In brief - Substantial increase in penalties and government powers
The responsibility of companies and individuals in NSW engaging in development activities has increased as a result of reforms to strengthen the enforcement regime under the Environmental Planning and Assessment Act 1979 (the Act).
Environmental Planning and Assessment Amendment Bill increases maximum penalties
The introduction of the Environmental Planning and Assessment Amendment Bill 2014 (the Bill) amends the Act to increase substantially the maximum penalties for offences under the Act and the Environmental Planning and Assessment Regulation 2000 (the Regulation). The Bill was passed by both houses of parliament and the date of assent was 19 November 2014.
Government's enforcement powers strengthened
The Bill introduces the following substantial changes to the Act which are aimed at strengthening the NSW government's enforcement powers under the Act:
- An increase in the maximum penalties for offences against the Act and the Regulation.
- New offences for providing false or misleading information in connection with planning matters.
- A failure to comply with the Land and Environment Court's order regarding a brothel closure, or an order to cease use of certain premises for such classes of residential, tourist or other development as are prescribed by the Regulation, may result in the court making a "utilities order", directing that a provider of water, electricity, or gas to the particular premises stop providing those services.
- The expansion of the investigative powers of council and departmental officers for the enforcement of the Act.
Three-tiered offence regime introduced
The current planning provisions simply impose a maximum penalty of $1.1 million for all offences, regardless of whether the offender is a corporation or individual, or whether the offence was serious or minor.
The changes create a three-tiered offence regime, similar to the existing Protection of the Environment Operations Act 1997 (see our recent article Tenfold increase in scale of penalties for environmental offences in NSW). This regime imposes different penalties on corporations compared to individuals and recognises the level of the severity of the offence.
Tier 1 offences
Tier 1 offences apply to serious offences which were committed intentionally and which caused, or were likely to cause, significant harm to the environment or the death or serious injury or illness of a person.
An example is a development which was intentionally carried out without development consent or not in accordance with the conditions regarding fire safety, and which causes or was likely to cause significant harm to the environment or the death or serious injury or illness of a person.
Maximum penalty for tier 1 offences
Corporations could be penalised up to $5 million and a further $50,000 each day for continuing offences. Individuals could be penalised up to $1 million and a further $10,000 each day for continuing offences.
Tier 2 offences
Tier 2 offences apply to offences that were unintentional or did not cause, or were not likely to cause, significant harm to the environment or the death or serious injury of a person.
An example is the accidental spilling of waste into a stream which was cleaned up quickly to minimise the effect on the environment.
Maximum penalty for tier 2 offences
Corporations could be penalised up to $2 million and a further $20,000 each day for continuing offences. Individuals could be penalised up to $50,000 and a further $5,000 each day for continuing offences
Tier 3 offences
Tier 3 offences apply to lesser procedural or administrative offences. An example is a developer providing false or misleading information about the requirements of a condition of approval.
Maximum penalty for tier 3 offences
Corporations could be penalised up to $1 million and a further $10,000 each day for continuing offences. Individuals could be penalised up to $250,000 and a further $2,500 each day for continuing offences.
Regulation breaches carry further penalty
In addition, the Bill introduces a further maximum penalty of $110,000 for breaches of the Regulation.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.