Prosecuting planning and environment offences is often an option of last resort for many local governments, given the costs and human resources associated with successfully running a prosecution. However, there are certainly circumstances in which the penalties and “deterrence factors” offered by a Penalty Infringement Notice (“PIN”) or other enforcement step is not sufficient, often having regard to the nature or gravity of the offence.
A recent District Court appeal decision, Murn v Gynther  QDC 26, offers some insight into how Courts are likely to consider sentencing in the context of these offences, and might give some local governments pause for thought about the cost-versus-benefit of instituting a prosecution, as opposed to taking other enforcement steps.
Gynther is a District Court appeal decision, handed down on 25 February 2022, following a sentence in the Caboolture Magistrates Court.
The prosecution was instituted by the Department of Resources in respect of two counts of carrying out assessable development without a permit, under section 163 of the Planning Act 2016.
The development involved the creation of a causeway across a tidal drain using rocks, in order to improve access for contractors who were building a shed on Mr Gynther’s land. The causeway was not completed, and Mr Gynther ceased work after being directed to do so by State inspectors.
Mr Gynther pleaded guilty to the offences in the Magistrates Court, and a total fine of $7,500 was imposed, with no conviction recorded.
The Department sought that the Magistrate make an enforcement order under section 176 of the Planning Act to restore the land to its pre-development condition, but that order was not made by the Magistrates Court.
The Department (via its delegate Mr Murn) appealed the Magistrates Court’s decision on the basis that the penalty was manifestly inadequate, and sought a penalty in the range of $20,000 - $30,000, as well as the enforcement order.
The District Court disagreed, and upheld the original penalty.
A key aspect of the Department’s concern about the penalty the Magistrate applied was that the penalty was only 28% of the application fee. In other words, if an important factor in these sorts of matters is deterrence, how would a developer be deterred by an outcome where the fine in a prosecution would be less than the cost of following the process?
The Department also considered that the Magistrate should have applied their discretion to make an enforcement order requiring the restoration of the land.
In dismissing the appeal, the District Court considered:
- Other precedents for penalties in this instance, including a $40,000 fine recently issued in a much more serious case of offending against section 163 of the Planning Act;
- Mr Gynther’s cooperative attitude, early guilty plea, age, and other mitigating factors;
- The fact that the development was not completed, limiting the relevance of the argument about the fine being only a small proportion of the application fee;
- In relation to the enforcement order, that any restoration would have minimal overall effect. While the causeway did block the natural movement of fish, the removal of the causeway would permit fish to move only a further 50 metres down the drain, until they encountered a sandbank. The Court also considered that it might more readily make an enforcement order of that nature where the developer derives some commercial benefit that they should not be permitted to retain, which was not considered to be the case here. Finally, the Court considered the cost of restoration – about $90,000 – and the burden that would impose on Mr Gynther, relative to the “apparently marginal difference to the environment”.
The Court also considered the relatively narrow grounds upon which an appeal can successfully challenge a decision of a Magistrate at first instance in exercising discretions about penalties. To be successful, an appellant must demonstrate that the Magistrate at first instance exercised their discretion in an “impermissible way”.
Local governments, and particularly smaller councils that are not well resourced for enforcement litigation, can be reluctant to take prosecution action for these types of offences, given the relatively high cost of doing so.
However, prosecutions are often started in order to achieve a “general deterrence factor”, and to demonstrate the local government’s seriousness in going to some cost to deal with issues that council perceives to be serious and of importance to the community.
The risk is that this overall objective may not be achieved by the proceeding, with potentially tens of thousands of dollars in both internal and external costs spent in the process.
In fact, the prosecution can have the opposite effect, if the end outcome is one that the local government considers has no material deterrence factor at all.
These sorts of lessons can often encourage local governments to develop different strategies for achieving enforcement outcomes in their communities, whether for planning offences, offences against the Environmental Protection Act 1994, local laws offences or everything else in between. A robust overall community-wide enforcement strategy – from education programs, a careful informal warning process and issuing PINs and compliance notices – can help achieve good enforcement outcomes and at the same time avoid costly prosecutions, which remain options of last resort for many authorities.
However, it can sometimes be the case that despite the best laid plans, a prosecution is the only way of achieving deterrence and compliance.
Preston Law assists local governments with developing enforcement strategies and, where the need arises, taking action in the Magistrates Court and Planning and Environment Court. If you have any queries please contact our team on 07 4052 0717 or firstname.lastname@example.org.