MONOGRAPH 40 volume 1

103 Research monograph 40 2. Findings study period was 1,000 penalty units, which equates to a maximum fine of $110,000. 574 The high maximum financial penalty in the legislation indicates Parliament’s view of how important it is to comply with, and not undermine, the legislation regulating planning and development. 575 Findings In total, there were 78 principal offences aggregated under this category: • 50 cases of s 76A(1)(a) offences under the EPA Act — “Development carried out without a development consent” • 25 cases of s 76A(1)(b) offences under the EPA Act — “Development not carried out in accordance with consent”, and • three miscellaneous environmental planning offences under the same Act – one case of s 75D(2): “Fail to comply with conditions of approval”, – one case of s 121B(1)(14): “Fail to repair or remove a building contrary to order”, and – one case of s 121B(1)(19): “Fail to cease specified building work or subdivision work”. The 78 development without consent offences were committed reasonably equally by corporations (33%), small business owners (31%) and “ordinary Joe” individuals (36%). Financial gain Only one-quarter (24%) of the development without consent offences were identified as being committed for financial advantage. However, a not uncommon feature of these breaches of planning laws was a “personal gain” aspect that did not necessarily translate into a direct financial advantage. For example, in Cowra Shire Council v Fuller , the offender’s demolition of a rural homestead of heritage significance was “planned and deliberate” to “prevent the Prosecutor from issuing an Interim Heritage Order or listing the building as a heritage item”. This allowed the offender to replace the original building with a new residence. 576 Penalties In 63 cases, a fine was the penalty ordered. In eight cases (10%), an Additional Order — typically for the convicted offender to undertake remediation work — was ordered as well as a fine. In addition, five defendants were given s 10 dismissals and one was given a s 10 bond. One s 10A conviction without further penalty was imposed. Three of the s 10 dismissals were associated with the defendant also receiving a remediation order of some type. 574 Protection of the Environment Legislation Amendment Act 2011, Sch 2, cl [14], amended s 215(2) by replacing the reference to “200 penalty units” with “1,000 penalty units” (effective 6 February 2012). Section 215(2) (as amended) provides: “If any such proceedings are brought in the Local Court, the maximum monetary penalty that the Court may impose for the offence is 1,000 penalty units, despite any other provision of this Act”. One penalty unit is $110: CSP Act , s 17. 575 The regulation of planning and development also includes an emphasis on proper certification and accreditation under ss 81A and 109E of the EPA Act ; see, for example, Council of the Municipality of Kiama v Micallef [2009] NSWLEC 202 per Sheahan J at [13]. 576 [2015] NSWLEC 13 per Pain J at [15]. Pain J further noted at [16]: “The reason for committing the offence was to facilitate the construction of a new dwelling on the same property. The construction of that dwelling was not permissible under the 1990 LEP unless the Shiel homestead was demolished. While not direct financial gain there was a significant personal gain to the Defendant (subs (o))”. The Shiel homestead “possessed rare heritage significance at the local level”: at [47]. The defendant was fined $175,000 plus costs: at [37].