Australia: Major leap proposed for NSW planning enforcement powers

A new structure for environmental offences, including major increases in maximum penalties, will be in place soon if changes to the Environmental Planning and Assessment Act 1979 currently before the NSW Parliament are passed.

The Environmental Planning and Assessment Bill 2014 would also formally introduce an online planning portal to promote efficiency and transparency in the planning process.

New offence structure and maximum penalty increases

The Environmental Planning and Assessment Bill 2014 outlines a three tier structure for planning offences, which is similar to, but in some respects tougher than, the tiered structure for environmental offences in the NSW Protection of the Environment Operations Act 1997 (POEO Act). Maximum penalties for different offences will be set according to the tier in which each offence sits, with the highest maximum penalty jumping from $1.1 million to $5 million.

This follows recommendations in the 2012 review of the planning system, which also led to the proposal for a new Planning Act (which the Government is currently reviewing after the NSW Legislative Council passed the Planning Bill but with changes unacceptable to the Government).

The Minister for Planning, when introducing the Bill into Parliament, noted that the Planning Act currently provides a single maximum penalty of $1.1 million for almost all offences, and indicated that (perhaps for this reason) the Land and Environment Court has been reluctant to impose the maximum penalty. This suggests that one of the reasons for the new penalty structure is to give the Court better guidance on appropriate penalties, with the result that penalties may increase.

We have summarised the proposed penalty structure below:

The Bill also provides additional daily penalties for continuing offences.

Separate maximum penalties may be prescribed for offences under the regulations.

The Bill adopts the alternative sentencing options in the POEO Act for Land and Environment Court matters under the Planning Act. These options include (among other things) the frequently used orders to advertise convictions, and orders to recover monetary benefits which an offender might have received from committing the offence. Significantly, the Minister cited "profits gained by a mining company from exceeding approved extraction limits" as an example of benefits which an order could target.

New offences

The Bill provides an expanded offence of providing information "in connection with a planning matter" which the person knows, or ought reasonably to know, is false or misleading in a material particular, and makes this a Tier 3 offence. The concept of providing information "in connection with a planning matter" captures applicants for planning approval and their consultants, other development proponents, and any other person in a situation which the regulations prescribe. The inclusion of consultants is a significant step, though it reflects recent prosecutions of consultants under environmental laws for the advice they provide.

The Bill also:

• expands the requirement for disclosure of political donations in connection with an application for planning approval or a request for other planning decisions (such as rezoning); and
• includes a wider offence of aiding, abetting, counselling, procuring or conspiring to commit an offence.

The Bill does not propose personal liability for directors, unlike the position for many other environmental statutes in NSW.

Broader investigation and enforcement powers

The Bill gives council and Departmental officers stronger investigation powers, which are similar to some of the powers in the POEO Act.

In addition, it extends the time frame for commencing a prosecution from two years after the date of committing the relevant offence to two years after the date on which evidence of the alleged offence first came to the attention of the prosecuting authority.

ePlanning

On the positive side, the Bill formalises the ePlanning initiative, which establishes the Department of Planning and Environment website as the "NSW planning portal" and allows:

• online submission and tracking of applications for planning approval;
• online notification of determinations of planning applications;
• online publication of various Ministerial directions, notices and orders;
• online access to a wider range of planning documents and other information, including in relation to specific developments;
• online delivery of a variety of other planning services.

As an example of what ePlanning offers, the Minister commented that:

"Using three-dimensional [3D] visualisation tools, ePlanning will allow the community to see how a proposed precinct actually will look and give them the tools they need to contribute to the planning process."

ePlanning should make many aspects of the planning process more efficient and less expensive. It should also increase the public accessibility of information, with a view to promoting public participation and confidence in the planning system.

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.