Enforcement action by local councils – The EPA Act

What powers do local councils have when it comes to enforcement under the EPA Act?

Councils have a broad range of powers to enforce the law. The source of those powers come from various pieces of legislation. This article focuses on options available to councils under the Environmental Planning and Assessment Act (EPA Act).

1. Take no action

Councils are permitted to exercise it’s discretion in accordance with Ryde City Council v Echt (2000) 107 LGERA 317. The Supreme Court of New South Wales Court of Appeal relevantly stated:

The third basis that was put was that the Council was under a duty to act to enforce the law… in relation to permits, approvals, orders and certificates and the like, extending to the powers being exercised by the Council…

…no particular provision of the legislative scheme was pointed to as grounding any such wide ranging duty, nor do I believe there is any such wide ranging duty known to the law… [There are] a number of reasons why statutory bodies and those exercising the prerogatives of the Crown, which have responsibility for the administration of justice and the enforcement of the law, may choose not to enforce the law in particular circumstances or at all.

2. Take informal action

Councils may elect to take an approach which seeks to enable and empower people to resolve issues under the supervision of council officers. This approach could include:

    • education compaigns to address community-wide issues;
    • negotiations to obtain voluntary undertakings or agreement to address concerns; and/or
    • issuing letters or verbal warnings which require matters to be attended to before formal action is taken.

3. Use their investigative powers to enter, search, or obtain information and records

The EPA Act allows council investigation officers to enter, search, or obtain information and records about the activities being carried out on a site.

There are strict requirements that council investigation officers must follow under the EPA Act in order to use these powers lawfully. In particular, there are special requirements if the investigation relates to a residential premises.

It is an offence to fail to comply with a requirement made by a council investigation officer, including to delay or obstruct a council investigation officer in the exercise of their powers. Criminal proceedings may be commenced if a person does not comply.

4. Issue development control orders 

There are a 15 general orders that councils can issue under the EPA Act, including stop use orders, stop work orders and restore works orders. There are also 3 additional orders in relation to fire safety issues. Usually councils are required to provide notice of their intention to issue such an order, unless the situation is an emergency. Representations can be made by the person issued with the notice before any order is made.

5. Issue penalty notices

Councils have the ability to issue penalty notices for certain offences (these were previously known as penalty infringement notices, or PINs). A person can choose to pau the penalty notice within the time specified in the notice, or can elect to have the matter determined by a court in criminal proceedings.

6. Commence criminal proceedings 

If an offence in relation to the EPA Act is alleged to have occured, criminal proceedings must commence within 2 years of that offence being committed.

7. Commence civil enforcement proceedings

Civil enforcement proceedings to remedy or restrain breaches of the EPA Act are often commenced in conjunction with other actions, like development control orders.

There are a range of steps that can be implemented by a council in an investigation plan, and in response to the same. If you are unsure about the correct path it may be best to seek legal advice.

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Alyce is a civil engineer and a practicing lawyer, who has a desire to share her insights on the legal and practical realities of the development industry.