Posted on October 14, 2014 by Carlo Zoppo

Tough new penalties for planning breaches in NSW

NSW Minister for Planning Pru Goward this week announced an increase in the maximum penalties available to the Land and Environment Court (the Court) against individuals and companies who contravene planning rules.

Under the Environmental Planning and Assessment Act 1979 (the Act), the maximum penalty is currently $1.1 million, an amount which has not increased since 1999. The new maximum penalties will be $5 million for companies and $1 million for individuals.

The move is part of a NSW Government overhaul to the sentencing powers of the Court in order to bring them into line with community expectations (for a previous discussion on recent environmental sentencing reforms, click here).”The community rightly believes the punishment should better fit the crime, and while most businesses are law abiding corporate citizens, current fines are no longer a strong enough deterrent”, Ms Goward said.

The statement released by Ms Goward had a particular focus on misleading environmental impact statements, as well as a developer’s failure to declare any political donations (for a previous discussion on political donations under the Act, click here).

Ms Goward highlighted the new three tiered structure of the penalty system, which are to be introduced in the next month. Given the reluctance of the Court’s judiciary to enforce anywhere near the maximum penalties, the reforms are an attempt to reduce discretion when it comes to sentencing by providing clearer categories of offence.

The first tier includes the most serious offences, such as carrying out development without approval or contravening a development control order where the offence was both committed intentionally and caused, or was likely to cause, significant harm to the environment or the death or serious injury to a person. The maximum penalty is $5 million for corporations and $1 million for individuals.

Second tier offences are also serious offences, but unlike tier one offences they 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. For example, accidentally spilling waste into a stream which was cleaned up quickly, minimising the effect on the environment. The maximum penalty is $2 million for corporations and $500,000 for individuals.

Third tier offences are less serious offences. This might include a mine failing to meet dust and noise monitoring requirements, or a developer providing false or misleading information to meet a condition of approval. The maximum penalty is $1 million for corporations and $250,000 for individuals.

The Minister emphasised that these measures should ensure that development consents provided by both the NSW Government and local governments will be adhered to. Should this not be the case, the Minister said that she expects the full scale of the new, tougher penalties to be utilised in order to restore the NSW community’s confidence in the planning system.