The Land and Environment Court operates in a specialist jurisdiction dealing with cases that relate to mining, planning, the environment, local government and development. The Land and Environment Court was established by legislation and can only deal with matters that fall within its jurisdiction.
Most environmental proceedings within NSW can be enforced through civil proceedings in the courts, particularly the Land and Environment Court where there is an alleged breach of an environmental law.
Civil action in the courts can be used to obtain court orders to prevent environmental harm from occurring which is beneficial as often in criminal proceedings, legal action is reactive and taken after harm has already been caused. For example an injunction can be sought in the Land and Environment Court to prevent an incident that would cause environmental harm.
Examples of actions that may be undertaken in the Land and Environment Court include:
- Where a developer breaches conditions of their development consent
- Where a person undertakes development without the required development consent
Usually, the Environment Protection Authority (EPA) or a local Council will prosecute environmental offences in the Land and Environment Court, the prosecution authority will depend under which environmental law a breach has occurred. On occasion hearings may also occur in the Local Court. The prosecutor demonstrates to the court, through evidence, that an offence has been committed either by an individual or a Corporation and asks the Court to penalise the offender.
The court has a range of penalties available to impose at sentencing including ordering the pollution be cleaned up, damaged areas be remediated, trees replanted etc the remedies available will depend upon the environmental law that has been breached.
The court takes a range of both objective and subjective factors into consideration at the time of sentencing including extent of harm caused, remorse shown and any history of offending.
Judicial review proceedings are another form of legal proceedings that can be utilised to enforce environmental laws. In Judicial review proceedings the Court reviews administrative decision made under Planning and Environmental Laws. For example where decisions for development consent were not made in accordance with the Environmental Planning and Assessment Act 1979 e.g. failure to notify relevant people in accordance with requirements or approval of a development in a zone where such developments are prohibited.
Takeaways for Council
There are numerous avenues for enforcing serious breaches of environmental laws in the Land and Environment Court depending on the nature of the breach or potential breach. Seeking specialist advice early on from Legal Practitioners can ensure that the best strategy is engaged to guarantee the right enforcement outcome is achieved.