

1. The legislative history of the interaction between the two Acts is a helpful starting point. Prior to the enactment of the Infringements Act, the P&E Act contained its own provisions for the issuance of infringement notices. When the Infringements Act came into effect, it provided for a new and overarching legislative framework intended to cover the law relating to infringements in its entirety. The intention of the Act was to establish a common process for government agencies to issue and enforce infringement notices, and to replace inconsistent legislation and practice across more than fifty different Acts.[23] The P&E Act was amended by the insertion of s 130(2A) in order to bring it within the purview of the Infringements Act.[24]   

   [23]Victoria, Parliamentary Debates, Legislative Assembly, 16 November 2005, 2186 (the Hon. R Hulls, Attorney-General).

   [24]Planning and Environment Act 1987, amended by Infringements (Consequential and Other Amendments) Act 2006, s 94.

1. The Acts are intended to operate together in a complementary manner. It cannot be said that the Infringements Act is intended to operate in a manner that disregards the intentions of the P&E Act.

1. Turning then to the ‘offence’ at hand, the PIN described the circumstances of the offence in the following way:

You have committed an offence against section 126 of the Planning and Environment Act 1987 by: Contravening clause 42.01-1 of the Manningham City Planning scheme by removing, destroying or lopping an extensive amount of native vegetation on the property of 27 Hartley Road, Wondga Park without an approved planning permit.

1. For s 33(1)(a) of the Infringements Act to act as a bar to further proceedings, it is necessary that the respondent’s enforcement proceeding be ‘in respect of’ the ‘offence’ with which the PIN is concerned. The meaning of these terms must be determined as a matter of statutory construction. In Kingswell v R, the High Court made a number of observations about the nature of the term ‘offence’. Gibbs CJ, Wilson and Dawson JJ held:

The word “offence” has no fixed technical meaning in the law … [but] in the broad sense [refers to] any conduct forbidden by law on pain and punishment … it is the legal definition of the offence which indicates which are its factual ingredients. [25]

[25](1985) 159 CLR 264, 276.

1. In this instance, the elements of the offence are defined in s 126 of the P&E Act. The remedial powers available to the responsible authority with regard to such offences are contained in s 130.

1. The phrase ‘in respect of’ was recently considered in Martino Developments Pty Ltd v John Doughty in which Vickery J observed:

By way of summary of the authorities regarding the application and scope of the phrase ‘in respect of’ it may be concluded that:

(a)        First, that the phrase ‘in respect of’ is of wide scope.

(b) Second, that the width of the phrase does not mean it will provide a connection between any two subject matters. Some subject matters are simply too far removed to be ‘in respect of’ each other  .

(c)Third, the ambit of the words is contained by the context in which they appear. The meaning of the phrase will reflect the statutory context in which the words are employed, the particular usage of the phrase and of the objectives of the particular legislation.[26]

[26]Martino Developments Pty LtdvJohn Doughty [2008] VSC 517, [110].

1. Thus, the meaning of the offence is derived from the statutory context in which the words are employed, the particular usage of the phrase and the objectives of the legislation. Having regard to my observations thus far, it is apparent that the context in which the phrase ‘in respect of’ is to be understood must pay heed to the legislature’s desire to empower the responsible authority to pursue both civil and criminal avenues of enforcement. To my mind, it follows that the legislature did not intend to prohibit further proceedings ‘in respect of’ acts or omissions which constitute the offence, or prohibit further proceedings ‘in respect of’ the contravention which comprises the offence. I consider that proceedings brought pursuant to s 114 of the P&E Act are not proceedings ‘in respect of’ an ‘offence’. They are separate proceedings. This much is recognised by the terms of s 33(2)(b) of the Infringements Act in which the legislature expressly acknowledges the possible co-existence of civil proceedings arising out of the same occurrence. The legislature is to be understood as having expressly excluded further criminal prosecution rather than all other proceedings concerning the same contravention.

1. Taking into account all of these matters, the appellants’ statutory construction submission must be dismissed.        

Does an administrative estoppel arise from the endorsement contained in the Penalty Infringement Notice?

1. The PIN served upon the appellants contained a section in which the respondent was required, in accordance with the provisions of sub-section 130(4) of the P&E Act, to state any extra steps, if any, which it required to be carried out in addition to paying the penalty in order to expiate the offence, and the date upon which those steps must be completed. As previously observed, no extra steps were stated as being required.

1. I have already found that the responsible authority is not precluded from seeking enforcement proceedings as a matter of statutory construction.  The question remains whether the PIN endorsement itself operates to create such a limitation.    

1. The PIN endorsement is not required by statute or regulation.  I was informed by counsel for the respondent, who had made enquiries into the matter, that it is a statement that is utilised by some but not all responsible authorities when issuing PINs.  For ease of reference, I will set out again the text of the PIN endorsement:

If the amount of the penalty is paid and any required additional steps taken within the requisite times the matter will not be brought before the court; however the responsible authority may withdraw and [sic] infringement notice at any time within 28 days after the notice is served by serving a withdrawal notice, and if the authority withdraws the notice the authority may either take no other action, or may take other action including bringing the matter before the court, or seeking an enforcement order in accordance with the Act. (emphasis in original).

1. Considering the terms of the endorsement, it would appear that it purports, in part, to be an explanation of the legal effect of the provisions contained in the Infringements Act. The Act requires that an infringement notice state the due date for the payment of the penalty, which must be at least 28 days after service of the notice, that the notice be in writing and state that the recipient is entitled to have the matter determined by the court. Regulation 8 of the Infringements (Reporting and Prescribed Details and Forms) Regulations 2006 sets out the prescribed details that must be contained in an infringement notice. There are no requirements in the Regulation for an infringement notice to state, for example, that if the penalty is paid, no further action will be taken, or that the notice may be withdrawn at any time within 28 days. Rather, these passages appear to reflect the provisions of s 18(4) of the Infringements Act.

1. The passage in the PIN endorsement on which the appellants fundamentally rely is ‘or seeking an enforcement order in accordance with the Act’.  Having regard to my view as to statutory construction, this aspect of the PIN endorsement is either an incorrect statement of the law or a representation as to the responsible authority’s future intention.

1. Whilst legislation is to be construed consistently with the principles of equity, unless the requisite contrary intention appears,[27] Australian courts have generally not supported the use of estoppel in administrative law.  However, in Attorney-General for NSW v Quin Mason CJ made the following observation:

[I do] not deny the availability of estoppel against the Executive, arising from conduct amounting to a representation, when holding the Executive to its representation does not significantly hinder the exercise of the relevant discretion in the public interest. And, as the public interest necessarily comprehends an element of justice to the individual, one cannot exclude the possibility that the courts might in some situations grant relief on the basis that a refusal to hold the Executive to a representation by means of estoppel will occasion greater harm to the public interest by causing grave injustice to the individual who acted on the representation than any detriment to that interest that will arise from holding the Executive to its representation and thus narrowing the exercise of the discretion.[28] 

[27]see Minister for Lands and Forests v McPherson (1991) 22 NSWLR 687.

[28](1990) 170 CLR 1, 18 (‘Quin).

1. The then Chief Justice’s observation is of considerable guidance for this matter.  The appellants would need to show that by not holding the respondent to the representation in the passage referred to, greater harm would be caused to them than to the interests of the public at large. 

1. It seems to me that to do so would be entirely inconsistent with the public interest sought to be protected by the P&E Act. Section 114 of the Act can be enlivened by ‘any person’.[29]  It is clear that the public interest lies in empowering the community at large to seek remedies to contraventions of planning and environment schemes.  A finding to the contrary would be wholly unsatisfactory. 

   [29]Planning and Environment Act 1987, s 114.

1. Furthermore, it is not readily to be supported that the legislature intended that a proper exercise of the discretion in the public interest was to be impaired. Having regard to this and other considerations, I find that the respondent is not precluded by the PIN endorsement from performing duties conferred upon it by the P&E Act.

1. It is quite clear from the reasoning of Mason CJ in Quin that administrators are not able to fetter the existence of their discretion under a statute by considering themselves bound by a representation.  Mason CJ observed that,

[t]he Executive cannot by representation or promise disable itself from, or hinder itself in, performing a statutory duty or exercising a statutory discretion to be performed or exercised in the public interest, by binding itself not to perform the duty or exercise the discretion in a particular way in advance of the actual performance of the duty or exercise of the power.[30] (emphasis added).      

[30]Quin (1990) 170 CLR 1, 18, Brennan and Dawson JJ agreeing overall; see also El Alam [1996] 2 VR 672.

1. As I have already held that no statutory bar applies to the respondent’s discretion to exercise its rights under s 114, it would follow that the respondent cannot be estopped in advance of the exercise of such power, whether it be discretionary or otherwise, and whether such power is to be exercised in this instance is a matter for VCAT pending the outcome of this appeal. I am supported in my conclusion by a number of authorities concerning administrative estoppel both generally and in the context of planning and environment disputes.[31] As Gummow J observed in Minister for Immigration v Kurtovic,

in a case of a discretion, there is a duty under the statute to exercise a free and unhindered discretion and an estoppel cannot be raised (any more than a contract might be relied upon) to prevent or hinder the exercise of the discretion; the point is that the legislature intends the discretion to be exercised on the basis of a proper understanding of what is required by the statute, and that the repository of the discretion is not to be held to a decision which mistakes or forecloses that understanding.[32]

[31]Re Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 214 CLR 1; Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193, 208; Brickworks v Warringah Corporation (1963) 108 CLR 568, 577, Windeyer J; Shire of Kilmore v Dally [1989] VR 314;

[32](1990) 21 FCR 193, 208.

1. Finally, I would pause to make some remarks about the public interest aspects of the PIN endorsement itself.  The controversial aspects of the PIN endorsement are not legally required by the responsible authority and it has the potential to mislead a PIN recipient. The legal effect of its terms are unclear, and indeed required clarification on appeal in this Court.  Insofar as certain aspects of the PIN endorsement are unnecessary, it may be preferable that responsible authorities remove them in future dealings as a matter of the general public interest.               

1. The appeal is dismissed and the order of the Tribunal of 4 February 2010 is affirmed.  I will make orders accordingly and hear the parties as to costs.