Australia: Council officers investigation powers clarified

Last Updated: 15 March 2019
Article by Mark Evans

Council Officers' powers to investigate clarified following recent decision of Court of Appeal.  

The Court of Appeal has overturned a decision of the Land and Environment Court1 which significantly curtailed the scope of investigation using section 119J (now s.9.22 (EPA Act)) notices requiring information and records.

The Facts

21 months prior to the commencement of proceedings a Council officer issued Mr Mansfield with a notice to answer questions and produce records pursuant to what was then section 119J of the Act (now s.9.22).  The notice required Mr Mansfield to provide details of who carried out illegal work, the dates when the work was undertaken and the plans for the work.

At the time the Council officer issued the notice Council had not yet decided whether to commence criminal proceedings or civil proceedings for demolition or modification of the development.  Mr Mansfield did not object to the notice pursuant to section 119(3) of the Act.  Investigation of the matter continued, including the issue of further notices to various parties.

Council commenced proceedings in the LEC and subsequently issued subpoenas (using some of the information gathered from the s.119J notices) seeking further documents in relation to the illegal work.  Mr Mansfield argued that the notices had been issued for the impermissible purpose of a criminal prosecution and that Council could not use this illegal conduct as a launching pad to then issue subpoenas seeking documents that it had been informed about through that illegality.

Mr Mansfield argued that there is no power under the EPA Act for a Council to prosecute.  Accordingly any notice issued under section 119J is invalid if it is issued with a view to commencing criminal proceedings.

LEC found Council cannot issue subpoenas based on evidence arising out of notice

The LEC agreed, finding that Council had decided to commence criminal proceedings before it issued the notices so the notices were issued for an ultra vires purpose.  The LEC set aside the subpoenas finding that the notices had been issued unlawfully.  The fact that the information and documents produced in response to the notices was later used to frame the subpoenas meant that the subpoenas should be set aside.

In making this finding, the LEC relied heavily on the case of Zhang v Woodgate and Lane Cove Council2("Zhang").  In that case, similar to s.119J the power under s.118BA of the EPA Act entitled Council to issue a notice requiring a person to answer questions to enable a Council "to exercise its functions under this Act."  Mr Zhang argued that s.118BA could be used to require a person to answer questions to enable the Council to perform regulatory or administrative functions under the Act, such as determining whether criminal proceedings for an offence against the Act should be instituted.  However it could not be used to obtain information to enable the Council to exercise prosecutorial functions after criminal proceedings had already been commenced by the Council.  Preston CJ in Zhang found the notices were invalid.

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 LEC found that it was clear to Council that offences might have been committed in developing the subject land and that Council might consider bringing charges for carrying out the development without consent.  When the first notice was issued, the Council officer's position had moved beyond issuing an order under s.121B of the EPA Act or a penalty infringement notice. 

Court of Criminal Appeal sets aside LEC findings

The Council argued, on appeal that the purpose of investigating the possible breach of the Act is not only to discover whether a breach has been committed, but also to determine whether any regulatory action should follow and what it should be.

Critically for Councils the issue is not whether the Council has power to prosecute or not prosecute but what is the source of that power, or, in other words, is criminal prosecution a function of a local Council under the EPA Act?  If not, then its power to issue notices for a criminal prosecution will be curtailed.

The Court of Appeal held that the LEC's decision rested on an artificial distinction.  Given the functions which the EPA Act imposes on councils and the power it grants to investigation officers there could be no question as to the validity of either the notices issued to Mr Mansfield before the criminal proceedings were brought or the subpoena later issued after they were commenced.

The distinction between an investigation conducted by a Council into alleged breaches of the EPA Act for the purpose of a criminal prosecution and investigations of such breaches conducted for the other purposes for which they may be pursued under the EPA Act is not a distinction drawn by the Act.  Nor is it found in the Local Government Act.  To the contrary, express provisions in the EPA Act actually envisage that investigations into breaches of that Act will result in the gathering of information which may be used in subsequent criminal proceedings.

The Court found that the parliament cannot have intended that a s.119J notice, issued during an investigation in order to obtain information about to whom a council should direct a stop work or rectification order, might be ultra vires simply because a criminal prosecution was also contemplated at that time.

The reason for Councils being given wide investigative functions under the EPA Act, given all that it regulated, was obvious.  Long before a Council makes a decision to prosecute a breach of the Act, it will have to investigate whether breaches have occurred and in some cases, deal with them swiftly.  It is only when an investigation has led a Council to bring a criminal prosecution under the Local Government Act, that an investigation officer cannot use s.119J of the Act to issue a notice in order to advance that prosecution, because that is not a function conferred on the Council by the Act.

Using Section 9.22 notices

Part 9 Division 2 of the Act provides broad and useful investigation powers for Council officers.  In particular, notices to produce under section 9.22 and require answers under section 9.23 provide Council with powerful and efficient tools to investigate breaches of the Act.  The decision of the Court of Appeal in Port Macquarie-Hastings Council v Mansfield3 provides important clarity on how Councils can use those enforcement tools.  Use of Council's investigative powers will not be unlawful simply because a prosecution is contemplated at the time the notices are issued.


1Port Macquarie – Hastings Council v Mansfield [2019] NSCCA 7

2(2015) LGERA 1; [2015] NSWLEC 10

3 [2019] NSWCCA 7

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions