Are regulatory bodies in charge of regulating what you CAN do, or what you CAN'T do?

Question

Or to put it a slightly different way, If I ask a regulator if I can or can't do something, and they're unable or un-willing to give a definitive answer is it ok to adopt a default position of 'I'll assume it's lawful unless you tell me otherwise?'

Background - I've recently been trying it to find out if I'm (legally) allowed to do some work on an item of equipment. The work is governed by a regulatory body set up by the UK Government, the work I want to do seems to occupy a legal 'grey area' and despite some helpful conversations I'm unable to get the regulator to give a firm commitment either way.

In the absence of any evidence to the contrary, can I just assume that what I want to do is legal?

I guess the best analogy is this, if I ask a parking warden "is it ok to park my car here?" and their response is "err... I'm not sure" then can I assume I can, or can't park there?

Having spoken to the regulators what I don't want to happen is for me to do the work, and then the regulator tell me I wasn't allowed to do it and they're going to prosecute!

Answer 1

canada

Regulators

Are regulatory bodies in charge of regulating what you CAN do, or what you CAN'T do?

Regulators can work in both ways.

Sometimes a statute will prohibit an activity unless the regulator licences you.

Sometimes a statute will outright prohibit an activity and leave the regulator to inspect, investigate, and enforce.

Sometimes a statute will delegate authority to a regulator to alter what is prohibited (for example, by allowing the regulator to update a schedule of protected species, or prohibited activities, etc.)

Officially induced error

if I ask a parking warden "is it ok to park my car here?" and their response is "err... I'm not sure" then can I assume I can, or can't park there?

No. Such an equivocal answer does not rise to the level that could support a defence of officially induced error. See R. v. Jorgensen, [1995] 4 S.C.R. 55.

There must be advice from an appropriate official representing that the activity is not prohibited, and the accused must also show that their reliance on that advice was reasonable in all the circumstances.

It is insufficient for an accused who wishes to benefit from this excuse to simply have assumed that her conduct was permissible.

Answer 2

It depends

united-statesnew-jersey

I will give you some examples from engineering land development to illustrate what I mean.

Regulations state what you CAN do

So a lot of zoning ordinances state explicitly what a parcel of land in that zone can be used for. For example, in the City of Camden's zoning code explicitly states what you can do in the R-2 zone (§870-52):

Principal Uses:

1. Single-family detached dwellings.
2. Semidetached dwellings.
3. Duplex (two-family) dwellings.
4. Townhouse (attached/row) dwellings.
5. Buildings, structures, and other uses owned and operated by the City of Camden for municipal purposes.
6. Parks, playgrounds, or recreation areas, community center buildings, and libraries.
7. Public, private, or parochial educational institutions.

Accessory Uses:

1. In-ground and aboveground swimming pools and/or other structures customarily incidental to a private swimming pool on a property, subject to the requirements of § 870-193.
2. Accessory buildings and structures, subject to the requirements of § 870-189.
3. Off-street parking and private garages, subject to the requirements of § 870-214 and 870-230 through 870-241.
4. Fences and walls, subject to the requirements of § 870-197.
5. Signs, subject to the requirements of § 870-253.
6. Porches, decks and patios, subject to the requirements of § 870-190.

So if you are trying to do something that's not on that list, you can't do it without permission. And if you are doing something on that list, your approvals process is a lot easier because you don't need that permission.

The stringent nature of zoning rules also should not be understated. For example, although off-street parking is a permitted Accessory Use, it's not a permitted Principal Use. Therefore, if you try and convert an existing lot in the R-2 zone into a parking lot as the only use (i.e. the Principal Use), you would need a special permit for that.

Regulations state what you CAN'T do

Elsewhere in that zoning code are rules about parking requirements. Specifically in §870-231B(1), the code states the following for when you CAN'T use compact car parking:

The width of all aisles providing direct access to individual parking stalls shall be in accordance with the requirements set forth below. Compact car spaces may be permitted by the Planning Board only where the total number of spaces proposed to be provided exceeds 50 and shall not exceed 30% of the total number required. If permitted, compact car parking spaces shall be clearly identified by markings and/or signage and shall be grouped in one or more locations rather than dispersed throughout the site.

These rules more or less stipulate that a Planning Board can't approve a parking lot with compact car spaces if the lot has 50 or fewer spaces. So if you wanted to get approval for such a lot, you'd have to seek approval from the Zoning Board (that's not explicitly stated, but when you learn land use law, if the Planning Board can't do something then the power usually goes to the Zoning Board).

Regulations provide guidelines

For land use purposes, this is generally only the purview of professionals to handle, but there are lots of regulations which more or less provide boundaries for Professional Engineers, Environmental Scientists, Surveyors, Architects, Planners, etc. to work within. For example, the State of New Jersey's stormwater rules operate in such a manner. The overall rule requirements are stipulated in NJAC 7:8, however, actual implementation of the rule needs to conform with the State's Best Management Practices (BMP) Manual.

I won't go much into specifics regarding the BMP Manual other to say it's hundreds of pages describing the various ways the State permits stormwater designs to demonstrate compliance with NJAC 7:8 and the features that can be used to achieve that. But the actual choice of features, where they are placed on the site, and just about every other design element is determined by the professional performing the design and regulators are only limited in their scope to affirming that the proposed design conforms with the applicable rules.

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In general, regulations are written in a way to achieve some particular goal and often do so by either stating what you can't do, by stating what you can do (which in a way says that you can't do anything else), or by providing guidelines.

I will say that if your situation falls into the first two categories, the issue is cut and dry. If you fall into the guidelines category you then need to see if the rules you have to follow provide for resolving disputes. NJAC 7:8 states that if you need to deviate from strict conformance with it, then you need to seek a variance or waiver. I will also say that the granting of such a waiver is going to hinge on the opinion of the professional reviewing it. Generally, when we have to go through this process, it comes down to both the design engineer and the review engineer sitting down and discussing things in technical detail and coming to an agreement.

Once that's figured out, the recommendation to approve is given to the regulatory body and they default approve it. The reason for the default approval is none of the members of the Planning Board are as qualified as the review engineer to determine if granting the waiver is appropriate.

Answer 3

australia

Ignorantia juris non excusat

Ignorance of the law is no excuse.

Laws can prohibit activities (e.g. murder), or they can require them (e.g. lodging tax returns). The onus rests with the individual to determine the requirements of the laws applying to their acts and omissions and to comply with them. A similar obligation rests with the state (including administrative regulators), but the failure of the state to do so does not excuse the failure by an individual.

In fact, it goes further: if the government tells you what to do and you do it and what they told you to do is unlawful, you can be prosecuted and the courts will uphold your conviction. This position is different from other common law jurisdictions such as Canada and the United States.

The authority for this is Ostrowski v Palmer [2004] HCA 30.

In February 1999, Mr Palmer, a commercial fisherman, was charged by a Fisheries WA officer, Mr Ostrowski, with illegally fishing for rock lobster in a marine life protection zone near Carnarvon. In the months leading up to the incident, Mr Palmer had twice visited the Fremantle office of Fisheries WA to obtain regulations for Zone B of the WA fishing grounds, in preparation for switching from line fishing to lobster fishing. On the second visit, when the regulations for the 1998-1999 lobster season were not yet available, a staff member provided him with a photocopy of the office's documentation, but it did not include the relevant regulations. Mr Palmer, believing that his licence entitled him to do so, set 54 lobster pots in the exclusion zone near Point Quobba, without being alerted to his error by the observing Fisheries officers.

The High Court said:

impossible not to sympathise with the respondent. On any fair and objective view he was not culpable in any way. To the contrary – he was most diligent. He went to the office of the administering authority twice in order to ascertain what his obligations were. Entirely openly and strictly in accordance with his licence he sought to comply with his understanding of what he could do based on official information personally provided by officials.

But, they also upheld his conviction, saying:

mockery would be made of the criminal law if accused persons could rely on, eg, erroneous legal advice, or their own often self-serving understanding of the law as an excuse for breaking it.

Now, there is a defence of “mistake of fact” where an individual is mistaken about factual circumstances, say where they ‘steal’ a green Camry believing it to be the green Camry their sister lent them, but it isn’t. Indeed, the appeals court of WA in the Ostrowski case overturned the conviction by deciding that Mr Ostrowski knew the law but was mistaken in the fact that he believed lobster fishing was allowed in an area where it wasn’t, however, the High Court disagreed and decided that where fishing is allowed and where it isn’t is a matter of law, not a matter of fact.

The High Court explicitly considered the Canadian doctrine of “officially induced error” (described in another answer) and rejected it.

What is required to make out a conviction will depend on the elements of the particular offence and it may be that if a due diligence defence was available, Mr Ostrowski would not have been convicted.

Answer 4

In the absence of any evidence to the contrary, can I just assume that what I want to do is legal?

No.

Silence is just that, silence. You can't assume anything from it. If you don't get a clear answer, then it is the same as if you had never asked. You are legally on the hook if you guess wrong.