Can I see the notes?…..issues raised by enforcement proceedings.

In the recent case of Wilson v Harrison [2012] VSC 404, the Supreme Court of Victoria has considered an application by a Defendant to inspect notes taken by a “Prosecutor”, of a conversation with a potential witness. The proceeding involves an allegation that the Defendants failed to obtain building permits.

The case raises interesting questions with respect to the duties owed by prosecutors when acting on behalf of local councils. The case concerns matters commonly confronted by local council enforcement officers, and their legal advisers, when obtaining witness statements from members of the community. The Court did not need to decide the ultimate question of whether notes taken by prosectors are privileged. However, we are all on notice that this issue may arise when prosecuting and defending these matters. I recommend reading the judgement.

Applications for contempt of Tribunal

I have recently had reason to read the case of Banyule CC v Tomasevic [2011] VCAT 2377, decided in December 2011. This is a case which deals with an application for contempt of the Tribunal for non-compliance with an enforcement order made by the Tribunal.

The case is interesting for practitioners in this jurisdiction who are often asked by clients “what happens if I don’t comply with an enforcement order“.

Tomasevic clearly sets out the matters that must be established to prove contempt. The case confirms that VCAT retains a discretion to dismiss an application for contempt even if a contempt is technically made out. A link to the case can be found here.

Strict Liability for Native Vegetation Removal

Section 126(2) of the Planning and Environment Act (“the Act”), makes it an offence for an owner of land to breach a Planning Scheme,  planning permit or a section 173 Agreement.

In DC Consolidated Investments Pty Ltd v Maroondah City Council [2011] VSC 634, the Supreme Court has considered section 126(2) of the Act. The question on appeal was whether mens rea is an element of an offence under section 126(2) of the Act. In this case, could the owner of land be liable for a criminal offence when it did not know of the commission of the offence.

The conduct in question was the destruction of native trees in breach of the Maroondah Planning Scheme and clauses in the Scheme which protect native vegetation.

In delivering its judgment and holding that mens rea is not an element of the offence the Supreme Court states:

In summary, the language and statutory context of the section support this view; there is an absence of language in s 126 suggesting the contrary; the subject matter of the statute is the regulation of land use in the public interest, including the conservation of native vegetation and the maintenance of ecological processes and genetic diversity; that subject matter is properly characterisable as regulatory and involving matters of public interest of a kind in which statutory offences have been recognised which do not require proof of mens rea; the imposition of liability without proof of mens rea will directly respond to difficulties of proof otherwise inherent in effective enforcement of the planning scheme, will impose a burden upon owners in circumstances where owners ordinarily have a capacity to manage what occurs on their land, and will have a general deterrent effect; and, lastly, neither the gravity of the offence, nor the penalty applicable, support the view that Parliament intended mens rea be a necessary element of the offence. [34]

As we enter the holiday season when people will have some spare time on their hands, the case is a reminder of the care that must be taken before embarking on native vegetation removal. Clause 52.17 of the Maroondah Planning Scheme, which protects native vegetation is present in most Planning Schemes and therefore applies throughout most of Victoria. It is important to ensure that the correct advice is obtained before undertaking native vegetation removal, relying on a contractor to get it right, will not necessarily be a good defence.

Existing Use Rights

In Yarra CC v Cassar [2011] VCAT 1759, the Tribunal has recently considered land that is subject to existing use rights and a planning permit. The Respondent operated a car repair business from inner city premises that had been used for that purpose since the late 1960’s. A permit had been issued to an earlier operator in 1974. The Respondent commenced operating the business in 1976.  In 1983 the Respondent had applied for a planning permit.

The 1983 permit contained  Condition 1 requiring endorsed plans, as well conditions commonly found in permits for industrial use including, requirement for parking bays and that the use of the site was not to injure or prejudice local amenity. No plans were ever presented to Council for endorsement.

The 1983 Permit also contained the following condition.

  • 14.No vehicles under control of the operator under this permit or his staff shall be parked in the streets nearby.
Evidence was given on behalf of the Respondent that the premises had been operated in the same manner since 1976, this included parking cars off the subject site on 2 streets. In its reasons for decision the Tribunal states:

The subject land has existing use rights. Permits were granted for the use of the land firstly in 1974 and secondly in 1983. Under the provision of the current zoning of the land as ‘mixed use’ the use being conducted on the land would require a permit, as permits were previously issued under the former provisions of the planning scheme pursuant to clause 63.05 a use in Section 2 of a zone for which an existing use right is established may continue provided ‘any condition or restriction to which the use was subject continues to be met. This includes any implied restriction on the extent of the land subject to the existing use right or the extent of activities within the use’. [21]

The Tribunal concludes further that

Whilst the use of the land may have existing use rights attached to it to operate as a motor repair station and panel beating workshop those rights do not extend beyond the perimeter of the subject land and certainly do not extend into the street, which is under the care and control of the local Council. [23]

The Tribunal made an enforcement order in the terms of condition 14 requiring the Respondent to cease parking in nearby streets. The case is an interesting example of the parametres of existing use rights. In this instance despite the Respondent establishing existing use rights, an enforcement order was still made. Existing use rights need to be carefully assessed so as to determine the breadth of the use, they can be said to protect.