Posted on August 18, 2016 by

To PIN or not to PIN – that is the question

Increases in the prescribed amount for penalty notices (PIN) for environment and planning offences have seen an increase in the use of PINs, and an increase in the instances where recipients elect to have these matters dealt with by a Local Court.

This blog looks at the problems that can arise where enforcement agencies (Agency) 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.

Background

It is not unusual for an Agency, such as a local council, to issue a number of PINs totalling in excess of $20,000.00 for a range of contraventions of, for example, the Environmental Planning and Assessment Act 1979 (EPA Act).

Quite often recipients of PINs, not properly advised, elect to have these matters dealt with in the Local Court only to find the Court imposing penalties significantly greater than were imposed in the PIN. A Court considering a court election of a PIN approaches the matter considering the maximum penalty for each offence with the PIN amount not a relevant consideration on penalty.

In the context of a contravention of the EPA Act, this can be as high as $2 million for a tier 1 offence against a corporation. The Local Court may impose a penalty within its jurisdictional limit of $110,000.00.

Problems that can arise where PINs are issued

While the issue of a PIN is normally reserved for minor offences, the increase in prescribed penalties has seen the use of PINs increase significantly as the issue of a PIN is seen as an alternative to a prosecution in the Local Court and sometimes in the Land and Environment Court.

While the use of a PIN provides a quick and effective end to an enforcement matter, we have noticed a number of problems arising from the use of PINs, including the following:

• PINs issued for serious offences that should be the subject of a prosecution in the Local Court, the Land and Environment Court or another court. Once a PIN is paid the Agency is generally precluded from taking further proceedings for the same offence.

• A PIN is issued when the matter has not been fully or properly investigated. When a Court election is made, the Agency is left with the evidence that it had at its disposal when the PIN was issued. The enforcement powers that an Agency had prior to the commencement of the prosecution are limited as it could be argued that the exercise of the power is for the purposes of a prosecution and not a function of the Agency under the relevant enactment. The Agency may not be able to establish the offence beyond a reasonable doubt in the Court proceedings.

• Incorrect or imprecise details such as dates of offences or the description of the offence not properly entered onto the PIN. When a Court election takes place, the Agency does not generally get an opportunity to review the CAN before it is served and filed. Errors that are included in the PIN  PIN will be reflected in the CAN which may cause problems in the subsequent prosecution if not corrected.

Circumstances where PINs should not be issued

PINs are generally reserved for matters of a minor nature and are not appropriate for all environment and planning offences, particularly when the  Agency is seeking a particular environmental or deterrent outcome.

A PIN should not be issued in circumstances where:

• Remediation or rectification works are required and the Agency will need  orders of the Court to ensure remediation or other works are carried out. Recent changes to the EPA Act allow the Land and Environment Court to make orders in class 5 proceedings requiring the rectification or demolition of unauthorised works. Where a PIN is issued and paid, separate class 4 proceedings will have to be commenced for similar orders from the Court.

• A person has committed or continues to commit the same offence despite the issue of a PIN. In such a case the PIN is arguably not a strong enough deterrent to prevent the continuance of an offence.  In such a case  a prosecution seeking the imposition of more substantial penalty or civil enforcement proceedings seeking an order of the Court may be  more appropriate.

• A conviction is sought by the Agency. The payment of a PIN does not result in a conviction or an admission of liability so strictly speaking a person who has paid PINs for offences has not been convicted or been found liable for any offence.

• Where further proceedings may be taken for the same offence. Once a PIN is paid, the Agency generally cannot take further proceedings for the same offence.

Enforcement Policies

An Agency must carefully consider how and when enforcement staff issue PINs and the considerations should be included in the Agency’s enforcement policy to ensure that PINs are only issued in appropriate circumstances. This should take into account a range of relevant matters, such as the seriousness of the offence, whether remediation or other works are required and the Agency’s deterrent considerations.

If PINs are issued for more serious and complex offences, it is important to understand that if the recipient elects to go to court,  the Agency will have to establish the elements of the offence beyond a reasonable doubt.

Bearing these factors in mind will help an Agency meet its enforcement objectives and achieve the appropriate enforcement outcomes.

For further information about any enforcement matter including the issuing of PINs please contact Carlo Zoppo, Partner on (02) 8235 9705  or carlo.zoppo@lindsaytaylorlawyers.com.au