Posted on August 25, 2015 by

Increased penalties and enforcement powers commence under NSW planning laws

The Minister for Planning recently announced the commencement of changes to the Environmental Planning and Assessment Act 1979 (‘EPA Act’), including increasing the maximum penalties for offences and providing greater investigation and enforcement powers to Councils.

The changes that provide significant enforcement powers to Council staff were originally passed by Parliament in November 2014 as part of the Environmental Planning and Assessment Amendment Bill 2014.

The changes were the subject of our in focus posts in October and November 2014. Links to those posts follow:

October 2014 Post

November 2014 Post

The amendments to the EPA Act that have now commenced include:

Investigation & Enforcement Powers
The new Investigation Powers afforded to Council officers are similar to those provided to authorised officers under the Protection of the Environment Operations Act 1997.

The changes provide that:

• An Investigation Officer may issue a written notice to a person requiring that person to provide information and records in connection with an investigation,
• A person must not refuse to furnish records or information or to answer a question on the ground that the record, information or answer might incriminate the person or make the person liable to a penalty,
• Non-residential premises may be entered by an investigation officer without prior notice where the officer ‘reasonably suspects’ that any industrial, agricultural or commercial activity is being carried out on the premises,
• Residential premises may only be entered by an investigation officer with the consent of the occupier, with a search warrant, to inspect work carried out under a consent, approval or certificate under the EPA Act, or to inspect the premises to issue a building certificate sought under the EPA Act.
• An Investigation Officer who lawfully enters premises may do anything that they believe is necessary for an ‘investigation purpose’.

Increased penalties

• Maximum penalties for contraventions of the EPA Act have increased in some cases four-fold, and additional penalties have been introduced,
• Increased penalties are now available for offences committed intentionally or those that cause harm or likely harm to the environment or death or serious injury to a person,
• The maximum penalty for offences against the Environmental Planning & Assessment Regulation 2000 has been increased to $110,000.

Extension of liability for offences

• The amendments include a specific provision imposing liability on those who ‘aid, abet, counsel or procure’ the commission of an offence and those who ‘conspire to commit’ offences.
• Councils will now be able to commence prosecution action for offences within 2 years from the date when evidence of an offence first came to the attention of a Council officer (and not from the date of the contravention).

Alternative Sentencing Options

Alternative sentencing options have been introduced that allow a Court to order a person found guilty of an offence to:

• Prevent, control, abate or mitigate any harm to the environment caused by the commission of the offence,
• Make good any resulting environmental damage,
• Prevent the continuance or recurrence of the offence,
• Pay an amount representing the monetary benefit derived from the commission of the offence,
• Publicise the offence (including the circumstances of the offence) and its environmental and other consequences and any other orders made against the person.

Transitional Provisions

• Council investigation officers may apply the new investigative powers to existing and new investigations.
• Council officers who were ‘authorised officers’ prior to the amendments will be taken to be Council Investigation Officers and an authority card issued under s118I(2) is taken to be an identity card for the purposes of the new enforcement powers (clause 39 of schedule 7 of the EPA Regulation 2000).