Item 7.2 - Attachment 1 |
Enforcement Policy |
Regulatory Service
Enforcement
Policy
(Draft)
CONTENTS
1.
INTRODUCTION 2
1.1 Title
2
1.2
Commencement 2
1.3
Purpose 2
1.4
Policy Statement 2
1.5 Aim 2
1.6
Application 2
1.7
Delegations 3
1.8
Definitions 3
2.
BACKGROUND 5
2.1
Submitting complaints or requests 5
2.2
Procedural fairness and natural justice 6
2.3
Options for dealing with unlawful activity 6
2.3.1
Criminal proceedings 7
2.3.2
Civil proceedings 8
2.3.3
Criminal v Civil? 9
3.
WHEN WILL COUNCIL COMMENCE ENFORCEMENT ACTION? 9
3.1 The
nature and seriousness of the breach 9
3.2
Balancing of public interest and cost to Council 9
3.3 The
available methods of enforcement 10
3.4 The
circumstances of each case 10
4. DECIDING ON THE METHOD OF ENFORCEMENT 12
4.1 PINs 12
4.2
Consents, Orders and Building Certificates 12
4.3 Land
& Environment Court proceedings 13
5. RECOVERY OF LEGAL COSTS 14
6. COMMUNITY AWARENESS 15
7. ACKNOWLEDGEMENTS 15
Page
numbers to be confirmed when formatted
1. INTRODUCTION
1.1 Title
This
document is called “Parramatta City Council’s Enforcement Policy”.
1.2 Commencement
Commences
on DATE.
1.3 Purpose
The
purpose of this policy is to assist Council staff to act promptly, consistently
and effectively in response to allegations of unlawful activity associated with
Council’s investigation of illegal and unlawful activities.
1.4 Policy Statement
Council
is strongly opposed to unlawful activity at any time or under any
circumstances. Council will initiate enforcement action in accordance with this
policy document.
1.5 Aim
The
aim of this policy is to establish guidelines for the exercise discretion that
Council must use in dealing with unlawful activity, taking into account all
relevant information including the available evidence, cost to the community,
the circumstances of the individual case and public policy and precedent
considerations.
• Provides a legal and
administrative framework to assist Council in making decisions in its
enforcement functions;
• Specifies the 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.
• Provides information to the
public about the Council’s role and policy on enforcement; and
• Ensures that the enforcement
process is conducted with maximum speed and minimal delay.
1.6 Application
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.
1.7 Delegations for enforcement action
Council
officers that deal with requests or complaints alleging unlawful activity are
responsible for implementing this procedure.
Officers
delegated to initiate various levels of enforcement action are set out in
Council's Instrument of Delegation and sub-delegation to Council officers.
Determinations
regarding enforcement action will be made in accordance with this policy and
relevant Delegation criteria.
1.8
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:
q Have delegation to enter premises and carry out
investigations as specified in Council's Instrument of Delegations and sub
delegations;
q Be authorised by Council where this is required
under specific legislation to permit inspections on private property;
q Carry photographic identification demonstrating
authorisation to enter premises and private lands under each specific Act; and
q 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.
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.
2. BACKGROUND
Council becomes aware of unlawful activities in a variety of
ways, from the proactive actions receipt of complaints or requests from members
of the public.
Council staff will identify breaches when appointed as the
Principal Certifying Authority for development and building works and in our development
enforcement, environmental protection, public health roles, Rangers and Parking
Enforcement Officers roles.
As a result of identifying breaches Council officers may
initiate education, enforcement or legal action in accordance with their
delegations.
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.
2.1
Submitting complaints or service requests
Complaints
or service requests alleging unlawful activity can be submitted to Council in
writing, verbally or electronically. In all case 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 the Freedom of Information Act 1989 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 do not investigate complaints
where:
· Council has no jurisdiction, ie. dividing fences, private strata
matters.
· The activity alleged to be unlawful is in fact determined to be lawful
without an investigation required.
· The complaint is frivolous, vexatious or trivial in nature.
· The complaint is anonymous, except where the complaint relates serious
environmental harm, public safety or life threatening matter.
· Another agency is responsible for the investigation.
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 where appropriate or requested.
2.2
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; and
• Otherwise act fairly and without bias.
2.3
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;
The above options (a) to (d) may be all that is
required in minor breaches where no serious impacts have occurred.
Unless urgent action is required a staged approach
to obtain compliance will be applied. That is, in the first instance, offenders
will be given the opportunity to discuss and remedy the breach before
enforcement action is taken.
Where the above options (a) to (d) are
inappropriate and/or unsuccessful, alternate enforcement action may include the
following options (e) to (g) options
e) Issuing of a formal Notice and Order
f) Commence criminal proceedings or issuing of
a PIN; and
g) Commence civil proceedings to remedy or
restrain unlawful activity.
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.
2.3.1 Criminal Proceedings
Criminal
proceedings are punitive. The sentence which a court may impose if an offence
is proven is usually a fine.
The
amount of a fine imposed by a court will be based on the need for specific
deterrence and the rehabilitation of the offender, the need for general
deterrence of similar offences by other members of the community and any
aggravating or mitigating circumstances.
The types of criminal proceedings available to
Council include;
• Issuing a PIN;
• Prosecuting the offence in the
• Prosecuting the offence in the Land &
Environment Court in its summary jurisdiction (Class 5)
In criminal proceedings an offence must be proved
‘beyond a reasonable doubt’.
PINs for offences currently vary on whether the offender is
an individual or a corporation and the nature of the unlawful activity. PIN can
only be issued under the relevant
delegation. The offender can either pay the fine stated on a PIN or elect to have the matter heard before a
court.
Where prosecution action is taken rather than the
issuing of a PIN, the maximum penalty is usually considerably higher. However, if the offence is
prosecuted in the
In
criminal proceedings for offences against the EPAA there is often no provision
which enables the Court to order the offender to remedy the breach or restrain
the unlawful activity. These powers are available to the court in some other
kinds of cases, for example, offences against the EPAA involving the
destruction of or damage to a tree or vegetation or in appropriate cases where
an offence is committed against the POEO or the regulations under that Act.
A
person cannot be convicted of an offence against the EPAA or the regulations
where;
• the matter is the subject of civil proceedings
under Section 123 of the EPAA and those proceedings have not been concluded; or
• an Order of the Court has been made to remedy
or restrain the breach.
(Section
127(7) of the EPPA)
These
restrictions, and the practice of the court, usually favour civil proceedings
being taken where it is necessary to remedy or restrain an unlawful activity.
Criminal proceedings for an offence against the
EPAA must be commenced within two (2) years of the offence being committed or
within two (2) years from the date when evidence of the offence first came to
the attention of an authorised officer. (Section 127(5), (5A), (5B) & (5C)
of the EPPA)
2.3.2 Civil Proceedings
The
objective of civil proceedings is to rectify the consequences of, or restrain
an unlawful activity, by requiring the offender to do or refrain from doing
something. Civil proceedings include the following;
• 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.
For
civil proceedings to be successful Council must prove the breach on the balance
of probabilities. This is a less onerous burden of proof than is required in a
criminal prosecution. However, even if the breach is established, the court has
discretion not to make any order. Council must therefore be in a position to
lead evidence that persuades the court that an order to remedy or restrain the
breach should be made.
Civil
proceedings can be held over to provide the person responsible for the unlawful
activity with an opportunity to lodge any required application and have it
determined or otherwise to cease or remedy the breach voluntarily.
2.3.3 Criminal or Civil?
Deciding
whether to commence criminal or civil proceedings depends on the outcome that
is being sought. If Council were willing, retrospectively, to accept the
results of the unlawful activity or if the unlawful activity can not be undone
or is not ongoing and Council wishes to punish the offender, criminal
proceedings may be preferred subject to the considerations detailed below.
Conversely,
if Council is not willing to accept the unlawful activity (and particularly for
alleged offences against the EPAA where the court may not have any jurisdiction
to make an ancillary order requiring rectification of the unlawful activity),
it is often more appropriate for Council to commence civil proceedings.
If Council decides not to commence proceedings
under the EPAA, LGA or POEO, any person may commence their own proceedings for
an order to remedy or restrain a relevant breach. (Section 123 of the EPAA;
Section 674 of the LGA; Section 253 of the POEO)
3. WHEN WILL
COUNCIL COMMENCE ENFORCEMENT ACTION?
Council will decide whether to take enforcement action after
it has considered, among other things, the following matters:
3.1 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.
3.2 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.
3.3 The available methods of enforcement
If formal proceedings are considered to be the best option,
the decision on which court to bring 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.
3.4 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 on the natural or built environment and on 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?
4. 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.
4.1 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.
PINs may be used in conjunction with other enforcement
action, as permitted by the applicable legislation.
4.2 Consents, Orders and Building Certificates
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.
Enforcement action of this nature may occur 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.
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.
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 prosecution in the Courts.
Consideration will be
given to whether a breach can be rectified by a consent or building certificate
or whether enforcement can be achieved by way of any Order under the relevant
legislation.
4.3 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 in the Land &
Environment Court 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?; and
· The cost of proceedings.
· 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.
5. RECOVERY OF
LEGAL COSTS
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.
Recovery of investigation cost
Council will
recover cost were 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.
6.
COMMUNITY AWARENESS
The Council will carry out a community
awareness campaign about enforcement by the publication of press releases, by
the publication of a pamphlet, and by providing information on its website.
7.
ACKNOWLEDGEMENTS
This policy is based on the ‘Model
Policy’ developed by the NSW Ombudsman.