Amended Act means tougher planning enforcement

New changes to the Environmental Planning and Assessment Act 1979 (NSW) (Planning Act) are proposed by the Environmental Planning and Assessment Amendment Bill 2014 (Amending Bill), which was introduced to the NSW parliament on 22 October.  A fair amount of media attention to date has been on the particulars relating to tougher penalties and the enforcement regime.  At a higher level, the Amending Bill appears to be seeking to progress some of the less contentious aspects of the Planning Bill 2013 in the hope that it will be received more favourably by the minor Parties.

The aims

In the second reading speech, the Minister for Planning states that: ‘These reforms will mean New South Wales has one of the toughest enforcement regimes in the country, helping to restore public confidence in the planning system.’  It is clear from the changes that a central focus of the Amending Bill is to carry this out and enhance the enforcement mechanisms under the Planning Act.

The key changes

As the first attempt to amend the Planning Act since the Planning Bill 2013 failed to obtain upper house support, the Amending Bill is more conservative in its ambition and scope, but does contain some key changes to the Planning Act.

Some of the key changes proposed are set out below:

1. Tiered and increased penalty amounts:  The Amending Bill proposes the introduction of a 3-tier penalty system, similar to that which currently operates under the Protection of the Environment Operations Act 1997.  Generally speaking the system will operate as follows:

Tier Example of application Maximum penalty amount
Tier 1 Offence under s125(1) (e.g. carrying out development without approval or contrary to existing approval) where aggregating factors:

  • committed intentionally and
  • significant harm to environment or death of or serious injury or illness to a person
$5M (corporation),  $1M (individual)
Tier 2 Offence under s125(1) but no aggregating factors $2M (corporation), $0.5M (individual)
Tier 3 ‘Certificate related offence’ or where otherwise stated as tier 3 maximum penalty (e.g. providing false or misleading information in connection with planning matter or erecting a building without a construction certificate) $1M (corporation), $0.25M (individual)

The increase in the maximum penalties is significant.  For example, the maximum penalty for a corporation will be increased from $1.1 million to $5 million. Also, additional penalties may apply for continuing offences.

2. Increased enforcement options for Court:  The Amending Bill provides for additional sentencing options for the Land and Environment Court, by applying the enforcement options available under the Protection of the Environment Operations Act 1997 to offences against the Planning Act.  These options include the ability to recover monetary benefits obtained as a result of the commission of the offence, to ‘name and shame’ an offender or to direct that a specified project be undertaken for the restoration or enhancement of the environment in a public place or for the public benefit.

3. New offences – false or misleading information, aiding or abetting: The Amending Bill proposes new offences, including:

  •  Where a person provides information in connection with a ‘planning matter’ that the person knows, or ought reasonably to know, is false or misleading.  ‘In connection with a planning matter’ includes the provision of information in connection with a consent, approval or certificate application or the provision of any information in connection with the making of a provision of an environmental planning instrument.  Information in an environmental impact statement may also be covered by this offence.
  • Where a person  aids, abets, counsels or procures another person to commit, or conspires to commit an offence against a provision of the Planning Act or regulations, that person is liable for the same penalty as applicable to the offence against that provision.

4. Investigation officers: The Amending Bill increases the investigation powers for officers  appointed by councils or the Secretary of the Department.  For example, investigative officers are able to enter without notice any premises at which the officer reasonably suspects that any industrial, agricultural or commercial activities are being carried out— at any time during which those activities are being carried out there.  The powers may be exercised for a prescribed purpose, which includes for a council appointed officer, to enable a council to exercise its functions under the Planning Act.

5. Enforcement of orders by cessation of utilities: The Amending Act enables the Land and Environment Court to direct that a provider of water, electricity or gas to a premises concerned cease to provide those services, where there has been a failure at that premises to comply with:

  • a brothel closure order
  • an order to cease the use of premises for any class of development that is prescribed by the regulation.

Previously this type of order only applied to brothels.  The Minister refers to illegal hostels or backpacker accommodation as the types of development for which such an order may be made.  However, the regulations have not yet been made and so (if the Amending Bill is passed) this provision could apply to other kinds of development.

6. Facilitating ePlanning: The Amending Bill picks up on what was one of the key aspects of the Planning Bill 2013, in facilitating the use of the NSW planning portal and other online planning services and information.  In doing so, the Amending Bill seeks to modernise the planning system by communicating planning information more efficiently and comprehensively.  For example:

  • a range of orders that would previously have been published by Gazette will instead be published on the NSW planning portal
  • planning approvals will come into effect once the relevant determination or appeal decision is registered on the NSW planning portal
  • a NSW planning database will be established as a repository for all historical and current planning documents, including environmental planning instruments, plans, special data sets, maps etc.

What this means

Consent and regulatory authorities under the Planning Act would be wise to up skill their employees on these amendments, as points 1-5 above provide both a more robust enforcement system, which will assist with their enforcement options.

For the same reason, developers and persons carrying out activities under the Planning Act would be wise to heed the new penalties and bolstered offence and investigatory provisions.  Further, the web has been cast wider than just developers to people such as consultants who either conspire or aid, abet, counsel or procure others to commit offences against a provision of the Planning Act.

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