Spare v Leichhardt Municipal Council

[2002] NSWSC 412

Reported Decision: 120 LGERA 218

New South Wales

Supreme Court

CITATION:	Spare v Leichhardt Municipal Council [2002] NSWSC 412
FILE NUMBER(S):	SC 10861/02
HEARING DATE(S):	17/6/02
JUDGMENT DATE:	21 June 2002
PARTIES :	David Lloyd Spare (Plaintiff) Leichhardt Municipal Council (Defendant)
JUDGMENT OF:	Bell J at 1

COUNSEL :	Ian Hemmings (Plaintiff) AJJ Thompson (Defendant)
SOLICITORS:	M.E. McMahon & Assoc -Solicitors (Plaintiff) Messrs. Kencalo & Ritchie - Solicitors (Defendant)
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 (NSW) Environmental Planning and Assessment (Savings and Transitional) Regulation 1998 Justices Act 1902
CASES CITED:	Beckwith v R (1976) 12 ALR 333
DECISION:	Leave granted to the plaintiff pursuant to s 104(4) of the Justices Act 1902 to bring the appeal; Appeal dismissed; Plaintiff to pay the defendant's costs as agreed or assessed

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

010861/02 David Lloyd SPARE v Leichhardt Municipal Council

JUDGMENT

1 BELL J: By summons filed on 27 March 2002 the plaintiff appeals from the whole of the decision of Magistrate Still given in the Local Court at Balmain on 1 March 2002.

2 Proceedings were commenced against the plaintiff by the defendant, the Leichhardt Municipal Council (“the Council”), in the Local Court by laying two informations. Each information alleged that the plaintiff erected a building without development consent contrary cl 29(3) of the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998 (“the Savings Regulation”). This Regulation was made pursuant to the Environmental Planning and Assessment Act 1979 (“the EP&A Act”).

3 The informations were laid on 9 November 2001.

4 The conduct, the subject of the informations, is said to have been carried out at various times not later than 8 March 2001.

5 The plaintiff contends that, pursuant to s 56(1) of the Justices Act 1902, a six-month limitation period applies to prosecutions in the Local Court of offences against the EP&A Act and regulations. Magistrate Still held that the limitation period was that provided by s 127(6) of the EP&A Act being one of twelve months. Accordingly, he found that the proceedings were commenced within time. It is this interlocutory determination that is the subject of appeal.

6 The single issue raised by the appeal turns upon the construction of s 127 of the EP&A Act.

7 Section 104(4) of the Justices Act 1902 makes provision for a defendant to appeal to this Court against an interlocutory order made by a magistrate in summary proceedings on a ground that involves a question of law alone. Such an appeal may only be brought with the leave of the Court. In the plaintiff’s submission this is an appropriate case in which to grant leave because the issue to be determined is one of general importance relating to the interpretation of the limitation provisions for the commencement of prosecutions in the Local Court under the EP&A Act. If the plaintiff’s contention is correct it will determine the proceedings as a whole. Mr Thompson, who appeared on behalf of the Council, did not oppose the grant of leave.

8 The Council relied upon s 127(6) of the EP&A Act as specially limiting a twelve-month period within which to bring proceedings in the Local Court for certain offences under the EP&A Act and the regulations thereto. The offences referred to in s 127(6) relate to (a) carrying out development (other than complying development) for which consent is required without obtaining development consent and (b) carrying out complying development without obtaining a complying development certificate. I shall together refer to them as “development consent offences”. It was accepted that an offence contrary to cl 29(3) of the Savings Regulation is a development consent offence.

9 In order to understand the plaintiff’s argument it is necessary to have regard to the terms of Part 6 Division 4 of the EP&A Act, which deal with offences against the Act and the regulations. Mr Hemmings, who appeared on behalf of the plaintiff, placed reliance on sections 125, 126 and 127. Those sections, relevantly, provide:

“ 125 Offences against this Act and the regulations are
(1) Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Director-General, a council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act.
(2) Where any matter or thing is by or under the regulations directed or forbidden to be done, or where the Minister, the Director-General, a council or any other person is authorised by the regulations to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against the regulations.

(3) …

(4) …
126 Penalties
(1) A person guilty of an offence against this Act shall, for every such offence, be liable to the penalty expressly imposed and if no penalty is so imposed to a penalty not exceeding 10,000 penalty units and to a further daily penalty not exceeding 1,000 units.
(2) A person guilty of an offence against the regulations is liable to a penalty not exceeding 1,000 penalty units.
(3) …
127 Proceedings for offences
(1) Proceedings for an offence against this Act may be taken before a Local Court constituted by a Magistrate sitting alone or before the Court in its summary jurisdiction.
(2) Proceedings for an offence against the regulations may be taken before a Local Court constituted by a Magistrate sitting alone.

(3) If proceedings in respect of an offence against this Act are brought in a Local Court constituted by a Magistrate, the maximum monetary penalty that the Court may impose in respect of the offence is, notwithstanding any other provisions of this Act, 1,000 penalty units or the maximum monetary penalty provided by this Act in respect of the offence, which ever is the lesser.

(4) If proceedings in respect of an offence against this Act are brought in the Court in its summary jurisdiction, the Court may impose a penalty not exceeding the maximum penalty provided by this Act in respect of the offence.
(5) Proceedings in the Court in its summary jurisdiction in respect of an offence against this Act may be commenced not later than six months after the offence was alleged to be committed, except as provided by subsection (6).
(6) Proceedings for the following offences may be instituted at any time within the period specified in relation to the offence:
(a) Carrying out development, other than complying development, for which development consent is required without obtaining development consent – twelve months after the offence is alleged to have been committed,
(b) Carrying out complying development without obtaining a complying development certificate – twelve months after the offence is alleged to have been committed.
(7) …
(8) …

10 The “Court” to which reference is made in the provisions set out above is the Land and Environment Court.

11 Mr Hemmings noted that each of the subsections of s 127 (save for subsection (6)) expressly provides that it is dealing with the Act, the regulation, the Local Court or the Court as the case may be. This was said to be consistent with the scheme of Part 6 Division 4, which is to maintain a distinction between offences against the Act and offences against the regulations. Section 127(6) is the only provision that departs from this drafting convention. In Mr Hemming’s submission this is because, properly construed, subsection (6) operates by way of exception to subsection (5) and not as a clause of general operation. The combined effect of ss 127(5) & (6) is said to be that proceedings commenced in respect of development consent offences may be prosecuted in the Land and Environment Court within twelve months of the date of their commission. Whereas proceedings for development consent offences brought in the Local Court are subject to the six-month limitation period provided by s 56(1) of the Justices Act.

12 Section 56(1) of the Justices Act provides:

“An information or complaint may, unless some other time is specially limited by the Act dealing with the matter, be laid or made at any time within six months from the time when the matter of the information or complaint arose.”

13 In support of the construction of s 127(6) for which he contends Mr Hemmings observed that s 127(6) operates to extend penal jurisdiction. He relied on the discussion in Pearce and Geddes, Statutory Interpretation in Australia, 4th edition, at [9.11] for the submission that “a court should always be careful to guard against assuming penal jurisdiction unless it is permitted by statute”.

14 Allied to the above submission, Mr Hemmings pointed to the terms of s 56(1) of the Justices Act. In his submission before this Court would find that some longer time had been “specially limited by the Act dealing with the matter” it would be necessary for that provision to be expressed in clear and unambiguous language.

15 Subsection (6) was inserted into s 127 by the Environmental Planning and Assessment Amendment Act 1997 (“the Amendment Act”). The Amendment Act also introduced the words “except as provided by subsection (6)” into s 127(5). Mr Hemmings submitted that the inclusion of these words in subsection (5) evinced a legislative intention that subsection (6) should be read by way of being an exception to the former only. This construction does not seem to me to flow from reading the section as a whole.

16 Prior to the Amendment Act offences against the Act or the regulations were the subject of a six-month limitation period whether prosecuted in the Local Court or in the Land and Environment Court. The Amendment Act made provision for development consent offences to be the subject of a twelve-month limitation period.

17 Section 56(1) of the Justices Act expressly provides that it is to be read subject to any time limited by the Act dealing with the matter. Upon a view that s 127(6) of the EP&A Act is of general operation, it operates to specially limit the time within which to bring proceedings in the Local Court for development consent offences. The inclusion of the words “except as provided by subsection (6)” in s 127(5) serves to make plain that the limitation period specified therein does not apply with respect to development consent offences. To my mind the insertion of these words in s 127(5) does not support the limited operation of s 127(6) for which the plaintiff contends.

18 Mr Thompson submitted that s 127(6) is a provision that applies generally to development consent offences whether prosecuted in the Local Court or in the Land and Environment Court. In support of this contention he outlined the legislative history of the requirement to obtain consent to the conduct of building works. Section 317 of the Local Government Act 1919 created an offence of doing work in connection with the erection of a building without the approval of the council. Proceedings for offences contrary to s 317 were the subject of a twelve-month limitation period. Section 692 of the Local Government Act 1993 also provided a twelve month limitation period in respect of proceedings for the offence of erecting a building without the approval (or otherwise than in accordance with the approval) of the council. The amendments introduced by the Amendment Act included omitting from the Local Government Act 1993 the provisions dealing with the requirement for obtaining building consents and inserting into the EP&A Act provisions designed, so it was said, to place all the controls necessary to carry out development under the latter Act.

19 In Mr Thompson’s submission it was the intention of the legislature in enacting s 127(6) of the EP&A Act to confer power to commence proceedings in respect of development consent offences within the same time as had been limited for offences of a similar character under the Local Government Act 1993.

20 Mr Hemmings submitted that it was not necessary to have regard to the legislative history in order to ascertain the meaning of s 127(6) but that, in the event I did have regard to it, I would conclude that it permitted the construction for which he contended. I do not consider it necessary to have regard to the legislative history to which I was taken in order to construe the provision.

21 The opening words of s 127(6) provide that “Proceedings for the offences may be instituted at any time within the period specified in relation to the offence”. There is nothing in the terms of the subsection to limit its operation to those development consent offences that are prosecuted in the Land and Environment Court. It would be necessary to read words into the subsection to give it this effect. I see no warrant for doing so.

22 Section 127(6) is concerned with the limitation period within which proceedings for development consent offences may be brought. Development consent offences may be created by the Act or the regulations. Development consent offences against the Act may be prosecuted in the Local Court or the Land and Environment Court.

23 I am not persuaded that the approach to the construction of statutes that enjoins the Court to exercise care in assuming penal jurisdiction assists the plaintiff in this case. The terms of the subsection are unambiguous and do not invite recourse to the principles touching on the interpretation of penal statutes or the associated principles dealing with the assumption of penal jurisdiction. With respect to the former I note the observations of Gibbs J in Beckwith v R (1976) 12 ALR 333 at 339:

“The rule formally accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences: see R v Adams (1935) 53 CLR 563 at 567-8; Craies on Statute Law 7th ed, pp 529-34.”

24 I consider that s 127(6) is expressed in clear and unambiguous terms and provides a twelve-month period in which to institute proceedings for development consent offences whether in the Local Court or the Land and Environment Court.

25 For these reasons I make the following Orders:

1. Grant leave to the plaintiff pursuant to s 104(4) of the Justices Act 1902 to bring the appeal;

2. Decline to make the orders claimed in the summons and dismiss the appeal;

3. The plaintiff is to pay the defendant’s costs as agreed or assessed.

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Last Modified: 06/24/2002