Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 No 43
Repealed version for 24 November 2005 to 19 June 2006 (accessed 9 August 2020 at 01:15)
Schedule 5
Schedule 5 Enforcement amendments
(Section 3)
[1]   Part 6, Division 1A, heading
Omit the heading. Insert instead:
Division 1A  Local enforcement powers
[2]   Section 118A Power of entry
Omit section 118A (2) and (2A).
[3]   Sections 118B, 118C (3) (c), 118D, 118E (2), 118F (1), 118G, 118H, 118I (2), 118K (1) and 118L (1)
Omit “, the Minister or the Director-General” wherever occurring.
[4]   Section 118B Inspections and investigations
Omit “, the Minister’s or the Director-General’s”.
[5]   Section 118C Notice of entry
Omit “, the Minister, the Director-General” from section 118C (1).
[6]   Section 118E Notification of use of force or urgent entry
Omit “, Minister or Director-General (whichever authorised the person to enter the premises under section 118C (3) or 118D (1))”.
[7]   Section 118R (5)
Omit “by the Director-General”.
[8]   Section 121A Definitions
Insert in alphabetical order:
  
consent authority includes, in the case of a project to which Part 3A applies, the Minister.
development consent includes, in the case of a project to which Part 3A applies, an approval under that Part to carry out the project.
[9]   Section 121B Orders that may be given by consent authority or by Minister etc
Insert before section 121B (1) (a):
  
(aa)  the Minister or the Director-General (but only in connection with a project to which Part 3A applies), or
[10]   Section 121B (1), Table
Insert at the end of the Table to section 121B (1):
  
18
To do or refrain from doing any act to remedy or restrain a breach of Part 3A or of an approval under that Part
The breach has occurred, is occurring or is likely to occur
The person who caused, is causing or is likely to cause the breach, or the person entitled to act on the approval
[11]   Section 121B (3)
Insert after section 121B (2):
  
(3)  An order under item 18 of the Table to subsection (1) may only be given by the Minister or the Director-General.
[12]   Section 121D Circumstances in which compliance with secs 121F–121K is required
Insert at the end of section 121D (b):
  
, or
(c)  an order given by the Minister or the Director-General in connection with a project to which Part 3A applies.
[13]   Section 121O Development consent or approval not required to comply with order
Insert “Part 3A for approval or” before “Part 4”.
[14]   Section 121ZF Modification of orders
Omit “if the person”.
Insert instead “but, except in the case of an order given by the Minister or the Director-General, only if the person”.
[15]   Section 121ZG Revocation of orders
Insert before section 121ZG (1):
  
(1A)  An order given by the Minister may be revoked by the Minister at any time, and an order given by the Director-General may be revoked by the Minister or the Director-General at any time.
[16]   Section 121ZQ
Insert after section 121ZP:
  
121ZQ   Continuing effect of orders
(1)  An order that specifies a time by which, or period within which, the order must be complied with continues to have effect until the order is complied with even though the time has passed or the period has expired.
(2)  This section does not apply to the extent that any requirement under an order is revoked.
[17]   Part 6, Divisions 2B and 2C
Insert before Division 3 of Part 6:
  
Division 2B Monitoring and environmental audits—approved projects
122A   Application of Division
(1)  This Division applies to the carrying out of a project approved under Part 3A.
(2)  This Division does not affect the other provisions of this Act.
122B   Nature of monitoring and environmental audits
(1)  For the purposes of this Division, monitoring of a project is the monitoring of the carrying out of the project to provide data on compliance with the approval of the project or on the project’s environmental impact.
(2)  For the purposes of this Division, an environmental audit of a project is a periodic or particular documented evaluation of an approved project to provide information to the proponent of the project and to the persons administering this Act on compliance with the approval of the project or on the project’s environmental management or impact.
(3)  A reference in this section to compliance with the approval of a project includes a reference to compliance with:
(a)  the conditions to which the approval of the project is subject, and
(b)  the requirements of this Act and of relevant provisions of any other Act referred to in Division 4 of Part 3A.
122C   Minister may require monitoring or environmental audits by imposition of conditions on approved project
(1)  The Minister may, by the imposition of conditions on the approval for a project, require monitoring or an environmental audit or audits to be undertaken to the satisfaction of the Minister by the proponent of the project.
(2)  A condition requiring monitoring or an environmental audit may be imposed at the time the approval for the project is given or at any other time by notice in writing to the proponent of the project.
(3)  Any such condition imposed by notice may be varied or revoked by a similar notice.
122D   Provisions relating to conditions for monitoring and environmental audits
(1)  A condition requiring monitoring may require:
(a)  the provision and maintenance of appropriate measuring and recording devices for the purposes of the monitoring, and
(b)  the analysis, reporting and retention of monitoring data, and
(c)  certification of the monitoring data (including the extent to which the terms and conditions of any approval have or have not been complied with).
(2)  A condition requiring an environmental audit must specify the purpose of the audit. Such a condition may require:
(a)  the conduct of the audit by the proponent or by an independent person or body approved by the Minister or the Director-General (either periodically or on particular occasions), and
(b)  preparation of written documentation during the course of the audit, and
(c)  preparation of an audit report, and
(d)  certification of the accuracy and completeness of the audit report, and
(e)  production to the Minister of the audit report.
122E   Offences
(1) False or misleading information in monitoring or audit report A person must not include information in (or provide information for inclusion in):
(a)  a report of monitoring data, or
(b)  an audit report produced to the Minister in connection with an environmental audit,
if the person knows that the information is false or misleading in a material respect.
(2) Information not included in monitoring or audit report The proponent of an approved project must not fail to include information in (or provide information for inclusion in):
(a)  a report of monitoring data, or
(b)  an audit report produced to the Minister in connection with an environmental audit,
if the proponent knows that the information is materially relevant to the monitoring or audit.
(3) Retention of monitoring data or audit documentation The proponent of an approved project must:
(a)  retain any monitoring data in accordance with the relevant condition of the approval for at least 5 years after it was collected, and
(b)  retain any documentation required to be prepared by the proponent in connection with an environmental audit for a period of at least 5 years after the audit report concerned was produced to the Minister, and
(c)  produce during that period any such documentation on request to an authorised officer under Division 2C.
(4) Penalty Despite section 126, the maximum penalty for an offence under section 125 arising under this Division is:
(a)  in the case of a corporation—$250,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or
(b)  in the case of an individual—$120,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues.
122F   Self-incriminatory information and use of information
(1)  Information must be supplied by a person in connection with a report of monitoring or an environmental audit, and this Division applies to any such information that is supplied, whether or not the information might incriminate the person.
(2)  Any information in monitoring data or in an audit report or other documentation supplied to the Minister in connection with an environmental audit may be taken into consideration by the Minister and used for the purposes of this Act.
(3)  Without limiting the above, any such information:
(a)  is admissible in evidence in any prosecution of the proponent of an approved project for any offence (whether under this Act or otherwise), and
(b)  may be disclosed by the Minister by publishing it in such manner as the Minister considers appropriate.
Division 2C Departmental enforcement powers
Subdivision 1 Preliminary
122G   Purposes for which powers under Division may be exercised
(1)  Powers may be exercised under this Division for the following purposes:
(a)  for enabling the Minister or Director-General to exercise their functions under this Act,
(b)  for determining whether there has been compliance with or a contravention of this Act, the regulations, any environmental planning instrument, any approval under Part 3A or any development consent under Part 4 or any document or requirement issued or made under this Act,
(c)  for obtaining information or records for purposes connected with the administration of this Act,
(d)  generally for administering this Act and securing the objects of this Act.
(2)  Powers are not to be exercised under this Division for the purpose only of investigating the exercise of the statutory functions of a council under this Act.
(3)  Nothing in this Division affects any function under any other part of this Act or under any other Act.
122H   Definitions: Division 2C
In this Division:
authorised officer means a person appointed under section 122I.
occupier of premises means the person who has the management or control of the premises.
records includes plans, specifications, maps, reports, books and other documents (whether in writing, in electronic form or otherwise).
122I   Appointment of authorised officers
(1)  The Director-General may appoint any person (including a class of persons) as an authorised officer for the purposes of this Division.
(2)  An authorisation of a person as an authorised officer can be given generally, or subject to conditions, limitations or restrictions or only for limited purposes.
(3)  Every authorised officer is to be provided with an identification card as an authorised officer by the Director-General.
(4)  In the course of exercising the functions of an authorised officer under this Division, the officer must, if requested to do so by any person affected by the exercise of any such function, produce the officer’s identification card to the person.
Subdivision 2 Powers of entry and search of premises
122J   Powers of authorised officers to enter premises
(1)  An authorised officer may enter:
(a)  any premises at which the authorised officer reasonably suspects that any industrial, agricultural or commercial activities are being carried out—at any time during which those activities are being carried out there, and
(b)  any other premises—at any reasonable time.
(2)  A power to enter premises conferred by this Subdivision authorises entry by foot or by means of a motor vehicle or other vehicle, or in any other manner.
(3)  Entry may be effected under this Subdivision by an authorised officer with the aid of such authorised officers or police officers as the authorised officer considers necessary and with the use of reasonable force.
(4)  Entry may be effected to any premises with the authority of a search warrant under section 122M.
122K   Entry into residential premises only with permission or warrant
This Division does not empower an authorised officer to enter any part of premises used only for residential purposes without the permission of the occupier or the authority of a search warrant under section 122M.
122L   Powers of authorised officers to do things at premises
(1)  An authorised officer may, at any premises lawfully entered, do anything that in the opinion of the authorised officer is necessary to be done for the purposes of this Division, including (but not limited to) the things specified in subsection (2).
(2)  An authorised officer may do any of the following:
(a)  examine and inspect any works, plant or other article,
(b)  take and remove samples,
(c)  make such examinations, inquiries and tests as the authorised officer considers necessary,
(d)  take such photographs, films, audio, video and other recordings as the authorised officer considers necessary,
(e)  require records to be produced for inspection,
(f)  examine and inspect any records,
(g)  copy any records,
(h)  seize anything that the authorised officer has reasonable grounds for believing is connected with an offence against this Act or the regulations,
(i)  do any thing that a person authorised by a council is empowered to do under Division 1A,
(j)  do any other thing the authorised officer is empowered to do under this Division.
(3)  The power to seize anything connected with an offence includes a power to seize:
(a)  a thing with respect to which the offence has been committed, and
(b)  a thing that will afford evidence of the commission of the offence, and
(c)  a thing that was used for the purpose of committing the offence.
A reference to any such offence includes a reference to an offence that there are reasonable grounds for believing has been committed.
122M   Search warrants
(1) Application for search warrant An authorised officer may apply to an authorised justice for the issue of a search warrant if the authorised officer believes on reasonable grounds that a provision of or made under this Act is being or has been contravened at any premises.
(2) Issue of search warrant An authorised justice to whom such an application is made may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising an authorised officer named in the warrant:
(a)  to enter the premises, and
(b)  to exercise any function of an authorised officer under this Division.
(3) Application of Search Warrants Act 1985 Part 3 of the Search Warrants Act 1985 applies to a search warrant issued under this section.
(4) Definition In this section:
authorised justice has the same meaning as in the Search Warrants Act 1985.
122N   Assistance to be given to authorised officers
(1)  This section applies for the purpose of enabling an authorised officer to exercise any of the powers of an authorised officer under this Division in connection with any premises.
(2)  The Director-General may, by notice in writing given to the owner or occupier of the premises, require the owner or occupier to provide such reasonable assistance and facilities as are specified in the notice within a specified time and in a specified manner.
(3)  Assistance and facilities can be required under this section, whether they are of the same kind as, or a different kind from, any prescribed by the regulations.
122O   Care to be taken and compensation
(1)  In the exercise of a power of entering or searching premises under this Subdivision, the authorised officer must do as little damage as possible.
(2)  The State must compensate all interested parties for any damage caused by an authorised officer in exercising a power of entering premises (but not any damage caused by the exercise of any other power), unless the occupier obstructed or hindered the authorised officer in the exercise of the power of entry.
Subdivision 3 Power to obtain information or records
122P   Application of Subdivision
This Subdivision applies whether or not a power of entry under this Division is being or has been exercised.
122Q   Requirement to provide information and records
(1)  An authorised officer may, by notice in writing given to a person, require the person to furnish to the officer such information or records (or both) as the officer requires by the notice in connection with any matter within the responsibilities and functions of the Minister or Director-General under this Act.
(2)  A notice under this Subdivision must specify the manner in which information or records are required to be furnished and a reasonable time by which the information or records are required to be furnished.
122R   Provisions relating to records
(1)  A notice under this Subdivision may only require a person to furnish existing records that are in the person’s possession or that are within the person’s power to obtain lawfully.
(2)  The body or person to whom any record is furnished under this Subdivision may take copies of it.
(3)  If any record required to be furnished under this Subdivision is in electronic, mechanical or other form, the notice requires the record to be furnished in written form, unless the notice otherwise provides.
122S   Power of authorised officers to require answers
(1)  An authorised officer may require a person whom the authorised officer suspects on reasonable grounds to have knowledge of matters in respect of which information is reasonably required in connection with any matter within the responsibilities and functions of the Minister or Director-General under this Act to answer questions in relation to those matters.
(2)  The Minister or Director-General may require a corporation to nominate a director or officer of the corporation who is authorised to represent the corporation for the purposes of answering questions under this section.
Subdivision 4 General
122T   Criminal proceedings relating to compliance with requirements under this Division
(1)  A person is not guilty of an offence under section 125 in respect of a neglect or failure to comply with a requirement made of the person under this Division if the person satisfies the court that the person had a lawful excuse for doing so.
(2)  A person must not furnish any information or do any other thing in purported compliance with a requirement made under this Division that the person knows is false or misleading in a material respect.
(3)  A person must not wilfully delay or obstruct an authorised officer in the exercise of the authorised officer’s powers under this Division.
(4)  Despite section 126, the maximum penalty for an offence under section 125 arising under this Division is:
(a)  in the case of a corporation—$250,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or
(b)  in the case of an individual—$120,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues.
122U   Provisions relating to requirements to furnish records, information or answer questions
(1) Warning to be given on each occasion A person is not guilty of an offence of failing to comply with a requirement under this Division to furnish records or information or to answer a question unless the person was warned on that occasion that a failure to comply is an offence.
(2) Self-incrimination not an excuse A person is not excused from a requirement under this Division to furnish records or information or to answer a question on the ground that the record, information or answer might incriminate the person or make the person liable to a penalty.
(3) Information or answer not admissible if objection made However, any information furnished or answer given by a natural person in compliance with a requirement under this Division is not admissible in evidence against the person in criminal proceedings (except proceedings for an offence under this Division) if:
(a)  the person objected at the time to doing so on the ground that it might incriminate the person, or
(b)  the person was not warned on that occasion that the person may object to furnishing the information or giving the answer on the ground that it might incriminate the person.
(4) Records admissible Any record furnished by a person in compliance with a requirement under this Division is not inadmissible in evidence against the person in criminal proceedings on the ground that the record might incriminate the person.
(5) Further information Further information obtained as a result of a record or information furnished or of an answer given in compliance with a requirement under this Division is not inadmissible on the ground:
(a)  that the record or information had to be furnished or the answer had to be given, or
(b)  that the record or information furnished or answer given might incriminate the person.
122V   Miscellaneous provisions relating to notices
(1)  More than one notice under a provision of this Division may be given to the same person.
(2)  A notice given under this Division may be revoked or varied by a subsequent notice or notices (including by extending the time for compliance with the notice).
(3)  A notice may be given under this Division to a person in respect of a matter or thing even though the person is outside the State or the matter or thing occurs or is located outside the State, so long the matter or thing affects the environment of this State.
[18]   Section 153 Notices
Insert at the end of section 153 (1) (b):
  
, or
(c)  by sending it by facsimile or electronic transmission (including for example the Internet) to the person in accordance with arrangements indicated by the person as appropriate for transmitting documents to the person.