Posted on November 24, 2014 by Carlo Zoppo

Councils given greater powers of investigation and enforcement

Increased investigative and enforcement powers are being given to officers of local councils and the Department of Planning (‘Investigation Officers‘) by amendments to the Environmental Planning and Assessment Act 1979 (NSW) (‘EPA Act‘) contained in the Environmental Planning and Assessment Amendment Act 2014 (‘Amendment Act‘). The Amendment Act has received Royal Assent but the relevant amendments to the EPA Act have not yet commenced.

The amendments align enforcement powers under the EPA Act with those under the Protection of the Environment Operations Act 1997 (‘POEO Act‘) and provide Investigation Officers with modern and effective tools to enforce the planning laws in the NSW. Investigation Officers will be able to more effectively build cases against individuals and corporations suspected of operating contrary to the planning laws, and sentencing options available to the Land and Environment Court will now extend well beyond pecuniary penalties.

Investigation powers

Investigation Officers must be duly authorised before being able to exercise the new powers.

Non-residential premises can be entered at any time where an Investigation Officer suspects that agricultural, commercial or industrial activities are being undertaken.

Before the Amendment Act, Investigating Officers were bound by strict notice requirements before entering any premises for the purpose of investigating possible planning breaches. As a consequence of the Amendment Act, Investigation Officers no longer need to give an owner or occupier written notice before entering non-residential premises. As stated in the second reading speech in Parliament, ‘this will enable councils to gather evidence without tipping off illegal operators‘.

An Investigation officer who lawfully enters premises may do anything that they  believe is necessary for an investigation purpose. Section 119F sets out some examples of what may be included within this wide power.

Investigation Officers may also require the production of information or records before entering premises, and may seize any items which they have reasonable grounds to believe is in contravention of the EPA Act.

Enforcement period

Prior to the Amendment Act, councils were subject to a limitation period in which to commence an action, being two years after the offence was alleged to have been committed. However, the Department could prosecute offenders within two years of evidence of the offence coming to its attention.

Section 127(5A) of the Amendment Act gives councils the same powers as the Department.

Liability for offences

Section 125 of the EPA Act has been amended to extend liability for offences to those who aid, abet, counsel or procure the commission of an offence, or those who conspire to commit offences, under the EPA Act. A similar provision has existed in the Crimes Act 1900 for many years, but the inclusion of this provision in the EPA Act removes any doubt that liability for offences extends beyond those who actually carry out activities which contravene EPA Act.

Utilities orders

When an individual fails to comply with an order given by a council  or the Department ‘to cease the use of premises for such classes of residential, tourist or other development as are prescribed by the regulations’ (see s121ZS(1)(b) of the EPA Act), a ‘utilities order’, that is,  an order to cut water, electricity or gas to premises, can be south from the Court.

The Court can only make utilities orders if it is satisfied that the failure to comply with the original order ’caused or is likely to cause a significant adverse impact on health, safety or public amenity.

Before the Amendment Act, the Court could only make utilities orders in respect of premises operating as brothels.

Alternative sentencing orders

The amendments allow the Court, where it finds an offence proven, to impose the alternative sentencing options contained in Part 8.3 of the POEO Act. These include orders to prevent control, abate or mitigate harm to the environment, orders regarding the payment of monetary benefits gained as part of committing an offence, and a publication order where the offender is required to publish an advertisement in a newspaper reporting on the prosecution.