The Environmental Planning and Assessment Amendment Bill 2014 (“Bill”) was introduced in Parliament on 22 October 2014 and proposes the following significant changes to the planning legislation for NSW:
- the introduction of a 3 tier system for offences against the Environmental Planning and Assessment Act 1979 (“EP&A Act”) similar to that in the Protection of the Environment Operations Act 1997 (“POEO Act”);
- increase of the maximum penalty for breach of the EP&A Act by a corporation from $1.1 million to $5 million (which is the maximum penalty under the POEO Act for offences committed wilfully);
- the introduction of a new offence of providing false or misleading information in connection with a planning matter which applies to applicants and their consultants;
- the introduction of new sentencing options for the Land and Environment Court (“Court”), similar to those available under the POEO Act, including publication orders to “name and shame” those who breach planning controls and the ability to recover the monetary benefits an offender received from committing the offence;
- greater investigation and enforcement powers for Councils including the ability to enter non-residential premises without notice for the purpose of gathering evidence; and
- the introduction of an online lodgement and tracking portal for planning applications.
The maximum penalties for breach of the EP&A Act have not been increased since 1999 and as the Minister for Planning (“Minister”) noted in the Second Reading Speech the Court has proved reluctant to impose the maximum penalty. The introduction of a tiered approach whereby the maximum penalty for corporations for tier 1 offences is $5 million, for tier 2 offences is $2 million and for tier 3 offences is $1 million is intended to encourage the Court to impose greater penalties, as the maximum penalty is a factor to be taken into account by the Court in sentencing.
The new offence of providing false or misleading information is a tier 3 offence and carries a maximum penalty of $1 million for a corporation and $250,000 for an individual. The obligation is that a person must not provide information in connection with a planning matter that the person knows, or ought reasonably to know, is false or misleading in a material particular. A planning matter includes development applications and related certficates as well as planning proposals. The creation of this offence is of particular relevance for consultants who prepare statements of environment effects and environmental impact statements as the provision specifically applies to persons engaged by applicants to provide information in connection with applications.
The new sentencing options mirror the options available under the POEO Act.
Of particular significance with respect to the changes to Council’s investigation and enforcement power is the ability for authorised Council officers to enter non-residential premises without notice so as to, in the Minister’s words, “gather evidence without tipping off illegal operators”.
According to the Minister the ePlanning portal is intended to bring the planning system into the 21st century by allowing applicants to lodge and track applications electronically, reducing the time and resources spent producing hard copy documents. A related change that applicants should be aware of is that development consents will operate from the date the decision is registered on the planning portal rather than date the endorsed on a Notice of Determination or the date of a Court decision.
The Bill has passed through the Legislative Assembly and was introduced to the Legislative Council on 5 November 2014 where it awaits second reading and debate.