A case to answer? Instituting civil enforcement proceedings

In the recent decision of City of Whyalla v Winders [2024] SAERDC 20, the Environment, Resources and Development Court emphasised the need to ensure that civil enforcement proceedings brought under section 214 of the Planning, Development and Infrastructure Act 2016 (SA) (Act) are well-founded. That was said to be particularly the case in circumstances where land is jointly owned and there is doubt about whether both (or all) owners are aware of the relevant breach.

Background

In July 2023, the City of Whyalla (Council) applied to the Court to bring civil enforcement proceedings pursuant to section 214 of the Act against Mr Winders and Mrs Winders, the registered proprietors as joint tenants of the land at 33-35 Norton Street, Whyalla (Land).

The Council alleged in those proceedings that Mr and Mrs Winders had breached the Act by unlawfully undertaking development in the nature of a change in the use of the Land (to include a junkyard use).

In August 2023, the Court granted permission to the Council to serve a summons upon each of Mr and Mrs Winders, following which Mr Winders filed a notice of acting. However, despite being personally served with the proceedings, Mrs Winders did not file a notice of acting and did not participate in the proceedings.

Through its solicitors (Norman Waterhouse was not involved), the Council subsequently sought to discontinue the proceedings against Mrs Winders and to remove her as a party prior to hearing.

While the Council was ultimately successful in obtaining orders against Mr Winders, its initial targeting of Mrs Winders did not avoid the Court’s scrutiny.

The case against Mrs Winders

Although Mr and Mrs Winders remained the registered proprietors of the Land, they had been separated for some time prior to the proceedings and, since about 2011, Mrs Winders had not resided at the property.

The Court held that it did not necessarily follow that merely because Mrs Winders was one of the owners of the Land, that she had undertaken development within the meaning of the Act, finding that:

… an owner in absentia such as a landlord may have no knowledge that the person(s) in occupation is undertaking or has undertaken acts and activities that constitute a breach of the Act. Absent any knowledge of the acts and activities being undertaken on the land, it would not necessarily follow that in addition to those in occupation, the landlord has also breached the Act. The situation may be different if a landlord became aware that the Act was being breached by those in occupation and the landlord had the power to direct those in occupation to cease the alleged unlawful acts and activities and did not do so.

The Court advised that it would have been prudent for Council’s authorised officers to have undertaken investigations regarding Mrs Winders’ involvement in the alleged breach of the Act, in view of her lack of involvement in the communications concerning the Land in the three and a half years prior to the commencement of the proceedings. The Court further stated that:

Before commencing civil enforcement proceedings against a person alleging a breach of the Act, a designated authority such as a council ought to be satisfied that the person has undertaken development, as that term is understood in the Act, without approval. A designated authority ought to have obtained sufficient evidence to establish this is so, to the requisite standard, before commencing legal proceedings against a person.

The Court also cautioned that had Mrs Winders attended the hearing (so as to prove that she was not involved in the relevant breach) the Council may have faced an adverse costs order.

Take away message

As an enforcement authority, councils are not entitled to assume that an owner of land is necessarily aware that an unlawful activity or development is taking place on the land. Land owners are not always aware of everything that is occurring on land, particularly where there are multiple owners of land or where the land is leased or tenanted to a third party.

Authorised officers are given broad investigative powers under the Act.

Where a council is alleging that a person has breached the Act (either in civil or criminal proceedings), it is incumbent on the council to exercise those powers so as to satisfy itself – to the requisite standard of proof – that the person is aware of the breach and has the capacity to stop the breach from continuing.

The Court expects that councils will conduct themselves as a model litigant and a failure to do so may expose a council to criticism and/or an adverse costs order.

Should you have any questions or for more specific information on any of the material contained in this article please contact Peter Psaltis on +61 8210 1297 or ppsaltis@normans.com.au or Stephan Koefer on +61 8217 1368 or skoefer@normans.com.au.