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Contents (1979 - 203)
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Environmental Planning and Assessment Act 1979 No 203
Current version for 1 July 2019 to date (accessed 22 August 2019 at 06:04)
Part 9 Division 9.6
Division 9.6 Criminal offences and proceedings
9.50   Offences against this Act and the regulations
(cf previous s 125)
(1)–(3)    (Repealed)
(3A)  A person who:
(a)  aids, abets, counsels or procures another person to commit, or
(b)  conspires to commit,
an offence against this Act or the regulations arising under any other provision is guilty of an offence against this Act or the regulations arising under that provision and is liable, on conviction, to the same penalty applicable to an offence arising under that provision.
(4)  It is a sufficient defence to a prosecution for an offence that arises from the failure to comply with a development control order if the defendant satisfies the court that the defendant was unaware of the fact that the matter in respect of which the offence arose was the subject of an order.
(5)  Unless the context otherwise requires, a requirement under this Act or the regulations that must be complied with by a particular time, or within a particular period, continues after the time has expired or the period ended, and so must still be complied with.
9.51   Maximum monetary penalty—Tier 1, Tier 2 or Tier 3
If Tier 1, Tier 2 or Tier 3 is specified as the maximum monetary penalty at the end of a provision (or a number of provisions) of this Act, a person who contravenes or fails to comply with that provision (or those provisions) is guilty of an offence and liable to a monetary penalty not exceeding the relevant penalty specified in the following sections. If a period of imprisonment is also specified, the person is also liable to imprisonment not exceeding the period so specified.
9.52   Maximum penalty—Tier 1
(cf previous s 125A)
(1)  If Tier 1 is specified as the maximum monetary penalty at the end of a provision (or a number of provisions) of this Act, a person who contravenes or fails to comply with that provision (or those provisions) is guilty of an offence and (subject to subsection (2)) liable to a penalty not exceeding:
(a)  in the case of a corporation:
(i)  $5 million, and
(ii)  for a continuing offence—a further $50,000 for each day the offence continues, or
(b)  in the case of an individual:
(i)  $1 million, and
(ii)  for a continuing offence—a further $10,000 for each day the offence continues.
(2)  A Tier 1 maximum monetary penalty applies only if the prosecution establishes (to the criminal standard of proof):
(a)  that the offence was committed intentionally, and
(b)  that the offence:
(i)  caused or was likely to cause significant harm to the environment, or
(ii)  caused the death of or serious injury or illness to a person.
For the Tier 1 maximum monetary penalty to apply, the court attendance notice or application commencing the proceedings must allege that those factors apply to the commission of the offence.
(3)  If a Tier 1 maximum monetary penalty is specified in this Act but does not apply because of subsection (2), then a Tier 2 maximum penalty applies instead.
(4)  If a period of imprisonment is also specified, the person is also liable to imprisonment not exceeding the period so specified.
9.53   Maximum penalty—Tier 2
(cf previous s 125B)
(1)  If Tier 2 is specified as the maximum penalty at the end of a provision (or a number of provisions) of this Act, a person who contravenes or fails to comply with that provision (or those provisions) is guilty of an offence and liable to a penalty not exceeding:
(a)  in the case of a corporation:
(i)  $2 million, and
(ii)  for a continuing offence—a further $20,000 for each day the offence continues, or
(b)  in the case of an individual:
(i)  $500,000, and
(ii)  for a continuing offence—a further $5,000 for each day the offence continues.
(2)  If a period of imprisonment is also specified, the person is also liable to imprisonment not exceeding the period so specified.
9.54   Maximum penalty—Tier 3
(cf previous s 125C)
(1)  If Tier 3 is specified as the maximum penalty at the end of a provision (or a number of provisions) of this Act, a person who contravenes or fails to comply with that provision (or those provisions) is guilty of an offence and liable to a penalty not exceeding:
(a)  in the case of a corporation:
(i)  $1 million, and
(ii)  for a continuing offence—a further $10,000 for each day the offence continues, or
(b)  in the case of an individual:
(i)  $250,000, and
(ii)  for a continuing offence—a further $2,500 for each day the offence continues.
(2)  If a period of imprisonment is also specified, the person is also liable to imprisonment not exceeding the period so specified.
Note.
 Section 10.13 provides that the regulations may create offences and impose a maximum monetary penalty for an offence against the regulations not exceeding $110,000.
9.55   (Repealed)
9.56   Additional provisions relating to penalties
(cf previous s 126)
(1), (2)    (Repealed)
(2A)  Part 8.3 of the Protection of the Environment Operations Act 1997 (Court orders in connection with offences) applies to an offence against this Act or the regulations in the same way as it applies to an offence against that Act or the regulations under that Act, but only in relation to proceedings before the Court and subject to any modifications prescribed by the regulations under this Act.
Note.
 An offence under section 251 of that Act in relation to an order will become an offence against this Act.
(3)  Where a person is guilty of an offence involving the destruction of or damage to a tree or vegetation, the court dealing with the offence may, in addition to or in substitution for any pecuniary penalty imposed or liable to be imposed, direct that person:
(a)  to plant new trees and vegetation and maintain those trees and vegetation to a mature growth, and
(b)  to provide security for the performance of any obligation imposed under paragraph (a).
(4)  In determining the sentence for a person who has previously been found guilty of an offence that arises from a failure to comply with a brothel closure order within the meaning of Part 3 of Schedule 5 or the unlawful use of premises for the purposes of a brothel, a court must take into account the fact of the previous offence as an aggravating factor and is, accordingly, to impose a higher sentence than it would otherwise impose.
9.57   Proceedings for offences
(cf previous s 127)
(1)  Proceedings for an offence against this Act may be taken before the Local Court or before the Court in its summary jurisdiction.
(2)  Proceedings for an offence against the regulations may be taken before the Local Court.
(3)  If proceedings in respect of an offence against this Act are brought in the Local Court, the maximum monetary penalty that the court may impose in respect of the offence is, notwithstanding any other provisions of this Act, 1,000 penalty units or the maximum monetary penalty provided by this Act in respect of the offence, whichever is the lesser.
(4)  If proceedings in respect of an offence against this Act are brought in the Court in its summary jurisdiction, the Court may impose a penalty not exceeding the maximum penalty provided by this Act in respect of the offence.
(5)  Proceedings for an offence against this Act or the regulations may be commenced not later than 2 years after the offence was alleged to be committed.
(5A)  However, proceedings for any such offence may also be commenced within, but not later than, 2 years after the date on which evidence of the alleged offence first came to the attention of:
(a)  in relation to proceedings for an offence instituted by or with the consent of the Planning Secretary or a member of staff of the Department—any investigation officer who is a member of the staff of the Department, or
(b)  in relation to proceedings for an offence instituted by or with the consent of a council or a member of staff of a council—any investigation officer who is a member of the staff of that council, or
(c)  in relation to proceedings for an offence instituted by any other person—any investigation officer.
In this subsection, investigation officer means an investigation officer within the meaning of Division 9.2, whether or not the person has the functions of an investigation officer in connection with the offence concerned.
(5B)  If subsection (5A) is relied on for the purpose of commencing proceedings for an offence, the information or application must contain particulars of the date on which evidence of the offence first came to the attention of any such investigation officer and need not contain particulars of the date on which the offence was committed. The date on which evidence first came to the attention of any such investigation officer is the date specified in the information or application, unless the contrary is established.
(5C)  This section applies despite anything in the Criminal Procedure Act 1986 or any other Act.
(6)    (Repealed)
(7)  A person shall not be convicted of an offence against this Act or the regulations where the matter constituting the offence is, at the date upon which the conviction would, but for this subsection, be made:
(a)  the subject of proceedings under section 9.45, which proceedings have not been concluded, or
(b)  the subject of an order made under section 9.46.
(8)  Nothing in subsection (7) precludes a conviction being made where the proceedings referred to in paragraph (a) of that subsection are concluded otherwise than by the making of an order under section 9.46.
9.58   Penalty notices for certain offences
(cf previous s 127A)
(1)  An authorised person may serve a penalty notice on a person if it appears to the authorised person that the person has committed an offence under this Act or the regulations, being an offence prescribed by the regulations.
(2)  A penalty notice is a notice to the effect that, if the person served does not wish to have the matter determined by a court, the person may pay, within the time and to the person specified in the notice, the amount of penalty prescribed by the regulations for the offence if dealt with under this section.
(3)  A penalty notice:
(a)  may be served personally or by post, or
(b)  if it relates to an offence involving the use of a vehicle, may be addressed to the owner (without naming the owner or stating the owner’s address) and may be served by leaving it on or attaching it to the vehicle.
(4)  If the amount of penalty prescribed for an alleged offence is paid under this section, no person is liable to any further proceedings for the alleged offence.
(5)  Payment under this section is not regarded as an admission of liability for the purpose of, and does not in any way affect or prejudice, any civil claim, action or proceeding arising out of the same occurrence.
(6)  The regulations may:
(a)  prescribe an offence for the purposes of this section by specifying the offence or by referring to the provision creating the offence, and
(b)  prescribe the amount of penalty payable for the offence if dealt with under this section, and
(c)  prescribe different amounts of penalties for different offences or classes of offences, and
(d)  prescribe different amounts of penalties for the same offence, including, in the case of a continuing offence, different amounts of penalties for different periods during which the offence continues.
(7)  The amount of a penalty prescribed under this section for an offence must not exceed the maximum amount of penalty which could be imposed for the offence by a court.
(8)  This section does not limit the operation of any other provision of, or made under, this or any other Act relating to proceedings which may be taken in respect of offences.
(9)  In this section, authorised person means a person who is declared by the regulations to be an authorised person for the purposes of this section or who belongs to a class of persons so declared.