NSW Cracks Down on Planning Law Breaches

Tuesday, October 14th, 2014
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Companies who wilfully dump dirty water from mine operations into nearby rivers in New South Wales or recklessly build apartments which don’t meet fire safety standards will have to pay up to four times more in fines and penalties as the state’s government moves to clamp down on those who breach planning legislation in the state, albeit with maximum penalties for individuals actually being reduced.

In a statement, Minister for Planning Pru Goward announced the current system whereby maximum fines and penalties for breaches of the Environmental Planning and Assessment Act were set at $1.1 billion irrespective of the nature of the breach would be replaced with a three-tied system whereby maximum fines ranged from $1 million to $5 million for companies and $250,000 to $1 million for individuals according to the seriousness of the breach (see below) – in effect raising the penalty on companies for offences which cause serious death, severe injury or serious environmental damage but reducing maximum penalties for individuals in less serious cases.

The new laws also upgrade the offence of providing false or misleading information in environmental impact statements and clarify that it is an offence to not declare political donations made by directors of companies related to development applicants in addition to donations from the applicant themselves.

Despite the reduced fines for individuals, Goward says the tiered system will deliver a more suitable match between the size of the penalty and the nature of the offence, and adds that with fines not having increased since 1999, the current maximum for serious offenses does not provide a strong enough deterrent.

“We’re talking about a mine that intentionally dumps dirty water into a nearby river system or a developer building a block of units that doesn’t stick to the fire safety conditions that have been set,” Goward said, referring to cases which would attract the maximum penalties under the new system.

“The Court has been reluctant to impose the maximum penalty, so introducing a tiered system makes clear the Government’s intentions and encourages higher penalties for the worst offences.”

She adds that the requirement regarding political donations would mean political donations ‘can no longer be hidden away in chains of subsidiary companies’.

Amendments to give effect to the new legislation are expected to be introduced early next month.

The new maximum penalties:

  • Tier 1 ($5 million for companies; $1 million for individuals): applies to the most serious offences such as carrying out development without approval or outside of existing approvals or contravening development control orders for deliberate and purposeful offences which caused or were likely to cause death, significant environmental harm or serious injury
  • Tier 2 ($2 million for companies; $500,000 for individuals): applies to offences which are similar to those in tier 1 but which are unintentional or not likely to cause significant environmental harm or personal injury
  • Tier 3 ($1 million for corporations; $250,000 for individuals): applies to less serious offences, such as failing to meet dust and noise monitoring requirements in mines or providing false or misleading information in relation to meeting a condition of approval.
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