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Enforcement powers

What are the enforcement powers of councils?

Each council has a range of enforcement powers under the Environmental Planning and Assessment Act 1979 (EP&A Act) where compliance with a development consent it has issued is not occurring.

The main compliance power is section 121B, which authorises a council to issue orders in specific circumstances to persons, requiring them to undertake, or to refrain from, certain actions.

A stop work order under section 121B can be issued by council to stop building or subdivision work where the provisions of the EP&A Act have been breached or the works affect the support of adjoining properties.

Section 121H(1) of the EP&A Act provides that, in cases not involving an emergency, council must first give to the person to whom it proposes to give an order, a notice setting out the proposed terms of the order and the proposed period for compliance. The notice must also indicate that the person may make representations as to why the order should not be given.

A council may also impose an on-the-spot fine by the issue of a penalty infringement notice for failure to comply with many of the orders given under section 121B of the EP&A Act.

Schedule 5 of the EP&A Regulation was recently amended to insert a range of new offences under the EP&A Act and EP&A Amendment Regulation for which PINs may be issued.

The new PIN offences along with existing PINs and new amounts for other offences are summarised in Circular PS 09-003 http://www.planning.nsw.gov.au/planningsystem/pdf/ps09_003_planreform_commencement4_enforcement.pdf

Increased penalties are also able to be imposed where a person is required to do a certain thing within a specified time period, and has failed to do that thing for a period longer than the specified time.

Any person (though usually the council) may, under section 123 of the EP&A Act, bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of the EP&A Act.

When can councils use their powers?

A council can take action in relation to any development for which it has issued the development consent, even where it has not been appointed as the principal certifying authority (PCA) for the development. Councils sometimes receive complaints about developments for which an accredited certifier has been appointed as the PCA in relation to the non-compliance of the development with the development consent that was issued by the council.

The EP&A Act allows councils to act in such circumstances, however councils may first choose to refer such complaints to the PCA. This response may be appropriate depending on the nature and extent of any non-compliance.

What are the enforcement powers of accredited certifiers?

Accredited certifiers who are appointed as the PCA for a development have enforcement powers under the EP&A Act, but these are more limited than councils' powers.

The accredited certifier PCA can, similarly to councils, issue a notice under section 109L setting out the proposed terms of an order and the proposed period of compliance, but cannot issue a formal order to require compliance. A copy of the notice under section 109L that is issued on the builder / developer/ landowner must also be sent to the relevant council for the council to decide whether it will go on to issue the order.

Who should act on complaints first?

It is preferable for any complaints in relation to a development to be referred to the PCA in the first instance, as this is likely to be the person with the most association and familiarity with events occurring on the site. The PCA is appointed by the land owner and will be either the council or an accredited certifier (an individual or body corporate) .

The council or accredited certifier appointed as the PCA may be able to effectively resolve the complaint without the issue of a notice.

Where urgent action is required, or where a significant breach of the development consent, the EP&A Act or the Protection of the Environment Operations Act 1997 is involved, however, it may be more appropriate for a complaint to be referred to the council first because of its greater range of powers.

Does the council become the PCA when it exercises its enforcement powers?

No. Where council is not the appointed PCA but exercises its enforcement powers by the serving of a notice or an order, council's intervention does not mean that it assumes the role of the PCA - the appointed accredited certifier continues to be the PCA.

Council's intervention is simply an exercise of its regulatory powers to ensure compliance with the terms of its development consent.

In addition, when a council exercises its regulatory powers, it does not mean that it assumes all liability for the development. The council's exposure to liability is related only to the action it takes or does not take in relation to its enforcement powers.