Civil penalties to take root in NSW planning laws

The NSW Government is proposing to add civil penalty proceedings to NSW planning laws, following the introduction of civil penalty proceedings for NSW water laws last year (see our insight here).

Unlike the sweeping changes to water laws, this proposed civil penalty regime is only proposed to apply to a single, new civil penalty provision relating to unauthorised clearing of vegetation under the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act).

This article covers the implications of the proposed changes, which include new legal and financial risks that will arise for directors and managers of corporations accused of unauthorised clearing.

Key proposed changes

Earlier today, the Minister for Planning and Public Spaces introduced the Environmental Planning and Assessment Amendment (Vegetation) Bill 2026 (Bill).

The Bill seeks to amend the EP&A Act and the Land and Environment Court Act 1979 (NSW) to make unauthorised vegetation clearing subject to new civil penalties in Class 4 of the NSW Land and Environment Court. The Minister has explained that the regime is “directed at illegal clearing in non-rural areas”.   

Civil Penalty provision for unauthorised clearing

The Bill includes a new requirement that a person must not contravene a requirement of an environmental planning instrument for a permit or approval to clear vegetation: s 9.60. Currently, this would include the requirements for permits or approvals under Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021.  

“Clear” is defined to include cutting down, killing, poisoning, lopping or even removing a substantial part (among other things). “Vegetation” is broadly defined to mean a tree or other plant.

The proposed provisions do not change the requirements for approvals and permits to clear vegetation in New South Wales. Rather, they change the type of enforcement action that can be taken in response to alleged non-compliances.

Currently, NSW planning laws only provide for penalties to be applied via penalty notices or criminal prosecution. This new provision would be subject to civil penalty proceedings in the NSW Land and Environment Court (class 4), commenced by local councils or the Planning Secretary.

Where liability is established, maximum penalties of $500,000 for an individual and $2.5 million for corporations would apply, and the Court would have discretion to make a range of other orders such as to rectify the contravention, require planting of new vegetation.  

Extended liability for unauthorised clearing

The Bill extends responsibility and liability for contraventions of the new civil penalty provision to directors and managers of corporations who “authorise” or “knowingly permit” unauthorised clearing (s 9.62).  If passed, this will introduce for the first time executive liability risk into the EP&A Act, which does not currently exist for criminal offences.

Accessorial liability is also included to extend responsibility and liability to persons who aid, abet, counsel or procure, cause or permit, induce, are knowingly involved or conspire with others, in connection with such a contravention (s 9.61).

Limited protections

Some limited protections are included within the Bill. These include:

• Double jeopardy provisions, so that a person could not be penalised via both criminal prosecution and civil penalty proceedings for the same conduct;
• A two-year limitation period for civil penalty proceedings; and
• No retrospective application of civil penalties.

Analysis

Additional potential liabilities for civil penalty proceedings

Civil penalty proceedings carry the risk of additional potential liabilities when compared to criminal proceedings.

Higher penalties can apply. In this example, the proposed maximum penalties are higher for corporations than comparable Tier 2 criminal offences under the EP&A Act, as outlined below. While existing “Tier 1” criminal penalties are higher, the Tier 1 maximum rarely applies because it requires the prosecutor to prove the offence was committed intentionally and caused or was likely to cause significant harm to the environment or death or serious injury or illness to a person.

The High Court has made clear that the purpose of civil penalties is primarily if not solely for deterrence. This can lead to higher penalties, where the maximum civil penalty is treated as only a “cap” not a “yardstick” for the worst kind of offence.

The civil standard of proof is lower than the criminal standard. Contraventions only need to be proven on the balance of probabilities (i.e., that the contravention was more likely than not), rather than to the higher criminal standard of beyond a reasonable doubt. The lower standard is intended to make it easier for regulators to prove contraventions, but this necessarily leads to increased risks for those accused of wrongdoing.

Directors and managers face increased potential liabilities for actions of corporations in contravention of the new civil penalty provision.

Opportunity for efficient resolution of Court proceedings

Civil penalty proceedings have some practical advantages over criminal prosecutions. Unlike in criminal prosecutions, in civil proceedings it can be possible to reach agreement with the regulator on the facts and the amount of the penalty, and to put an agreed outcome to the Court. A civil penalty order also does not result in a criminal conviction. Early engagement with the council or the Planning Secretary can therefore help manage cost, time and reputational impact.

Further expansion of civil penalties in planning laws?

We anticipate that there may be a further expansion of civil penalties in environmental and planning laws. This could occur via further proposed changes to the EP&A Act or, in the case of illegal clearing, via changes to environmental planning instruments if this Bill is passed.

Currently the approval and permit requirements under the State Environmental Planning Policy (Biodiversity and Conservation) 2021 only apply in specific circumstances, such as in non-rural areas where development consent does not authorise clearing. Under the proposed s 9.60, it would be possible for the SEPP to be amended, or for another environmental planning instrument to be made (without an Act of Parliament), to expand the scope and application of the civil penalty provision.

Conclusion

This Bill represents a continued shift towards civil penalty proceedings in NSW planning and environmental laws and is changing the way regulatory action is taking place across the state. While the NSW Land and Environment Court is yet to determine any civil penalty case, it is only a matter of time before the first civil penalty matter comes before the Court. The Mallesons team is closely following the emergence of civil penalties in NSW environment and planning law. Please reach out if we can be of assistance.