In the recent decision of Port Macquarie-Hastings Council v Mansfield  NSWCCA 7 (Mansfield), the NSW Court of Criminal Appeal overturned an earlier decision of the Land and Environment Court in relation to the power of councils to compel production of documents under the former section 119J (now section 9.22) of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act).
Mr Mansfield was accused of carrying out a development that was prohibited under the Local Environmental Plan. After some investigations and before the commencement of the criminal proceedings, Council’s investigation officer, Craig Henderson, issued a number of notices under section 119J (now section 9.22) of the EPA Act. From the documents produced under those notices, Council learned two companies may have further documents relating to the alleged offence and issued a subpoena to each of the two companies after criminal prosecution had commenced.
Mr Mansfield challenged the validity of the two subpoenas in the Land and Environment Court, primarily on the basis that Council must not rely on the information gathered from section 119J notices to issue the subpoena because the section 119J notices were not validly issued in the first place.