EDO NSW Fact Sheet 2.1.4 - Responding to Unlawful Development

The information contained in this fact sheet is current as at 18 October 2006.

Topic 2 - Planning and Development

2.1 NSW Planning and Assessment Law

2.1.4. Responding to Unlawful Development

If you are concerned about a potentially unlawful development you should ask the local council whether a consent has been issued for the development and, if it has, get a copy of the conditions of consent.

The non-compliance should, in the first instance, be brought to the attention of the council and/or the Minister depending on which was the consent authority. They may wish to take action to stop the development.

Most civil enforcement actions are conducted by councils, who have a responsibility to uphold planning laws in their Local Government Area. Councils also have the power to respond to breaches of planning law by issuing fines and stop-work orders.

However, councils have discretion whether or not to take action about breaches of planning law, and do not always take action about matters of concern to residents.

Members of the public may commence civil enforcement proceedings in the Land and Environment Court in their own right to stop a breach of the planning law, such as seeking an injunction to restrain an unlawful development.

If the development is critical infrastructure, members of the public may only commence civil enforcement proceedings to remedy or restrain a breach of the Environmental Planning and Assessment Act or to enforce the conditions of consent if they first gain the approval of the Minister to bring the action.

Any person contemplating legal action against unlawful development should seek legal advice.

Text Box 2.5

Coalcliff Community Association v Minister and Kembla Coal and Coke Pty Ltd (1999) 106 LGERA 243

The Environmental Defender's Office acted for the Coalcliff Community Association to stop the dumping of coal waste and to seek remediation of a site on the Illawarra Escarpment.

The initial proceedings in the Land and Environment Court found that Kembla Coal and Coke had breached some of the conditions of consent regarding the disposal of coal waste, and as a consequence, it appeared that the consent had lapsed. Despite this, the Court was not prepared, in its discretion, to grant an injunction to stop the operation, because it found that the breaches were only ‘technical'.

On appeal, the Court of Appeal overturned this decision. The Court found that because the company had not complied with the conditions of consent when it commenced its operation, it had never lawfully commenced work under the consent. As a result, the consent had lapsed, and work could not continue on the site.

The case was returned to the Land and Environment Court where the parties reached an agreement that provided for the new owner to remediate the site.

Oshlack v Iron Gates Pty Ltd and Richmond River Shire Council (1997) 130 LGERA 189

In 1997, the Environmental Defender's Office acted for Mr Oshlack who sought an injunction to stop clearing for a subdivision on the controversial Iron Gates site at Evans Head. The site was bordered on three sides by national park and contained rare coastal rainforest, a wetland and an abundance of wildlife, including many threatened species.

The Land and Environment Court found that the subdivision had been carried out in breach of the conditions of development consent, and that those breaches were so serious that the development consent was rendered null and void. The developer appealed, and the Court of Appeal rejected the appeal.

The case was returned to the Land and Environment Court for a hearing on remediation. In a landmark judgment, the Court ordered the developer to demolish the subdivision (roads, drains and earthworks) and to carry out a full restoration of the site, including the infill of drains and the revegetation of the site.

2.1.4.1. Civil Remedies

In civil enforcement proceedings, the Court looks at the factual evidence, together with any relevant consent and Environmental Planning Instruments, to determine whether a breach of the law has occurred. In order to succeed, the person who commenced the proceedings has to prove, on the balance of probabilities, that a breach has occurred.

If a breach of the Environmental Planning and Assessment Act is proved, the applicant will usually ask the court for the following remedies:

If the developer fails to comply with an order of the Court within the time specified, then he or she may be in contempt of court and liable to a heavy fine, sequestration of property, or even imprisonment.

Even if a breach of the law is proved, the Court has a discretion about whether to make any orders. Therefore, in addition to proving that a breach of the law has occurred, the applicant will also need to prove that the proposed orders are just and appropriate in the circumstances. For example, the applicant will usually have to show that environmental harm will occur if the orders are not made, and that the case is not just about a technical breach of the law.

There are limitations on what can be done in civil enforcement proceedings. Unlike criminal proceedings, the Court cannot impose a penalty on the person who carried out the unlawful development, and it has no power to compensate people who have been adversely affected.

2.1.4.2. Criminal Offences

It is an offence to develop without consent or approval or to breach the conditions of development consent or approval.

A criminal prosecution commences with the prosecutor gathering evidence about the offence, which will be presented to a Judge of the Land and Environment Court. An order is issued for the defendant to appear in Court.

If the defendant pleads ‘not guilty', a trial before a Judge will be held, at which the prosecutor will have to prove beyond reasonable doubt, adhering strictly to the rules of evidence, that the offence was committed.

If the offence is proved, the prosecutor will also have to present evidence about the seriousness of the offence and the environmental harm caused, to enable the Court to decide what kind of penalty should be imposed.

A prosecution for failing to obtain development consent must be commenced within two years of the offence being committed. The relevant regulatory authority, such as the local council, or the Department of Planning, is usually the prosecutor in criminal offences, although in practice, the Department rarely prosecutes to enforce planning laws.