Environmental Protection Act Prosecutions (EPC) & Planning Act Prosecutions

What is not well known about these matters is the scope of the penalties that can be applied. 

The maximum fines that can be imposed on individuals can run into hundreds of thousands of dollars and for companies can run into the many millions.

In addition to that, land-owners or occupiers may be required to restore the land to its pre-developed/improved state as a result of being convicted, whilst shouldering the very hefty costs of doing the same.  Beyond that, company directors can be forced to pay the potentially enormous debts attributed to their company.

But perhaps the serious aspect of these penalties is that for individuals, periods of imprisonment can be imposed.

How are these defended?

These types of charges must be commenced by summonses and accordingly time limits apply within which these must be served on the alleged offending person or company.

A failure to do so within that time frame is fatal to the continuation of the prosecution regardless of whether or not an offence can be demonstrated.

A good example is the case of De Bray v Cohen; Macefield Pty Ltd v Cohen [2008] QDC 275 in which I was involved at first instance.

In that case the land-owner was summonsed by a regulatory officer from the Gold Coast City Council for damaging specific types of vegetation.

It was immediately apparent when the summons was reviewed against the evidence behind it, that it was presented outside the time limited provided for the commencement of a prosecution.  Despite this problem being raised at court, the presiding Magistrate ignored it and convicted the clients.

The case was then successfully appealed in the District Court by arguing the very same point.  The result of that appeal saw each summons dismissed, and the land-owners acquitted.

This case is an example of how a ‘procedural’ or ‘technical’ defence should always be considered because it might just allow for the dismissal of a potentially otherwise unwinnable case.  I am always available to assist with matters like this if needed.

How can such enormous penalties be mitigated?

Identification of the actual limit of the land-owners liability is the real key to reducing the penalty which will flow from any conviction.

In a recent case in which I was involved known as Gold Coast City Council v redacted, QMC, unreported decision delivered 13th March 2024, the landowners were charged with breaching a re-vegetation order.

Given that some of the landowners were corporate entities the maximum penalties ran into millions of dollars. But in this matter, it was clear that the land-owners were not supported properly by the experts hired to assist in returning the land to the state that had been ordered.

Delays, inaccurate measurements, and communication breakdowns between those parties meant that no matter what the land-owners to ensure compliance, their success was inextricably linked to proper performance by the experts they had hired.

When the experts failed, so did the landowners.  And as this case demonstrates, that set the tone for the very minor penalties imposed.

Contact an Experienced Defence Lawyer

These are just two examples of environmental/planning prosecutions were effectively dealt with my approaching them in a less than formulaic manner.

Of course, I am only too pleased to offer my assistance to anyone charged with such matters.

Contact Michael McMillan on (07) 5619 6860 or 0409 273 430 for expert legal advice and representation in court.