Carrying Out Unapproved Works At Property On Foreshore of Sailors Bay Lands Builder In Hot Water!!!

It is a far worse outcome for a builder to be prosecuted in the Land and Environment Court than it is to risk losing a contract.  

That moral has been reinforced by a recent decision that was handed down by Justice Pepper on 9 March 2015, in the case of Willoughby City Council v Livbuild Pty Ltd (2015) NSWLEC 34, http://www.caselaw.nsw.gov.au/decision/54fcee9ee4b0bcd7fe7b831a. 

In this prosecution, a builder has been fined a total of $67,000, and ordered to pay the Council's costs (estimated to amount to an additional $64,000) for doing unapproved work on a property located on the foreshore of Sailors Bay in Northbridge. The illegal construction consisted of two primary elements: external works involving alteration of the land form and the building staircases, concrete terraces and retaining walls, and internal works involving, among other things, building a home theatre, a powder room and a pantry and store room in an area that had been designated as a "subfloor space" in the approved architectural plans.

The story of the case is a classic example of "doing the wrong thing when one knows better", and the builder who was prosecuted wound up paying a heavy price for his indiscretion.  The builder was asked to carry out the unapproved works by the property owner, and agreed to do so even though he was aware that development consent was required for the works but had not been obtained. It is recorded in Justice Pepper's judgement that the builder's reasoning was that he was interested in expanding his company's portfolio into the sphere of high-end home building, and that he was concerned that his company would lose the contract for other works on the property if he declined to do the unauthorised work.

While Justice Pepper's jdugement in the case does make reference to "actual" environmental harm that resulted from the external works in the foreshore area of the property (involving the removal of vegetation, the introduction of large quantities of fill and the increase in areas of hard paving), a major focus of Her Honour's analysis of the issue of harm relates to the harm to the regulatory framework of the Environmental Planning and Assessment Act that was occasioned by the carrying out of the works without prior development approval.  

It is of interest and significance that Justice Pepper declared in the judgement that the harm to the regulatory regime "crystallised the moment the works were undertaken absent development approval". Her Honour was quite specific in stating that the fact that development and building certificate applications had been lodged with the prosecuting Council in an effort to regularise the illegal works did not, in her view, diminish the illegal character of the works, nor did the lodging of these applications carry much weight toward mitigating the final penalty. 

The moral here, then, is that it is unwise to "act against the better angels of one's nature".  When a person is aware that development consent is required for certain proposed building works, it is, in our opinion, an extremely poor choice to proceed with the works in the face of knowledge that development consent has not been obtained. Indeed, as illustrated by the Court's judgement in the case of Ford v Hawkesbury City Council (recently reviewed in this blog) it is a mistake for any contractor not to make independent inquiries to ensure that necessary development approval has been obtained and to rely on representations of the property owner or other person engaging them that consent has been or "will be" obtained. 

In short, it is always absolutely essential to confirm that a required development approval has been secured before going forward with regulated works. Failure to exercise diligence and caution can carry extremely unfavourable consequences, in the form of an indelible criminal record and expensive fines and costs orders.

Fiasco! Council Reportedly Spends $100,000 Trying to Close Allegedly Illegal Brothel - And Loses The Case!

For all who follow with interest the course of environmental enforcement in New South Wales, there is a story in the Sydney Morning Herald on 9 March 2015 that is literally amazing!

The paper reports that Hornsby Shire Council has spent $100,000 on an enforcement case against an allegedly illegal brothel (referred to in the paper as the "Hornsby Massage Centre" or "Hornsby Massage Clinic")  - and that the case has gone down in flames!!!

The article in the SMH which reports on the outcome of the case can be found at the following link:

http://www.smh.com.au/nsw/show-me-more-sex-judge-tells-council-in-landmark-legal-case-20150308-13vx7g.html

Unfortunately, the judgement handed down in the case, which was reportedly heard in the North Sydney Local Court, has not yet been reported on the Internet (it is unusual for judgements of the Local Court to appear there).

As best as can be deciphered from the article in the SMH, it appears that the Council prosecuted the operator of the alleged brothel under the Environmental Planning and Assessment Act 1979. Presumably, the charge was commenced by means of a Court Attendance Notice and would have claimed that the alleged brothel was operating without required development approval.  Although the SMH report says that the Council enforcement action sought "closure of the brothel", as a matter of law this remedy would have been beyond the powers of the Local Court.  A Local Court can do no more than impose a penalty (maximum amount $110,000) against a defendant for a breach of the Act; only the Land and Environment Court can grant an injunction to restrain a breach (i.e. to prevent someone from carrying out an activity on land that requires development consent in circumstances where such consent has not been granted). 

On the face of the situation, and again presuming that the report in the SMH is accurate, the Council's strategic choices in this case appear, with respect, to be somewhat "strange".  It is our opinion (having ourselves handled many cases against brothels on behalf of local councils) that taking a penalty action in Local Court is not a direct or effective way to seek closure of an unlawful brothel.  Rather, in our view, it is much more sensible to proceed, in the first instance, through issuing a "Brothel Closure Order" under section 121ZR of the Act.  If that initial step does not prompt closure of the premises, then further civil enforcement remedies are available either by way of an action for an injunction to restrain the illegal use or by way of seeking a "utilities order" under section 121ZS to cut off water, electric and gas services to the illegal brothel.

In the event, the report in the SMH indicates that the Council was not able even to get a fine against the brothel owner/operator (it is not clear from the article precisely who the party was who was prosecuted). 

Instead, the entire case went "down the chute" because the magistrate who presided over the case (who is not identified in the article) was not satisfied that the premises as operated indeed fell within the definition of "brothel" as provided in the Act.  That definition, at section 4, specifies that the term brothel means premises used or likely to be used for the purposes of prostitution by more than one prostitute.  The Herald article indicates that, even though the Council hired a private investigator to inspect the premises, the presiding magistrate was not satisfied that the premises were being used by more than one prostitute.

It appears, again, on the basis of the SMH article, that there were numerous problems in the way that the Council ran this case. For one thing, the article indicates that the Council received complaints about the alleged brothel (which was located at a prominent location, near Hornsby Girls High and the Westfield Shopping Centre in Hornsby) in January 2014, and yet the prosecution was not heard before the Local Court until mid-January 2015. Thus, it appears that a substantial time period elapsed after the Council first received complaints until the charge was filed (in the ordinary course it should take far less than a year's time for a charge in the Local Court to be brought to hearing).  Again, it appears that in the year that elapsed from the time that the Council first received complaints, it could easily have issued a Brothel Closure Order and sought enforcement of such an Order in the Land and Environment Court.

Secondly, it seems plain that the Council should have made certain that it was in possession of proof that the premises were being, or were likely to be, used by more than one prostitute before it went forward with the charge (if it indeed it was the case that the Council lacked such proof, as appears to be the case from the report in the SMH).

If there is one saving grace about this story, it is that the SMH's characterisation of the Local Court's decision as a "benchmark" is almost certainly incorrect, because decisions of the Local Court have very little value as precedents and surely are not binding on the Land and Environment Court or other courts of superior jurisdiction in NSW. It is indeed a shame, however, that the Council's enforcement objectives have apparently not been achieved, and that such a large amount of ratepayers' money was lost in this failed enforcement proceeding (in our experience, $100,000 seems to be an exceptionally high cost for any enforcement action in the Local Court, and it is altogether unclear from the SMH report exactly why the Council's costs of running this case were as high as they were).

Our readers will of course be familiar with the old saying that: "The definition of insanity is doing the same thing over and over and expecting a different result".  Equally well might it be said that in New South Wales, where the maximum potential penalty that may be imposed under the Protection of the Environment Operations Act against a corporation for breaching the condition of an Environment Protection Licence is now $1,000,000 (with the possibility of additional penalties of $120,000 for each day that an offence continues) that the definition of "risky business practises" is repeatedly engaging in a pattern of corporate conduct that contravenes the Act.  To do so exposes the corporation to the peril of serial prosecutions by the Environment Protection Authority, and to the imposition of increasingly severe penalties by the Land and Environment Court.

This exact scenario has just unfolded in two recent proceedings brought against M A Roche Pty Ltd, the operator of a quarry located at Wauchope on the "mid-north coast" of NSW. These cases - the first being Environmental Protection Authority v M A Roche Group Pty Ltd (2014) NSWLEC 114 and the second being the very recently decided case of  Environmental Protection Authority v M A Roche Group Pty Ltd (2015) NSWLEC 29  (2 March 2015) - arose from virtually identical conduct. In each case, the company contravened a condition of an Environment Protection Licence that was granted by the EPA that imposed a limit on the quantity of material that could be handled at the quarry within a 12 month period.

The condition of M A Roche's Environment Protection Licence that was at issue in each of these prosecution restricted the quantity of material that could be handled at the quarry during any given 12 month period to 30,000 tonnes. However, in the period from January 2012 - January 2013, Roche actually handled over 88,000 tonnes. This breach occasioned the first prosecution, which was adjudicated by Justice Sheehan in July 2014 and which resulted in a penalty of $30,000 and a costs order.

The second prosecution before the Court involved a somewhat less severe exceedence of the 30,000 tonne handling limit. This prosecution dealt with the amount of materials that were handled during the period from January 2013 - January 2014, which was over 62,000 tonnes. This second prosecution resulted in a fine of $52,000.

A noteworthy aspect of this case is that the defendant disclosed to the EPA during an interview that was conducted in August 2013 that the defendant was aware that it was likely to breach the materials handling limit during the reporting period January 2013 - January 2014. Nonetheless, after this admission was made to the EPA, the defendant continued handle and sell material from the quarry (in other words, increasing the quantity of material over the handling limit and consequently worsening the severity of the breach of the licence condition). Unsurprisingly, this evidence led the Court (Justice Craig) to conclude that the breach was "deliberate".

It goes without saying that such an adverse finding by the Court can spell trouble for a defendant! Even though the POEO is a "strict liability" statute, it is the Land and Environment Court's standard practise in determining sentence to consider a defendant's underlying "state of mind". Evidence that an offence has been committed "intentionally" or "knowingly and purposefully", as was present in this case, can surely result in heavier sanctions.

It is thus our observation that in situations like this case, where a company is aware beforehand that its course of conduct is likely to result in a breach of licence condition, it behooves the company to take all available steps to avoid the offence altogether, or at least to reduce its seriousness.  The defendant could have done so in this case either by suspending operations for the balance of the year once it became aware that it had reached its materials handling limit, or at least by reducing its production and sale of material.

There is one additional aspect of Justice Craig's judgement in this case that is worthy of mention: The defendant in this prosecution had a record of two prior convictions for environmental offences: one of course for the previous breach of the materials handling limit, and another for a water pollution offence at the same quarry. Justice Craig stated in his judgement that he did not consider these previous convictions to be "aggravating circumstances". However, it appears that this conclusion is in conflict with the Crimes (Sentencing Procedure) Act, as section 21A(2)(d) expressly provides that a record of prior convictions is to be considered as an "aggravating factor".

It is our opinion that a future defendant with a string of previous convictions for environmental offences (particularly of offences against an identical licence condition, as in this case) would be at significant risk of having those earlier convictions "weighed in the balance" when the Court calculates a penalty. At the least, a lengthy record of previous environmental convictions would, in our view, work against a finding that a defendant is of "good corporate character" and would prevent a penalty from being mitigated on that basis.

Justice Craig's judgement in this prosecution can be found at the following link:

http://www.caselaw.nsw.gov.au/decision/54f3b447e4b007ec2d9fb3a7

Court Rejects Claim of "Honest and Reasonable Mistake of Fact" - Decision Reinforces That Contractors Must Make Independent Enquiries to Confirm That Work Complies With Approvals

The Land and Environment Court (per Justice Biscoe) has confirmed a conviction and fine imposed in the Parramatta Local Court against a contractor who felled 12 trees without required development consent in a rural area in the local government area administered by Hawkesbury City Council.  The judgement of the LEC, in the case of Ford v Hawkesbury City Council, (2015) NSWLEC 19 (16 February 2015) upheld the Local Court's orders which required the contractor to pay fines of $8,000 as well as the Council's legal costs, which were said to be on the order of $20,000.  Justice Biscoe's decision can be found at  the following link:

http://www.caselaw.nsw.gov.au/decision/54e280f4e4b024df3936b881

The circumstances of the case were that the contractor who was the subject of the prosecution (Ford) had been engaged by a property owner to carry out works on his land.  The Council had issued a development approval to the landowner which had given approval to the clearing of native vegetation, the construction of a dam, and the use of the land for the purposes of a "market garden". The development consent contained a condition which required that the work on the land be conducted in accordance with a "Vegetation Management Plan". This plan in turn specified that an area of the property that was designated a s a "conservation area" (containing trees and vegetation characteristic of Cumberland Plain Woodlands) not be disturbed.  

It was within this conservation area that the defendant Ford was observed by an officer of the Council to be felling trees with a bulldozer.

The defence to the prosecution that was put forward by the contractor before the Local Court was that he had carried out the clearing of the land as a result of "honest and reasonable mistake of fact". Where proven, evidence of such a mistake of fact can be a full defence to a prosecution for a strict liability offence, such as the offence of carrying out development without required development approval. 

In this prosecution, the defendant contractor asserted that a finding of honest and reasonable mistake of fact could be made based on the following factors: a) that a development consent had been granted in respect of the land; b) that the owner of the land had directed the contractor to carry out the removal of trees both within and outside the areas of the property where such work had been authorised by the development consent; c) the landowner had told the contractor that a development consent had been granted; and d) the landowner and his brother had been present on the property when the tree clearing work was being done; e) the owner had given the contractor a copy of a structural engineering plan relating to the works (but not a copy of the underlying development consent itself). 

In the event, neither the magistrate who presided over the prosecution in the Local Court, or Justice Biscoe on appeal, was persuaded that the contractor's mistaken assumption that a consent had been given authorising the tree felling was "reasonable".  The contractor had conceded while under cross-examination in the Local Court proceeding that he had been carrying out similar works on land for 30 years, and that he was aware from that experience that the types of work that he was directed to do by the landowner typically required development consent.  On that evidence, the magistrate and Justice Biscoe both concluded that is was not reasonable for the contractor to fail to make independent enquiries of the Council as to whether development consent had indeed been granted authorising the felling of trees within the conservation area.

Consequently, even though at the time that he carried out the work the contractor held a "subjective belief" that he was not doing anything unlawful, both the magistrate at the Local Court level and Justice Biscoe found that his failure to make his own independent investigation was not reasonable. Therefore, the contractor's claim that he believed that there was a consent in place allowing the trees to be removed was found not to be a valid defence to the prosecution.  

The clear moral of the decision in this case is that all persons who contemplate carrying out works that require development consent must be scrupulous to ensure that a consent for the works has actually been granted.  It is not enough for a contractor - whether engaged to perform land clearing or other work (such as building work) - to take the property owner's "word for it" that a consent covering the works has been obtained. The contractor must take steps of its own - including checking with the relevant council - to be sure that the relevant consent does exist. 

As the result here illustrates, the failure to make independent enquiries can result in significant adverse consequences, including costly fines, costs orders, and the reputational damage associated with having a criminal conviction recorded. 

Indeed, in the circumstances of this particular case, where the clearing was done in an ecologically sensitive area that has been designated as "critically endangered" under the NSW Threatened Species Conservation Act, it could be fairly said that this contractor was in some sense fortunate that the fine and costs were "only" about $28,000 in total. The sanction could easily have been more severe, and there can surely be no assurance that in a future prosecution involving similar facts it would not be.

Builder Learns the Hard Way That Building Steps Leading to Manly Cove Without Consent Was a Major Mis-step

A building company that is engaged in high-end residential construction has been fined $40,000 by the Land and Environment Court for re-constructing a staircase leading down a cliff-face to the foreshore of  Little Manly Cove without having required development consent. The foreshore area that was affected by the illegal building works provides critical habitat for Little Penguins, which are listed as endangered under the NSW Threatened Species Conservation Act.  It is thus one of the most unique and valuable natural resources in the entire Sydney metropolitan region.

The circumstances surrounding the offence were that a development consent was granted by the prosecuting council (Manly Council) authorising the construction of a new two-storey house on a waterfront property overlooking Little Manly Cove. The consent included conditions relating to the protection of the Little Penguin habitat at the Cove, including a requirement that no works of any kind were to occur below the top of the cliff-face above the cove without an appropriate approval from the Department of Environment, Climate Change and Water. Prior to the commencement of construction, an existing stairway was in place that led from the property down to the foreshore area. The building company's site supervisor observed that this staircase was not then in good condition.

After building works had begun on the property, the building company was instructed  by "the owners" of the site to replace the existing stairway during a regular on site meeting. The Court's decision recites that evidence was given that the project architect made statements to employees of the building company at this meeting to the effect that he would arrange to obtain the necessary approvals for the new stairway from the Council. The building company took the view at the time that it was not unusual for minor building works such as the repair or replacement of an existing structure not to require consent. It relied on the architect's representations that he would get the matter of securing necessary approvals "sorted with the Council" and it therefore did not make any independent enquiry with the Council as to whether consent had actually been granted before proceeding with the construction of the stairway. The construction works involved some removal of vegetation.

The Court (per Justice Sheehan) concluded that although the illegal building works had not resulted in any known harm to the Little Penguins living in Little Manly Cove, the offence committed by the builder was nonetheless of "moderate" objective seriousness. His Honour therefore determined that the offence warranted a penalty of $60,000, which was ultimately reduced by one-third, to a final penalty of $40,000, to take into account subjective factors relating to the defendant (including its lack of prior offences and good corporate character).

The outcome of this case re-emphasises the principle that persons who are engaged in construction works must be scrupulous to make their own independent confirmation that a required development consent has been obtained before going forward with work, and that they should not make assumptions that seemingly "minor works" do not require consent. This is especially true in circumstances where the building works will take place in an environmentally sensitive area. Failure to exercise caution in these respects can lead to significant penalties as well as a substantial costs order associated with a prosecution, and of course "reputational damage". Indeed, an opinion could be fairly entertained that in the circumstances of this case the builder was fined "lightly", due to the sensitivity of the environment that was impacted by the illegal works and in view of the fact that the maximum available penalty for the offence under the Environmental Planning and Assessment Act was $1.1 million (thus the penalty was less than 5% of the statutory maximum).

The Court's decision in this case, Manly Council v Horizon Habitats Pty Limited (2015) NSWLEC 15 (handed down on 12 February 2015) indicates that the Council has also instituted prosecutions against the one of the property owners and the architect are still pending before the Court, so more chapters of this story are yet to unfold.

The Court's judgement can be found at the following link:  

http://www.caselaw.nsw.gov.au/decision/54da7abde4b0aedbe9572e90

Appeal Against Council Order Closing Unauthorised Auto Repair Facility Goes Flat!

The operator of an automobile repair facility as lost an appeal against an order issued to him by Ryde Council directing him to cease the use. The appeal was heard before Commissioner Dixon. Her judgement affirming the Council's order, Broholm v City of Ryde Council, (2014) NSWLEC 1201, which was handed down on 28 October 2014, can be reviewed at the following link:

http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=175070

The premises where the facility in question was operating was located in a single storey corrugated iron shed, across the street from a block of flats. The Council received a complaint from a member of the public that a car repair shop had been operating in the shed for a number of years. An officer of the Council attended the premises and, based upon his observation that a number of derelict vehicles and body parts were stored outside the shed, arrived at the conclusion that the shed was being used for the purpose of restoring and repairing vehicles. The officer further determined that the vehicle repair use had the potential to generate noise and traffic, and thus to impact adversely on the amenity of local residents. On the basis of these findings, and on the basis of provisions in the Council's Local Environmental Plan that declared that use of the land in the particular location (which was classified as being within a "B4 Mixed Use Zone") as a "vehicle body repair shop" was prohibited, the Council proceeded to issue the ""cease use" order.

The operator's appeal against the order was based on two primary grounds, both of which were rejected by Commissioner Dixon.

First, the operator argued that he had the benefit of "existing use rights" which authorised him to engage in the repair of vehicles notwithstanding that the use was prohibited under the Council's current local environmental plan. The operator's claim was that the premises had been operated during the period from 1953 - 1998 as a shop for the welding, cutting, grinding, painting and fabrication of metals for the construction of wrought iron gates, and that the prior use thus entitled him to carry out similar kinds of metalwork with respect to automobiles. 

The Court followed a long line of precedent which holds that in order for "pre-existing use" rights to be valid, the claimed pre-existing use must have been lawful before it became prohibited. The Court found that the alleged pre-existing metalwork facility would have been classified as a "light industry" under the planning scheme ordinance that was in force at the time (1953) that the facility was claimed to have commenced operating. However, the previous planning scheme ordinance required that development consent be obtained for any "light industry" use. As there was no evidence that any such consent had ever been granted, the claim that the metalwork facility had been operating lawfully under the planning scheme ordinance could not be sustained. Consequently, the contentions advanced by the operator of the vehicle repair facility that he had the right to continue operating under the cloak of "existing use rights" did not succeed.

The operator's secondary argument, to the effect that he was a "car enthusiast who enjoyed "doing up" cars as a hobby and that he was operating the premises on a completely "non-commercial" basis was even weaker, and was rejected by the Court. Commissioner Dixon found that the work that the definition of (the prohibited use of) vehicle body repair did not require any commercial component. Thus, it was irrelevant whether the work that was being carried out in the shed, involving the cutting, welding and painting of car parts - was being done for financial gain or as a "hobby" as the operator claimed. In either case, the use in the particular land use zone was prohibited. (Further, it surely appears somewhat "incredible" that the alleged use was "non-commercial" in light of evidence that was brought forward in the proceeding that the shop had been operating for seven days a week.

An interesting aspect of this case is the fact that the Council was apparently aware of the use of the shed for the purposes of vehicle repair for many years before it proceeded to issue the closure order and that Council officers had apparently told the operator that they were "satisfied" that the use enjoyed the benefit of existing use rights. While of course a statement by a Council officer is not by itself sufficient to confer any rights under NSW planning law, such comments clearly have the potential to complicate an enforcement action. Similarly, longstanding tolerance by a council of an unauthorised use (as apparently  can also cause problems for an eventual enforcement action to restrain that use. The obvious moral here is that Council officers must make careful assessments as to whether there is a factual or legal foundation for a claim of existing use rights before they carry out any discussions with a person who is engaged in a suspected prohibited use, and must exercise care and restrain when making any statements concerning the lawfulness of a use.

On the other side of the coin, the moral for persons who seek to continue land uses under the umbrella of existing use rights is that they must make a thorough investigation of the history surrounding the pre-existing use, and must make sure that there is sufficient proof to establish that the pre-existing use was being carried out lawfully before a change in zoning controls made the use unlawful (prohibited). As noted by Commissioner Dixon, the proponent of a claim of "existing use" rights has the burden of proof, and vindicating that burden of proof is almost always "easier said than done".  

Tougher Criminal Enforcement Regime to Be Introduced to NSW Parliament for Planning Offences - Will It Make A Difference if it Becomes Law?

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.