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Civil Enforcement

Civil enforcement is action taken in Court to remedy or restrain a breach of an Act

In relation to local government, the three main Acts which control the use of land in NSW are:

Each of these three Acts regulate different kinds of activities and land uses within the state.

Generally speaking the Local Government Act deals with matters of health and safety of buildings and premises within the Council area. The Environmental Planning and Assessment Act is directed to planning and building matters whilst the Protection of the Environment Operations Act addresses matters of pollution.

Any Person May Take Proceedings

Where there is a breach of one of these Acts, each Act gives any person the right to take action in the Land and Environment Court seeking orders to remedy or restrain a breach of one of the Act’s, which include unauthorised work and noise nuisances.

This means that the right to go to Court for civil enforcement action for breaches is not limited to local councils. The right to commence proceedings is wide – giving any person such as a neighbour or concerned individual the right to start proceedings in the Court and seek orders in relation to the breach.

Civil enforcement proceedings are different from prosecutions which are criminal matters that are reserved for authorities and require officers to present evidence beyond a reasonable doubt and demonstrating an impact to the environment from the breach. In these criminal matters, the orders made by the courts are fines and other penalties which are a punishment for committing the breach.

However, in civil enforcement proceedings, the Court does not punish the person who committed the breach. Rather the orders of the Court are directed to addressing the activity or thing which is in breach of the Act. The Acts state the orders the Court may make are orders which remedy or restrain a breach of the Act.

Types of Orders

Remedy and restrain are legal expressions.

To remedy a breach means to put it right, to rectify, to make good and to restore. In remedying a breach of an Act the Court may require a person who is found in breach to demolish an unauthorised structure, or to clean up premises where a pollution incident has occurred.

To restrain a breach is to hold back from action; keep in check or under control. In restraining a breach of an Act the Court may make an order stopping a person from carrying out an unauthorised activity or require them to carry out an activity in accordance with the terms of their consent or licence.

Whilst Hornsby Shire Council may take proceedings in relation to breaches, the provisions enabling any person to commence proceedings means that you may take your own action in the Land and Environment Court in relation to a breach of one of the Acts.

The Decision Whether to Take Proceedings

When a breach of an Act occurs and it is reported, Council may investigate the breach. It will then determine whether to exercise its own discretion to take any regulatory action in relation to the breach. The factors the Council weighs are similar to those to which the Land and Environment Court gives consideration, which include considerations of the impact to the environment, cooperativeness and intent of the offender and impact and benefit of potential enforcement action.

If you are unsatisfied with Council’s decision and decide that you wish to take proceedings for civil enforcement yourself, it is highly recommended that you obtain your own legal advice. The Law Society of New South Wales provides a database of specialist lawyers who practice in the Land and Environment Court and who may provide assistance.

For further information regarding civil enforcement visit the Land and Environment Court website.