NSW planning laws reforms set to restore public confidence in the planning system and the introduction of ePlanning that inter alia increases transparency and access to information.

The Environmental Planning and Assessment Amendment Bill 2014 assented on 19 November 2014[1] has reforms [said] to “strengthen the enforcement regime under the Environmental Planning and Assessment Act, setting tough new penalties for breaches of the Act … giving councils increased investigative powers … the introduction of a three-tier offence regime [with] strengthened penalty provisions … in line with community expectations … that provide the court with new powers[2] to make offenders more accountable … making New South Wales one of the toughest enforcement regimes in Australia”.[3]

The bill facilitates the introduction of ePlanning with the NSW planning portal, for both State Government and local government information. This enables online lodgement and tracking of applications, along with three-dimension [3D] visualization tools that show how a proposed precinct will actually look like. The bill deals with copyright issues, by enabling applications to include a licence for the use of copyright material and a warranty that the applicant has a licence from the copyright owner (limited to State Government and local government).  Third parties will not be able to use, or reproduce publicly available planning information without the express approval of the copyright owner.[4]

Tier 1 offences are serious deliberate breaches of planning legislation that caused or are likely to cause, significant harm to the environment or the serious injury or death of a person. Tier 2 offences are unintentional and do not cause significant harm to the environment nor serious injury or death of a person. Tier 3 offences are administrative and/or procedural.  It is now an offence not to disclose political donations made by directors of companies related to applicants for planning approval.

The Changes

  1. Schedule 1 -Offences and Penalties
    s125 Offences against the Act and Regulations

1.1 Maximum penalties for offences against Act: Tier 1[5].
Corporations $5 million, and a further $50,000 for each day the offence continues, or

  • Individuals $1 million and a further $10,000 for each day the offence continues.

1.2 Maximum penalties for offences against Act: Tier 2[6]

  • Corporations $2 million, and a further $ 20,000 for each day the offence continues, or;

  • Individuals $ 500,000 and a further $5,000 for each day the offence continues.

1.3 Maximum penalties for offences against Act: Tier 3[7]
Certificate-related offences

  • Corporations $1 million, and a further $ 10,000 for each day the offence continues, or

  • Individuals $250,000 and a further $ 2,500 for each day the offence continues.

1.4 Maximum penalties for offences against regulations[8]

  • Penalty not exceeding $110,000.

This section is subject to any provision of the regulations that prescribes a different maximum penalty.

  1. Schedule 2 – Enforcement Powers
    2.1 Powers of investigation officers [9]
    There are wide powers of investigation for the purposes of inspection that may require the opening, cutting into or pulling down of any work that the officer has reason to believe has been done in contravention of the Act.

     

    2.2 Powers to Obtain Information [10]

    2.3 Provisions relating to requirements to furnish records, information or answer questions[11]

    2.4 Miscellaneous provision applying to exercise of powers[12]

    2.5 Enforcement of orders by cessation of utilities[13]

  2. Offence—false or misleading information[14]
    The section not only includes the applicant but also a person engaged by the applicant.An environmental impact statement or other document is part of information provided in connection with a matter, if it forms a part of, or accompanies the matter or is submitted in support of the matter.

  3. tier 3 maximum penalty under s125.
    Note the reference to the Crimes Act 1900 in connection to other offences in relation to false and misleading information.[15]

  4. Schedule 3 – ePlanning
    4.1 Online planning services and information[16]

     

    4.2 Copyright in documents used for purposes of this Act[17]

  5. Schedule 4 – Miscellaneous
    5.1 Disclosure of political donations and gifts[18]This section captures a wide range of persons who may be affected by the granting of the application or submission. It not only includes persons who are associated with each other but are related bodies corporate under the Corporations Act 2001 Commonwealth, but also those who are directors of the same body corporate or different bodies corporate that Act.Note the reference to the Crimes Act 1900 in connection to other offences in relation to false and misleading information.[19]

Comment

Enforcement is a critical element in any efficacious town planning regime.  TheEnvironment Planning and Assessment Amendment Bill 2014 sets a new benchmark in providing ample breach investigation powers and logical and salutary penalties.