Posted on June 13, 2019 by Anna Sinclair and Stuart Simington

Time limits for the issuing of Penalty Notices

Enforcement agencies (Agency), such as local councils, regularly use penalty notices (PINs) such as for environment and planning offences under the Environmental Planning and Assessment Act 1979 (EPA Act) and the Protection of the Environment Operations Act 1997 (POEO Act).

A question that regularly arises is how long does an Agency have to issue a PIN after an offence has been committed?

The EPA Act and POEO Act do not prescribe a time limit for when a PIN must be issued. The answer largely depends on how PINs are regulated under the Fines Act 1996 (Fines Act) and the limitation period to commence proceedings for the offence if the PIN is court elected.

Court elections and limitation periods

If a person court elects a PIN, the PIN (and any reminder notice) is effectively taken to have not been issued or served (s37 of the Fines Act). It is then up to the Agency (or Revenue NSW if the Agency has a service level agreement with that body) to determine whether or not to commence proceedings against the person, generally in the Local Court pursuant to s172 of the Criminal Procedure Act 1986 (CP Act).

Proceedings for a summary offence must be commenced not later than 6 months from when the offence was alleged to have been committed, unless a law specifies another period within which proceedings must be commenced (s179 of the CP Act).

Both the EPA Act and the POEO Act specify the period within which proceedings in the Local Court (or Land and Environment Court) must be commenced. For example, under the POEO Act, proceedings for the pollution of waters must be commenced within 12 months from the date of the offence, or 12 months after the date on which evidence of the alleged offence first came to the attention of an authorised officer.

A crucial consideration in determining if and when a PIN should be issued is that the Fines Act allows for a court election to be made well after the original date for payment of the PIN, even if the PIN has been paid. For example:

  • where a penalty reminder notice is given (which is usually standard practice) – an election may be made not later than the due date specified in the penalty reminder notice for payment in relation to the offence concerned (s36(2)),
  • where an application is made for internal review of a PIN (prior to the date specified in a penalty reminder notice for payment in relation to the offence), an election may be made up to 28 days after the outcome of a review has been notified (s23A(2C)), and
  • a court election may also be made be up to 90 days after payment of a PIN (s23A(2A)).

It should  be noted that for summary offences with a limitation period of less than 12 months (eg 6 months), where the PIN has been issued within the limitation period, the Fines Act (effectively extends the limitation period) and allows the prosecution to be commenced within 12 months of the date of the offence (s37A of the Fines Act).

Appropriate time limit for issuing PINs

Generally speaking therefore, to ensure that an Agency has sufficient time to commence proceedings if a PIN (for an offence with a limitation period of 12 months or more) is court elected, the PIN must be issued much earlier than the end of the limitation period, and to be safe, perhaps no later than 6 months before the end of the limitation period. A failure to do so may mean that an Agency is statute barred from commencing proceedings if the PIN is (ultimately) court elected.

Council’s should review the service agreement between the Agency and Revenue NSW to ensure that it reflects the above practice.

If you would like to discuss this blog further then please contact Anna Sinclair, Senior Associate on (02) 8235 9713 or anna.sinclair@lindsaytaylorlawyers.com.au.

You can also read our previous blog that looks at the problems that can arise where Agencies issue PINs for more serious and complex offences, the circumstances where it is not appropriate to issue PINs, and how these matters should be managed in an Agency’s enforcement policy here.

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