The Sydney Morning Herald has reported that the NSW State government is planning to introduce legislation to Parliament that would lead to the enactment of a significantly strengthened penalty regime for "planning law" offences. The article indicates that the new enforcement provisions will be drawn from the Planning Bill 2013 that failed to find sufficient political support to gain passage. A link to the report in the Herald (17 October 2014) is below:
http://www.smh.com.au/nsw/stronger-powers-to-prosecute-wayward-developers-for-land-and-environment-court-20141017-116azf.html
and a link to the "Exposure Draft" of the Planning Bill 2013 is also provided, as follows:
https://majorprojects.affinitylive.com/public/4753629ee2d34e89e72dab8963a117a3/Planning_Bill_2013.pdf
If the legislation does secure approval in the Parliament, the potential maximum criminal penalties for breaches of planning law would be greatly increased above the penalties that can be imposed under the present Environmental Planning and Assessment Act 1979. Under section 126 of the EP & A Act, the maximum possible penalty for an offence is $1.1 million, with possible further "daily penalties" in the amount of $110,000. The penalty framework under the EP & A Act does not differentiate between the penalties that may be imposed upon a corporation and those that may be imposed upon an individual - the same scheme applies to both (except in relation to "penalty notice" offences, in which case the penalties that can be assessed against corporate entities are specified as being higher than those which can be given to individuals).
The criminal penalty structure that is outlined in the Planning Bill 2013 follows the model that has been incorporated into the Protection of the Environment Operations Act 1997 in that various "tiers" of offences can attract different levels of penalties.
The most serious offence under the Planning Bill 2013 provisions is a "Tier 1" offence. The proposed legislation specifies that a Tier 1 prosecution can be brought only in circumstances where the prosecutor can establish that the offence was committed intentionally and either that the offence caused or was likely to cause significant harm to the environment or the offence caused the death of or serious injury or illness to a person. (It is our view that Tier 1 prosecutions are likely to be relatively unusual - most previous prosecutions in the Land and Environment Court that have been brought under the EP & A Act have not involved "significant" environmental harm and it is unlikely, save in the case of a breach of fire safety requirements or a fire safety order that a breach of planning law controls would result in death or serious injury. In circumstances where a Tier 1 prosecution is brought, the proposed legislation provides for maximum penalties of $5 million in the case of a corporation with additional penalties of $50,000 for each day that an offence continues, and a maximum penalty of $1 million for an individual, with additional daily penalties of $10,000 for continuing offences.
The Exposure Draft of the Planning Bill 2013 provides that the next two "tiers" of offences, Tier 2 and Tier 3, would be prescribed specific offences in any new planning legislation that is enacted. As is the cases with offences under the current EP & A Act, Tier 2 and Tier 3 offences would be "strict liability" offences. In order for these penalties to be brought into play, there would be no requirement for the prosecutor to make a showing of "recklessness" or "negligence". Tier 2 offences would attract maximum potential penalties of $2 million (slightly less than twice the possible maximum under the EP & A Act) in the case of a corporation with further daily penalties of $20,000 for an ongoing offence, and $500,000 in the case of an individual with continuing penalties of $5,000. The next tier down, Tier 3, would have maximum penalties of $1 million for a corporation with ongoing penalties of $10,000 for continuing offences, and $250,000 for individuals with continuing penalties of $2,500.
It should be noted by readers that until further planning legislation is actually enacted, it will be unknown what types of offences will attract Tier 2 penalties and which will be subject to the less stringent regime under Tier 3.
Like the present EP & A Act, proceedings for offences will be able to be brought either in the Land and Environment Court or in Local Court. Also, the current statutory maximum penalty of $110,000 will continue to apply in Local Court prosecutions.
Also, very curiously and in our opinion, inexplicably, the draft legislation would continue what we consider to be a strange and indefensible provision of the EP & A Act (section 127) which bars criminal and civil proceedings from being brought in respect of the same matter (even in circumstances where the civil proceedings have been concluded). We have always found it unaccountable that proceedings seeking a penalty cannot be brought where an action seeking an injunction with respect to the same breach of planning legislation is either "still on foot" or has been concluded by the making of an order by the Land and Environment Court. It is our view that a better enforcement regime would enable a regulatory authority both to seek restraint or correction of a breach (through an injunction) and a penalty (to punish the offender and to serve as a deterrent). In our experience, every environmental law in the United States allows both criminal and civil proceedings to be brought in respect of the same "violation of law", and this is a workable and effective framework. The underlying policy rationale that prevents both civil and criminal enforcement with respect to a breach of planning legislation in NSW remains a mystery to us.
There are a few further features of the new enforcement provisions that are to be introduced to the Parliament that are noteworthy:
1. A section will be added dealing with "ancillary offences" which specifies that a person who aids, abets, counsels, procures another person to commit, or conspires to commit, an offence against planning legislation is guilty of an offence (we note that building professionals such as architects, builders and accredited certifiers could face prosecution under these provisions!);
2. A new "Tier 3" offence is created for providing information in connection with a planning matter that the person knows or reasonably ought to know is false and misleading in a material respect. This provision will apply to persons who are applicants for a planning approval and who provide the information themselves in connection with the application and also, very significantly, to persons who are engaged by applicants to provide information in support of an application. Thus, the whole range of experts who provide reports in relation to a planning application - town planners, urban designers, heritage specialists, architects, arborists, structural and geotechnical engineers, could all be potentially liable to criminal prosecution and penalties. While it has always, of course, been essential for experts to be truthful in the material that they give in relation to a development application, the stakes and potential consequences have now been significantly raised!
3. The new legislation would incorporate the provisions of Part 8.3 of the Protection of the Environment Operations Act into NSW planning law. Consequently, in Land and Environment Court prosecutions, the Court will have the power to order convicted offenders to publish notice that they have committed the offence; to correct any environmental harm occasioned by the offence; to pay the investigative costs incurred by the regulatory authority; and to disgorge, as an additional penalty, the amount of any "economic benefit" that the offender has realised as a result of the commission of the offence.
We conclude this post with the observation that the ultimate effectiveness of this new, much more powerful enforcement regime, will depend on its implementation by the courts. It is our opinion that penalties for environmental offences have historically been very low by international standards (for example, the penalties for pollution offences are far lower in NSW than in American jurisdictions). We also note that, in our view, the Land and Environment Court has historically been reluctant to impose higher penalties on offenders in response to increases in the statutory maximum penalties provided for in environmental laws. It therefore remains to be seen whether the Court's future judgements will reflect the higher penalty scales in the legislation.
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