Essential Guide

Essential Guide: Enforcement of Environmental Crime (NSW)

WRITTEN BY Alice Menyhart

NSW Local Councils are often the first to respond to a planning or environmental offence. This guide will assist Council’s to decide what criminal enforcement options might be most appropriate.

In some cases, where a legislative breach can still be restrained, civil enforcement options such as the issue of orders or taking of class 4 proceedings might be more appropriate. You can read about some of those options here:

In response to offences against the Environmental Planning and Assessment Act 1979; Local Government Act 1993 and Protection of the Environment Act 1997, an officer of a Council can take any of the following criminal enforcement action (provided that they are appropriately authorised to do so):

  1. issue a Penalty Infringement Notice (PIN) [1];
  2. issue a Court Attendance Notice (CANs)[2]; or
  3. issue a summons[3].

PINS, CANS and Summons

PINs require payment of a (smallish) penalty and are intended to act as an immediate deterrent for offences at the less serious end of the spectrum. They are appealing to many council officers because they are quick and easy to issue. They do not result in a conviction being recorded.

The recipient of a PIN may elect to have the matter dealt with by the local court.[1].If this happens, the PIN is taken to have never been issued and a CAN is automatically issued instead by the State Debt Recovery Office. In this sense, the CAN effectively replaces the PIN. Once a CAN is issued, a Court date will be set and the Council will need to produce the evidence to support and prove the charge.

For mid-range offences, Councils might prefer to proceed directly to preparing a Court Attendance Notice. This can be seen as a ‘middle ground’ between issuing a PIN and taking Class 5 proceedings in the Land and Environment Court, as:

  1. The prosecution will be heard in the local court, which is more convenient for many regional councils and defendants;
  2. If proven, the fine imposed for the offence will usually be greater than the PIN amount but is subject to the Local Court’s jurisdictional limit of $110,000[2]; and
  3. The procedure in the Local Court is streamlined and matters are usually heard and determined more quickly than in the Land and Environment Court.

For more serious offences, or where a more flexible range of orders is sought from the Court, including, for example, restoration orders[3], then filing a summons with the Land and Environment Court will usually be the most appropriate response.

Drafting a charge

Before taking criminal enforcement action, it is worth considering the nature of the suspected offence and the nature of the evidence available to the Council to prove it.  We recommend that Council’s prepare evidence matrixes or checklists for common offences and consider:

  1. What is the offence or offences which have been committed?

Don’t forget to check for lawful exemptions, such as exempt and complying development, or the grant of environment protection licences. 

For PINs, the “short title of offence” must be drafted with reference to the fixed penalty handbook issued by the State Debt Recovery Office.

  • Who carried out the offence?

Without witness or admissions, it can sometimes be difficult to determine and prove who carried out an offence. Using investigation notices to obtain relevant records and interviewing witnesses can often assist. In some cases, you may need to consider whether an individual was acting in their own capacity or on behalf of a company in carrying out the offending conduct. It will also be necessary to ensure that any PIN, CAN or Summons identifies a legal entity capable of having proceedings brought against it (such as an individual or corporation) rather than a business name.

  • When was the offence carried out?

The elements of the alleged offence need to be considered to determine when the offence started and concluded, and care needs to be taken to avoid drafting a charge which inadvertently alleges two or more offences (a duplicitous charge), as a duplicitous charge may be struck out. Consider the following:

  1. the specific language of the act or provision said to give rise to an offence, and whether it has a temporal element (e.g. conditions of consent or an EPL with a daily or annual limit[1]).
  2. distinguish between a number of individual completed acts and something that is “continuing”[2]; 
  3. the fact that multiple individual acts may be undertaken in the course of a single engineering enterprise (such as the construction of a road) does not automatically mean that the offence was continuing or part of a single criminal transaction[3] ;
  4. the use of alternative offences in each summons is not duplicitous[4].

For PINs, where one offence is committed over a period of time exceeding 24 hours, then the box provided on the PIN for the date and time of the offence may be inadequate, and this information may instead need to be included as part of the offence description

Remember that, in Court proceedings, the elements of the offence need to be proved beyond reasonable doubt. Gaps in the Council’s evidence should be addressed before a PIN is issued or a prosecution is commenced.  See our Essential Guide on Investigations  Notices for tips on gathering information. It is also helpful to consider and investigate why the offence was carried out and what the consequence was of the offence, as these matters are relevant to sentencing in Court proceedings[1].

For more information, or for assistance in investigating or prosecuting an offence under planning or environmental legislation, contact me or another member of the BAL Planning, Environment & Local Government team.

[1] S.679 LG Act; S.224 PEO Act; S 9.58 EPA Act

[2] S.3.2 Local Court Rules 2009

[3] 5.3 Land and Environment Court Rules 2007

[4] S. 23A Fines Act 1996

[5] S267 of the Criminal Procedure Act 1986

[6] For example, under s.245 or s.250 of the PEO Act

[7] Snowy Monaro Regional Council v Tropic Asphalt Pty Ltd [2018] NSWCCA 202

[8]Kiangatha Holdings Pty Ltd v Water NSW [2020] NSWCCA 263

[9]ibid, but see also Grant Barnes

[10]Grant Barnes, Chief Regulatory Officer Natural Resources Access Regulator v Lidokew Pty Ltd [2021] NSWLEC 53

[11] [1] Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 (at [163]):

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