Item 8.1 - Attachment 2 |
Enforcement Policy |
Regulatory
Services
Enforcement
Policy
Policy
Number ###
Contents:
1. BACKGROUND
2. OBJECTIVE
3. SCOPE
4. RELATIONSHIP
TO LEGISLATIONS
5. RELATED
STRATEGIES, PLANS OR POLICIES
6. DEFINITIONS
7. DEALING WITH UNLAWFUL
ACTIVITIES
7.1 Submitting complaints or requests
7.2 Procedural
fairness and natural justice
7.3 Options for dealing with unlawful activity
7.4 Criminal proceedings
7.5 Civil proceedings
7.8 Criminal v Civil?
8. WHEN
WILL COUNCIL COMMENCE ENFORCEMENT ACTION?
8.1 The nature and seriousness of the breach
8.2 Balancing of public interest and cost to Council
8.3 The available methods of enforcement
8.4 The circumstances of each case
9. DECIDING ON THE METHOD OF ENFORCEMENT
9.1 PINs
9.2 Consents, Orders and Building Certificates
9.3 Land & Environment Court proceedings
10. RECOVERY OF
LEGAL COSTS
11. APPENDICES
12. ADMINISTRATION
1. BACKGROUND
The
purpose is to provide an overarching policy for a suite of enforcement policies
to assist Council staff to act promptly, consistently and effectively in
response to enforcement matters. Council
staff respond to numerous complaints and allegations of unlawful activity
associated with relevant legislative controls administered by Council. Council also undertakes proactive measures
identifying illegal and unlawful activities through routine and programmed
inspections.
Council
has a clear obligation to investigate and properly record all complaints and
the policy provides clear guidelines for an effective complaint handling
systems that allows staff to deal with complaints consistently and effectively,
providing a clear and transparent decision making process.
Council
is strongly opposed to unlawful activity at any time or under any
circumstances. Council will initiate the appropriate enforcement action in
accordance with this policy document.
The types of enforcement activity may be taking no formal action,
issuing warnings, providing an educational role or instigating criminal or civil legal action.
2. Objective
The
aim of this policy is to establish fair, impartial and equitable guidelines for
the exercise of discretion that Council must use in dealing with unlawful
activities, taking into account all relevant information including the
available evidence, cost to the community, the circumstances of the individual
case, public policy and precedent considerations.
The policy provides a legal and administrative framework to
assist Council in making decisions in its enforcement functions and ensures
that the enforcement process is conducted in a timely and efficient manner.
The aim is to provide specific criteria which the Council
will take into consideration when deciding options for dealing with unlawful
activity:
(a) if enforcement action is
necessary; and
(b) the most appropriate type of
action.
The policy also provides information to the public about the
Council’s role and policy on enforcement.
3. Scope
This
policy applies to the investigation and enforcement of identified unlawful
activity or failure to comply with terms or conditions of approvals, licences
and orders. While it is primarily directed at the regulation of development
activity, the policy may also be applied to other matters such as pollution
control, regulation of parking and animal control, where applicable.
4. Relationship to
Legislations
The following acts and regulations are the guiding legislation for
regulatory matters they include and are not limited to;
The Local Government Act 1993& Regulations
The Environmental Planning & Assessment Act 1979 & Regulations
The Public Health Act 1991& Regulations
The Food Act 2003 & Regulations
The Swimming Pool Act 1992
Roads Transport Act 1993& Regulations
Impounding Act 1993& Regulations
Companion Animals Act 1997& Regulations
POEO Act 1997 and regulations
Noxious weeds Act 1993
Recreational Vehicles Act 1983
Rural Fires Act 1997
Waste Avoidance and Resources Recovery Act 2001
5. Related Strategies, Plans or Policies
Delegations, Determinations
regarding enforcement action will be made in accordance with this policy and
relevant delegation criteria including all relevant acts and regulations as
defined under delegation.
Parking policy
Standard Operating Procedures
6. Definitions
The
following defined terms are used in the policy:
Authorised Officer: A Parramatta City Council staff member with
delegate authority to authorise certain Council officers under relevant
legislation in order for them to carry out their duties and take necessary
action.
All Council officers that carry out inspections
on private land for regulatory purposes will:
· Have
delegation to enter premises and carry out investigations as specified in
Council's Instrument of Delegations and sub delegations;
· Be
authorised by Council where this is required under specific legislation to
permit inspections on private property;
· Carry
photographic identification demonstrating authorisation to enter premises and
private lands under each specific Act; and
· Carry
documentation or certificates of authority where required by the legislation
being implemented.
Court Attendance Notice (CAN): Means a court attendance notice issued and filed in accordance with
the Criminal Procedure Act 1986. A CAN may be used to commence summary
proceedings in the local court. A CAN specifies the offence and its essential
particulars as well as the address of the court where the matter is to be
heard. If a person does not attend court on the day specified in a CAN, a
warrant may be issued for the arrest of the person or the matter may be dealt
with in the absence of the person.
Defendant: means the accused
person against whom criminal proceedings are brought.
EPAA:
means
the Environmental Planning and Assessment Act 1979.
GIPA means Government Information Public Access Act.
LGA: means
the Local Government Act 1993.
Penalty
Infringement Notice (PIN): means penalty infringement notice.
Sometimes referred to as an ‘on-the-spot’ fine. PINs may only be issued for
prescribed offences and the value of the fine is also prescribed by
legislation.
POEO:
means
the Protection of the Environment Operations Act 1997.
Respondent: means the party against whom civil proceedings
are brought in Land & Environment Court proceedings.
Unlawful activity: means
any activity or work that has been or is being carried out;
• contrary to a legislative provision regulating
a particular activity or work;
• contrary to an environmental planning
instrument that regulates the activities or work that can be carried out on
particular land;
• without a required development consent,
approval, permission, direction, permit or licence; and/or
• contrary to the terms or conditions of a
development consent, approval, permit or licence.
Criminal Proceedings: Criminal proceedings include
• Issuing a PIN;
• Prosecuting the offence in the
• Prosecuting the offence in the Land &
Environment Court in its summary jurisdiction (Class 5)
Civil
Proceedings; Civil Proceeds include
• Notices and orders issued by Council pursuant
to various legislation;
• Class 4 proceedings before the Land &
Environment Court, seeking an order of the Court to remedy or strain a breach
of the EPAA (Section 123), the LGA (Section 673), the POEO (Sections 252 &
253), or any other Act, if the breach is causing or is likely to cause harm to
the environment; and
• Interlocutory relief for matters causing, or
with the reasonable potential to cause, serious environmental harm. In such
proceedings it is likely the Council would be required to provide an
undertaking as to damages.
7. Dealing with
unlawful activities
Council becomes aware of unlawful activities in a variety of
ways, they include requests from members of the public, customers or dealing
with matters as part of Council general regulatory roles. These roles include proactive measures,
acting as the Principal Certifying Authority for development and building
works, development enforcement, environmental protection, public health, Community
Law Enforcement roles and during regular enforcement programs to enforce relevant
legislation.
Council officers who are not involved directly in enforcement
matters may also commonly identify potential unlawful activities and report
them for investigation and action pursuant to this policy. Nevertheless, not
all offences are readily discernible and early detection can only be achieved
with support and direct advice from our community. As a result of identifying
breaches Council officers may initiate education, enforcement or legal action
in accordance with this policy and their delegations
7.1 Submitting
complaints or service requests
Complaints
or service requests alleging unlawful activity can be submitted to Council in
writing, verbally or electronically. In all cases the allegation will be
recorded in Council’s computerised customer service request management system
and will be allocated a unique reference number.
The
request will be referred to the relevant Council officer to commence any
necessary investigation.
The
name, address and contact details of the person submitting the complaint will
also be recorded. This information is critical as Council may need to rely on
evidence from the complainant to prove any alleged offence and commence
enforcement action. Council will advise any complainants of the action, if any,
taken or the reasons why no action was taken in the circumstances.
Council
will take all reasonable measures to protect the privacy of the person
submitting the complaint and generally information on this person will not be
released. However, Council may be required to disclose this information in a
variety of circumstances including the following;
• Access to the information is permitted under
legislation, including GIPA or the LGA;
• Access to the information is permitted under
another Council policy;
• Legal proceedings are commenced and the
information is disclosed in evidence served; and
• The nature of the allegation otherwise makes it
a necessity.
Also,
in some circumstances it may be possible to ascertain the identity of the
person submitting the complaint by the nature of the allegation.
Council officers may not investigate complaints
where determined by Management that:
· Council has no jurisdiction to investigate the complaint, ie. dividing
fences, private strata matters.
· The activity alleged to be unlawful is in fact determined to be lawful.
· The complaint is frivolous, vexatious or trivial in nature.
· Another agency is responsible for the investigation.
All anonymous complaints will be accepted and
considered as to the nature of the complaint, as many residents may wish to
remain anonymous due to mitigating circumstances or fear of retribution. Management will determine if the complaint is
to be investigated using the following criteria;
· There is sufficient relevant information received to investigate the
complaint
· The complaint relates to serious environmental harm, public safety or
life threatening matter.
· The potential risk to the complainant
· Is the complaint frivolous or vexatious?
· Is it in the public interest?
If a decision is made not to investigate a
complaint, this decision must be recorded along with the reasons for that
decision.
Council officers will notify the complainant of the
outcome of Council's investigation.
7.2 Procedural
fairness and natural justice
There
is an overriding duty on the Council to act fairly and ensure the principles of
procedural fairness and natural justice are adhered to. In this regard Council
will;
• Provide information on the substance of the
complaint to the alleged offender. This may not occur until an appropriate
stage in the investigation;
• Provide an opportunity for the alleged offender
to put their case. This will not be necessary if there is a serious risk to
personal or public safety, risk of serious environmental harm or for parking
and road related matters;
• Consider any submission put forward by the
parties to the matter;
• Make reasonable inquiries or investigations
before making a decision;
• Ensure no person decides a case in which they
have an interest;
• Otherwise act fairly and without bias and
· Act within statutory time frames
7.3 Options
for dealing with unlawful activity
Council
has discretion in deciding whether to take enforcement action on the basis of
the available evidence and the circumstances of the individual case. At the
conclusion of an investigation, Council will recommend the most appropriate
course of action that may be one or more of the following options;
a) Take
no action;
b) Counsel
the alleged offender;
c) Issue
a formal letter of warning;
d) Negotiate an undertaking to remedy the situation;
e) Issue of a formal Notice and Order
f) Commence criminal proceedings or issue of a PIN; and
g) Commence civil proceedings to remedy or restrain unlawful
activity.
Unless urgent action is required a staged approach
to obtain compliance will be applied to matters other than parking related
offences. That is, in the first instance, offenders will be given the
opportunity to discuss and remedy the breach before enforcement action is
taken.
Options (a) through to (d) may be all that is
required for minor breaches where no serious impacts have occurred. However where they are ineffective, inappropriate
and/or unsuccessful, alternate enforcement action may be warranted and include options
(e) to (g).
Whilst these options recognise
that Council officers may use discretion in the process, officers are obliged
to act fairly and ensure the principles of procedural fairness and natural
justice are adhered to.
8. WHEN WILL
COUNCIL COMMENCE ENFORCEMENT ACTION?
Council will decide whether to take enforcement action after
it has considered, among other things, the following matters:
8.1 The nature and seriousness of the breach
Council will have regard to the impact the unlawful activity
is causing on amenity or harm to the environment. If action is required,
Council will consider what is reasonable in the circumstances and ensure the
action is not disproportionate to the level of harm or damage arising from the
breach.
8.2 Balancing of public interest and cost to Council
Council will weigh up the public interest or benefits that
will be served against the cost to the Council, and the community, of taking
enforcement action.
In considering the ‘public interest’ Council will have regard
to whether the unlawful activity;
• will impact on a significant
number of people;
• will impact on disadvantaged
or marginalised groups;
• is indicative of a systemic
flaw;
• is individual in nature but
often occurs;
• has attracted sustained public
attention and no alternative resolution is proposed or likely; and
• flouts Council’s authority.
Council will also consider whether more effective means of
rectifying an unlawful activity are available before formal legal proceedings
are initiated. This may include one or a combination of the following:
• Reporting a breach to a
professional association; and
• Use of statutory powers such
as;
- granting consent to a relevant
application;
- making an order under the
EPAA, LGA or POEO; or
- issuing a building certificate
under the EPAA.
8.3 The available methods of enforcement
If formal proceedings are considered to be the best option,
the decision on which to bring court proceedings in will be informed by
considerations such as the following:
• Likely cost of proceedings;
• Prospects of recovery of those
costs from the respondent or defendant;
• Remedies available;
• Available methods of
enforcement; and
• Circumstances of each case.
8.4 The circumstances of each case
The Council will in all
prosecution and enforcement matters consider the following;
• Whether the unlawful activity
has caused a breach which is technical in nature and does not cause harm to
amenity or to the environment;
• Whether the unlawful activity
is ongoing. If it has ceased, Council must consider the length of time that has
expired;
• Whether the impact of the
unlawful activity effects the natural or
built environment, health, safety and amenity;
• Whether development consent or
other approval would have been granted by Council if the appropriate
application had been submitted prior to the unlawful activity being undertaken;
• Whether the person(s) who
committed the breach has shown contrition and, where possible, has remedied the
unlawful activity;
• Whether the person(s) who
committed the breach has made submissions to the Council that provide
reasonable grounds for the Council to conclude that the person was under a
genuine mistaken belief as to a relevant factual or legal matter;
• Whether the person(s) who
committed the breach has shown deliberate or wilful conduct in their actions;
• Whether the person(s) who
committed the breach should have been aware of their obligations because they
have:
- particular knowledge eg: a
builder or company that regularly carries out work and is generally aware of
the relevant Council or other requirements;
- received a previous warning;
or
- been subject to previous
formal legal action.
• Whether the unlawful activity
was unavoidable; and
• Such other matters that may
appear to be relevant to the individual case.
When deciding whether
to take enforcement action, Council officers will consider the circumstances of
the case.
The specific matters
for consideration are contained in Council's internal assessment forms and
include:
· Has council created an estoppel situation?
· Is the breach a technical breach only?
· When was the unlawful works carried out?
· How has the unlawful activity affected the natural
and built environment and health, safety and amenity of the area?
· Would consent have been given if it had been
sought?
· Can the breach be easily remedied?
· Does the person in breach show contrition?
· Are there any particular circumstances of hardship
affecting the complainant or the person the subject of the complaint?
· Has the person the subject of the complaint
received a previous warning or other non-coercive approach or has formal legal
action been taken?
· Would an educative approach be more appropriate
than a coercive approach?
· What are the costs and benefits of taking
enforcement action as opposed to taking informal or no action?
· What are the chances of success if the proposed
enforcement action was challenged in court?
· Is there a draft planning instrument on exhibition
that would make the unauthorised use legal?
· What action would be reasonable and proportionate
in this case?
· What would be in the public interest?
9. DECIDING ON
THE METHOD OF ENFORCEMENT
When deciding on the method of enforcement, it is necessary
to consider the principles explained above in Section 2.3 – ‘Options for
Dealing with Unlawful Activity’ and the outcome being sought.
There are two main types of enforcement action
Criminal and Civil;
Criminal Proceedings;
• Issuing a PIN;
• Prosecuting the offence in the
• Prosecuting the offence in the Land &
Environment Court in its summary jurisdiction (Class 5)
Civil Proceedings
• Notices and orders issued by Council pursuant
to various legislation;
• Class 4 proceedings before the Land &
Environment Court, seeking an order of the Court to remedy or strain a breach
of the EPAA (Section 123), the LGA (Section 673), the POEO (Sections 252 &
253), or any other Act, if the breach is causing or is likely to cause harm to
the environment; and
• Interlocutory relief for matters causing, or
with the reasonable potential to cause, serious environmental harm. In such
proceedings it is likely the Council would be required to provide an
undertaking as to damages.
9.1 PINs
PINs will be issued for offences of a minor nature, where it
is considered a small monetary penalty may prevent a recurrence of the unlawful
activity or stop the unlawful activity from continuing. The issuing of a PIN
will only occur where a decision has been made not to commence other criminal
proceedings and if the Council has obtained, or could obtain sufficient
evidence in admissible form to prove the offence beyond reasonable doubt in any
subsequent criminal proceedings. A PIN can only be issued where it appears to
the issuer that the defendant has committed the relevant offence.
PINs should be issued as soon as possible after the
conclusion of an investigation and may be used in conjunction with other
enforcement action, as permitted by the applicable legislation.
9.2 Consents, Orders and Building Certificates
Council recognises that a person who may have
carried out unlawful works may apply for a Building Certificate under S149D of
the EP&A Act to formalise the unlawful work. However such applications
should not be encouraged to justify unlawful works.
Consideration will be given to whether a breach can be
rectified by a consent or building certificate or whether enforcement can occur
by way of an order under the EPAA, LGA, POEO or some similar means.
The Orders provisions of the EPAA, LGA and POEO are described
as “self-help” provisions that provide Council with a formal cost
effective mechanism to direct land owners and occupiers to do or refrain from
doing something. They generally operate on the ‘principles of natural justice’
and, where appropriate, should be used prior to the commencement of civil
proceedings in the Land & Environment Court.
Irrespective of whether or not a Building
Certificate is applied for, Council may take action against a person who
carried out unlawful work. Such action may include the issue of a Penalty
Notice or in
conjunction with criminal proceedings, where it is considered appropriate and
necessary for punitive action to also be taken, having regard to the
restrictions provided under Section 127(7) of the EPAA.
9.3 Land &
Council will give preference to civil proceedings in the Land
& Environment Court over criminal prosecution in either the Local Court or
the Land & Environment Court where Council requires the offender to do or
refrain from doing something, such as comply with a development consent or
demolish unauthorised works.
Generally civil proceedings will be preceded by formal
notices and/or orders, unless the circumstances warrant the immediate
commencement of court proceedings.
The following matters will be considered in
determining whether to commence civil or criminal proceedings in the Land and
· Is there a liable Respondent?
· Does Council have sufficient evidence to prove its case either on the
"balance of probabilities" (civil) or "beyond reasonable
doubt" (criminal)?
· Does Council require an Order from the Court restraining the respondent
from doing something or ordering the respondent to remedy the breach?
· Is an injunction required because
the unlawful activity is causing serious, or has the potential to cause,
serious environmental harm;
· Is the matter urgent?
· The severity of the
offence;
· Is the respondent a
repeat offender?;
· The cost of proceedings
and
· Does the development
breach non-standard conditions of consent.
The following matters will be considered in
determining whether to commence criminal proceedings in the
· Is there a liable defendant?
· Is a monetary penalty all that is required?
· Does Council have sufficient evidence to prove its case "beyond
reasonable doubt"?
· Are works proceeding - (is a Court Attendance Notice needed)?;
· The severity of the offence;
· Is the defendant a repeat offender?; and
· The cost of proceedings.
10. RECOVERY OF
LEGAL COSTS
Recovery of investigation cost
Council will recover cost where
available through legislation requirements such as under the POEO for clean up
notice including administrative charges and the EP&A Act for investigation
of complaints.
The Council’s policy for recovery of
its costs in the Land and
· That the
Council will seek to recover its fair and reasonable costs in all matters where
costs are recoverable, either by consent or by order of the court;
· The Council
will seek to recover the penalty imposed by the court where such penalty is
imposed; and
· The Council
will adopt the recommendations of its solicitors to accept a lesser amount than
the full legal costs incurred by the Council if, in the circumstances, the
acceptance of such an offer will result in the Council not incurring further
and unnecessary legal costs.
The Council’s policy for recovery of
costs in the
· That the
Council will seek to recover its fair and reasonable costs in all matters where
costs are recoverable, either by consent or by order of the court; and
· The Council
will seek to recover the penalty imposed by the court where such penalty is
imposed.
11. Appendices
12. Administration
This policy is based on the ‘Model
Policy’ developed by the NSW Ombudsman and shall be read in conjunction with all
relevant Council policies. The
Regulatory Enforcement Policy has been
created as an overall guiding document for all enforcement matters within the
Regulatory Service Unit. The policies
and procedure will form a suite of documents for all regulatory matters. As legislation changes and issues arise
policies and procedures will be developed to assist Council in managing the
roles and responsibilities within the Regulatory Service Unit
Policy
hierarchy chart
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Manager
Regulatory Services