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February 2015 – Court finds EP&A Act “Notice to Answer Questions” invalid

Chief Judge Justice Preston of the Land and Environment Court (L&E Court) in Zhang v Woodgate and Lane Cove Council [2015] NSWLEC 10 (the Zhang case) has held that a “Notice to attend a place to answer question” was invalid because it was not issued “to enable the council concerned to exercise its functions under this Act”.


Mr Zhang was granted development consent for alterations and additions to a dwelling house (the Consent) by Land Cove Council (the Council). The Council alleges that Mr Zhang over-excavated land contrary to the Consent. Mr Woodgate, a building surveyor employed by the Council, commenced criminal proceedings in the Local Court against Mr Zhang for an offence against s125(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) for carrying out development otherwise than in accordance with a development consent in contravention of s76A(1)(b) of the EP&A Act.

Mr Woodgate subsequently issued a written notice under s118BA of the EP&A Act (the Notice) to the author of two statements of environmental effects relating to applications to modify the Consent, requiring him to attend to attend a place to answer questions.

Mr Zhang brought judicial review proceedings in L&E Court arguing that the Notice was invalid.


Section 118BA provides as follows:

118BA   Power of authorised persons to require answers and record evidence

(1)  A person authorised to enter premises under this Division (an authorised person) may require an accredited certifier, a person carrying out building work or subdivision work or any other person whom the authorised person suspects on reasonable grounds to have knowledge of matters in respect of which information is reasonably required to enable the council concerned to exercise its functions under this Act to answer questions in relation to those matters. [emphasis added]

Preston CJ found that the Notice was issued to require the recipient to answer questions in relation to the subject of, and in aid of, the pending criminal proceedings in the Local Court, that is, to enable the Council to exercise its function to prosecute for an offence against the EP&A Act.

After examining the legislative framework, the Court agreed that the prosecution of an offence against the EP&A Act is not a function of the Council under the EP&A Act. The reasoning is summarised as follows:

  • The right to institute criminal proceedings and the manner in which criminal proceedings are to be instituted are conferred and prescribed by the Criminal Procedure Act 1986 and the Local Government Act 1993 (LG Act).
  • Section 125 of the EP&A Act creates the offences for contraventions of the Act and Regulation and s127 specifies that proceedings for an offence can be brought in the Local Court or the L&E Court however is silent as to who may institute those proceedings.
  • Therefore the right to institute a prosecution for an offence against an EP&A Act is conferred by the common informer provision in s14, as follows:

A prosecution or proceeding in respect of any offence under an Act may be instituted by any person unless the right to institute the prosecution or proceeding is expressly conferred by that Act on a specified person or class of persons.

  • However, section 14 of the Criminal Procedures Act only confers a right, not a power. The power to prosecute for an offence against the EP&A Act is found in the LG Act.
  • The power of a council to institute proceedings for a prosecution under the EP&A Act is conferred indirectly either because:
    • the power is supplemental or incidental to, or consequential on, the exercise of the functions conferred on the Council by or under the LG Act or any other Act including the EP&A Act (s23); or
    • it is necessary for, or incidental to the exercise of a council’s functions under the LG At or any other Act including the EP&A Act (s50(1)(e) of the Interpretation Act which power is applied by s22 of the LG Act).

The Court concluded (at 69) as follows:

The upshot is that the function (the power) of a council to prosecute for an offence against the EPA Act or the regulations is not conferred by the EPA Act but rather by the Local Government Act. The consequence is that the power under s 118BA of the EPA Act cannot be used to issue a notice to obtain information to enable a council to exercise its function to prosecute for an offence against the EPA Act because that function is not a function under the EPA Act.

The Court therefore found that the Notice had been issued ultra vires and was invalid.

The Court also found the Notice to be invalid because it was defective by not “identifying the matter in relation to which the person is required to answer questions”. The Notice purported to identify the matter as being “the over excavation of 8 Haughton Street Lindley Point”. However the reference point for “over excavation” (not excavation), which was presumably the Consent, should have been stated in the Notice so as to be sufficiently clear and certain in order for it to be valid.

Mr Zhang also argued that the Notice amounted to a contempt of court but the Court did not uphold this line of argument.


While we do not disagree with the reasoning of CJ Preston, it seems incongruous and contrary to legislative intent that a council has the function under the EP&A Act of civilly enforcing the EP&A Act (section 123 clearly gives power to institute proceedings to “any person” including a council) and criminally enforcing the EP&A Act by means of a penalty notice (s127A clearly gives power to an authorised person) but not to criminally enforce the EP&A Act by instituting a prosecution.

One of the consequences of the Zhang case, in our view, is that an authorised officer would not be restricted from issuing a Notice under s118BA in the context of class 4 proceedings because the institution of such proceedings are a function of councils under the EP&A Act (not the LG Act).

Unlike s118BA of the EP&A Act the subject of the Zhang case, the power for a council to authorise a person to enter premises (s118A) and the inspection and investigation powers of an authorised person (s118B) are not specified to only apply to a council’s functions under the EP&A Act. Sections 118A and 118B simply provide that these powers are to be exercised “for the purpose of enabling a council to exercise the council’s functions”. Accordingly, it is arguable that an authorised officer could carry out an inspection, including take photos and collect samples for the purposes of collecting evidence for use in a prosecution under the EP&A Act. But the authorised officer could not require a person to answer questions in connection with a prosecution. This again seems a bizarre outcome.

This situation however will not continue once the new enforcement powers under the EP&A Amendment Act (considered above) come into force. The powers of an investigation officer to do things at premises and to issue a notice requiring a person to furnish information or records or to answer questions may only be exercised “in connection with an investigative purpose”. The term “Investigative purpose” is defined and refers to the purpose of “enabling a council to exercise its functions under this Act”.

Note: This information is not to be relied upon as legal advice.

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