The Environmental Planning & Assessment Amendment Act 2014 (Amendment Act), which has not yet commenced, will amend the Environmental Planning & Assessment Act 1979 (EP&A Act) by enacting new offences and penalties, creating new enforcement powers and giving legislative effect to e-planning.
The Amendment Act provides for the introduction of a three-tier offence regime which is modelled on a similar approach under the Protection of the Environment Operations Act 1997 (PoEO Act).
A summary of the 3-tier regime is as follows:
|Tier 1 (most serious)||Applies where:· the offence was committed intentionally, and
· the offence: (i) caused or was likely to cause significant harm to the environment, or (ii) caused the death of or serious injury or illness to a person.
a) corporation: (i) $5 million, and (ii) for a continuing offence—a further $50,000 for each day the offence continues, or
b) individual: (i) $1 million, and (ii) for a continuing offence—a further $10,000 for each day the offence continues.
Examples: carrying out development without approval or contrary to existing approvals, or contravening a development control order.
|Tier 2||Applies to offences which are not Tier 1 or Tier 3 offences, ie the offence was unintentional and the offence either did not cause or was likely to cause significant harm to the environment, or did not cause the death of or serious injury or illness to a person.Maximum penalties:
a) corporation: (i) $2 million, and (ii) for a continuing offence—a further $20,000 for each day the offence continues, or
b) individual: (i) $500,000, and (ii) for a continuing offence—a further $5,000 for each day the offence continues.
|Tier 3||Applies to:a) a “certificate-related offence” (as defined), or
b) any other offence against this Act under section 125 (1) for which a tier 3 maximum penalty is declared to apply.
a) corporation: (i) $1 million, and (ii) for a continuing offence—a further $10,000 for each day the offence continues, or
b) individual: i) $250,000, and (ii) for a continuing offence—a further $2,500 for each day the offence continues.
Example: an applicant (or their consultants) providing false or misleading information in connection with a planning matter.
|Offence against Regulation||Maximum penalty of $110,000 unless otherwise prescribed.An exemption in relation to smoke alarms (s146A) provides that the maximum penalty is $550.|
Currently under the EP&A Act offences are subject to a maximum penalty of $1.1million (which has not increased since 1999), irrespective of whether the offence is of a serious or minor nature or whether it was committed by a corporation or an individual.
The Amendment Act also gives the Land and Environment Court alternative sentencing options when dealing with criminal proceedings by applying Part 8.3 of the PoEO Act, including orders:
- requiring the offender to publish details of the offence, to name and shame companies that flout planning controls;
- require the offender to restore damage done to the environment or to provide additional environmental enhancement;
- to recover any monetary benefits an offender might have received from committing the offence;
- to force offenders to attend training courses so they better understand their environmental obligations and how to do the right thing.
The Amendment Act also legislates to modernise the planning system by establishing the NSW Planning Portal. Several relevant dates under the EP&A Act are now given effect upon publication on the “NSW planning portal”. For example:
- The date from which a consent becomes effective and operates on and from (under section 83) will be the date the determination is registered on the NSW planning portal.
- Instead of Orders and Directions made by the Minister being published in the Gazette, the Minister will make “Ministerial planning orders” which are “orders made by the Minister and published on the NSW planning portal”.
Once the amendments commence, the EP&A Act will provide for several new offences.
Section 125 of the EP&A Act as amended will provide that a person who aids, abets, counsels or procures another person to commit, or conspires to commit, an offence is guilty of an offence.
A new section 148B will provide that a person must not provide information in connection with a planning matter that a person knows, or ought reasonably to know, is false or misleading in a material particular. This includes where a consultant provides a document (including an environmental impact statement for example) for the purposes of a development application.
The Court now has additional powers to make utility orders (orders directing utility providers to cut off gas, water and electricity supply to premises). In addition to brothel closure orders, the Amendment Act provides that the Court’s power to order cessation of utilities also applies in relation to a failure to comply with “an order to cease the use of premises for such classes of residential, tourist or other development prescribed by the regulations.” The Regulations could prescribe, for example, backpackers or student accommodation.
Before making a utility order, the Court must be satisfied that the failure to comply with an order to cease the use of premises has caused or is likely to cause a significant adverse impact on health, safety or public amenity.
New Enforcement Powers
The Amendment Act provides for local councils and the Secretary of the Department of Planning and Environment to appoint “Investigation Officers” which have new powers of entry and investigation.
An Investigation Officer may enter:
- any (non-residential) premises at which the officer reasonably suspects that any industrial, agricultural or commercial activities are being carried out – at any time during which those activities are being carried out there.
- Any other premises – at any reasonable time.
The 2nd reading speech for the Amendment Act explains that the ability to enter non-residential premises without first giving written notice will “enable councils to gather evidence without tipping off illegal operators”.
The power to enter part of a premises used for residential purposes must be either with the consent of the occupier or under authority of a search warrant or (in relation to entry for the purpose of inspecting work being carried out under a consent, approval or certificate under this Act or for the purpose of issuing a building certificate sought in respect of a premises) after giving notice.
Investigation Officers are also given greater investigation powers including power to seize items that the officer has reasonable grounds for believing is connected with an offence against the EP&A Act.
Before these new powers of entry can be exercised, Councils will need to appoint Investigation Officers. An appointment must be made by written instrument which may be made generally or subject to restrictions or for limited purposes.
Each Investigation Officer must be provided with an “identification card” however there is no requirement in relation to the information which such a card must include (as is currently the case in respect of identification cards for authorised officers under the PoEO Act).
Once these provisions come into effect, Local Government Legal’s Legislative Compliance and Delegations Databases will be amended to reflect the legislative reforms.
Note: This information is not to be relied upon as legal advice.