“NAME AND SHAME” ORDERS
Breaching an environmental or planning law can have serious consequences. Besides the impact of the penalty that can be imposed, often the reputational risk of being convicted of such an offence is significant and can have a real-world impact on defendants who are prosecuted and found guilty.
To encourage compliance with environmental and planning laws in New South Wales, the Courts have the ability to impose “name and shame” orders for offences contrary to the Environmental Planning and Assessment Act 1979 (the EP&A Act).
The EP&A Act creates numerous offences. Perhaps the most common, and one of the offences that attracts the highest statutory penalty, is in relation to carrying out development without consent to do so.
Section 4.2 of the EP&A Act states that (with emphasis underlined):
(1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless—
(a) such a consent has been obtained and is in force, and
(b) the development is carried out in accordance with the consent and the instrument.
Maximum penalty—Tier 1 monetary penalty.
The maximum “tier 1 monetary penalty” is a penalty in the sum of $5,000,000.00 for a corporation and $1,000,000.00 for an individual.
It is important to note that all kinds of development in New South Wales may require consent, even development that many may consider minor works. For example, in certain circumstances, building a shed or pruning a tree could be development that requires consent under the EP&A Act.
WHAT CAN THE COURT ORDER
For offences against the EP&A Act and Environmental Planning and Assessment Regulation 2021, the EP&A Act at section 9.56 states that the Court has the power to issue the orders available to it pursuant to Part 8.3 of the Protection of the Environment Operations Act 1997 (the POEO Act).
Part 8.3 of the POEO Act empowers the Court to make orders such as:
- an order that the offender take specified action to publicise the offence and the orders made by the Court against the offender; and/or
- an order that the offender notify specified persons of the offence and the orders made by the Court against the offender (this could include, for example, a notice to shareholders).
Further, it is important to note that the prosecutor is entitled to recover the ‘reasonable cost’ of taking legal action against an offender if that offender has failed to comply with an order to publicise or notify others of its conviction.
EXAMPLES OF ORDERS THE COURT HAS MADE
In the case of Secretary, Department of Planning and Environment v Sell & Parker Pty Ltd  NSWLEC 60 (Sell & Parker), the offender had been in receipt of waste in excess of the limits imposed by the relevant condition of the development consent. They were found guilty of two offences.
Her Honour Pepper J ordered that, in addition to fines and costs for the prosecution, the offender was to place a notice regarding its conviction (at its own expense) in the Daily Telegraph, the Sydney Morning Herald and The Australian Financial Review. The offender was also required to, at its own expense, place a notice on the home page of its website outlining its conviction.
The Courts have the power to “name and shame” offenders. This poses a real reputational risk to those involved in matters that could impact on the environment (which includes both government and private organisations). This emphasises the importance of seeking legal representation early if your organisation may be subject to environmental offence proceedings.