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Compliance policy

Introduction
The Department's Roles and Responsibilities
Community education and engagement
Monitoring
Investigating alleged breaches
Taking appropriate action
Ethical Conduct
Review and Reporting
Appendix 1 – Managing breaches of department of natural resources legislation
Appendix 2 – Available compliance responses

Foreword

Land and water are our two most essential but fragile natural resources. If we do not manage them wisely today, we will face serious consequences in the future, and our rural industries and communities will be hit harder than most.

A balanced approach to managing our natural resources means securing fair access to land and water today, without compromising the ability of future generations to meet their own needs . Where we seek to ration or restrict access to natural resources, it is with the viability of the environment and the future development of our communities in mind.

Farmers and rural and coastal communities are the primary, frontline land managers in NSW. That is why the Department of Natural Resources must work with them.

We recognise that the overwhelming majority of farmers are responsible and skilled custodians of the land. Our role is to provide the support and expertise they need to help them succeed in this vital task.

The Department will work with landholders, providing them with information to help them manage their land and water resources more effectively, make sure they are aware of the law as it stands and give them the certainty they need to plan for their future with confidence.

However, there will always be some cases where landholders or developers seek to abuse the system and gain advantage at the expense of their neighbours and the community.

Where breaches occur, the Department will take appropriate action depending on the significance of the breach. The clear emphasis at all times will be to remedy the environmental harm.

The Department will take whatever action is necessary to protect our land and water to ensure these resources can be fairly shared with both present and future generations.

Ultimately, we all have a stake in the careful management of our precious natural resources. Accordingly, the Government has passed legislation to manage and protect natural resources in NSW and this policy describes how the Department of Natural Resources will work to ensure compliance with this legislation.

The true measure of success is how effective we are at securing the future of our land and water resources on behalf of the whole community. This Compliance Policy is an important step towards achieving this vital goal.

IAN MACDONALD MLC MINISTER FOR NATURAL RESOURCES

1. Introduction

The Department of Natural Resources is a New South Wales Government Department established in August 2005. The main role of the Department is to improve the environmental sustainability, the economic performance and the quality of life for the NSW community through balanced natural resource management.

The Department will work collaboratively with the community to protect the interests of legitimate natural resource users. The Department is committed to resolving competing claims for water and land use in ways that sustain the environment and support economic growth.

The NSW natural resources laws aim to conserve and encourage wise use of natural resources. The Department will work cooperatively with landholders wherever possible to achieve these broad aims. Compliance will be sought by education and encouragement wherever possible, but, where appropriate, enforcement measures will be used for significant breaches.

The purpose of this Policy is to inform the community about how the Department intends to manage compliance with the legislation it administers and implement its compliance responsibility in a fair and equitable manner. It will guide the Department's compliance activities to ensure they are consistent with its broader role of promoting effective natural resource management in the public interest.

This Policy is supported by operational procedures that guide the Department's officers in implementing this Policy.

2. The Department's Roles and Responsibilities

The Department has regulatory responsibility under a number of Acts, including:

Native Vegetation Conservation Act 1997
Native Vegetation Act 2003
Plantation and Reafforestation Act 1999
Water Act 1912
Water Management Act 2000
Western Lands Act 1901
Coastal Protection Act 1979
Rivers and Foreshores Improvement Act 1948
Forestry and National Park Estate Act 1998
Soil Conservation Act 1938
Crown Lands Act 1989 (relating to the Western Division)

DNR implements its compliance role by:

community education and engagement to promote voluntary compliance;
monitoring natural resource activities across the State to deploy pro–active programmes and to identify potential breaches in a timely manner;
investigating alleged breaches;
taking appropriate action when a breach occurs. Where possible, emphasis will be placed on remedying environmental damage resulting from breaches; and
review and reporting.

3. Community education and engagement

Providing education and information to resource users and the general community encourages voluntary compliance, as this knowledge enables them to comply.

The Department will promote compliance by:

removing barriers to compliance (eg lack of knowledge regarding legislative requirements and how to comply with them) and promoting the principles of the legislation;
overcoming factors that encourage non–compliance (eg lack of public support for, or the misunderstanding of, natural resource management objectives); and
raising awareness of the benefits of complying with the legislation and the potential consequences of not complying.

The Department will, in conjunction with government agencies, peak bodies, the community, industry groups, Catchment Management Authorities and Local Councils, seek to facilitate community access to information about natural resource requirements. This will maximise the benefits and outcomes of activities promoting compliance and also provide feedback on the Department's programmes.

It should be noted that the Catchment Management Authorities do not exercise enforcement actions for or on behalf of the Department. CMAs may be consulted by and liaise with the Department but they do not undertake any investigatory or prosecution functions for the Department.

4. Monitoring

Monitoring compliance with natural resource legislation is an essential part of the Department's regulatory role. Monitoring helps the Department to:

determine the level of compliance and trends for regulated activities;
detect possible breaches and identify where action may be required to avoid or mitigate environmental harm;
identify whether, and what type of, education campaigns or enforcement action may be required; and
assess the effectiveness of its operations and programmes and also to identify opportunities for improvement.

The Department undertakes three types of monitoring activities:

1. Detection

The Department's detection activities include both aerial and ground survey, aerial photography and the use of satellite images (high resolution satellite imagery is used to monitor compliance with natural resource legislation across NSW).

2. Audit and Review of Approvals

A large number of approvals (consents) are granted under relevant legislation in order to equitably share natural resources. In most instances, these approvals provide benefit to the holder and contain conditions designed to protect the environment and the resource base that other landholders rely upon. The Department conducts audits and reviews to verify compliance with these approvals and to improve the quality and effectiveness of its approvals.

3. Reports of Possible Breaches

The Department receives reports of alleged breaches from external sources including members of the public, local councils and other government bodies. All alleged breaches detected, or reported, are recorded, assessed and considered for action in accordance with this Policy.

5. Investigating alleged breaches

All alleged breaches of natural resources legislation are prioritised for investigation using a risk management approach in line with the Australian Standard. This provides for the most efficient allocation of the Department's resources.

For all alleged breaches recorded, initial desktop assessment and prioritisation (into low, medium and high risk) is conducted. This assessment comprises:

a review of the Department's records for applications, approvals, previous compliance investigations and any other documentation relating to the land as well as the people that may be involved. Relevant material such as recent and historic aerial photography, satellite imagery, maps, plans and previous reports may also be examined; and
an assessment of the likely environmental harm, impacts on other resource users and the effect on the integrity of a consent and/or the regulatory system.

Further investigation may be warranted following the outcome of the desktop assessment and this may involve a site inspection and collecting information from the landholder. Before undertaking a site inspection, wherever possible, officers will contact the landholder to arrange a visit to the property.

During an investigation, compliance officers will gather evidence of the incident in order to establish whether an offence has occurred and the identity of the person(s) who may be responsible. This evidence may take the form of videos, photographs, samples and physical evidence, witness statements and records of interview.

The Department's compliance officers will undertake their investigations in a professional manner that is:

objective, fair and impartial;
consistent with the presumption of innocence;
within their delegated authority;
in accordance with the law; and
respectful of individuals.

The process for managing alleged breaches is set out in Appendix 1.

6. Taking appropriate action

If, after full investigation, it is considered that a breach has occurred, DNR will take appropriate action depending on the significance of the breach.

In determining the significance DNR will consider:

The degree of environmental harm or potential harm resulting from the breach.
Issues of the equitable use of natural resources.
The severity of the breach.
The integrity of the consent and/or the regulatory system, such as;
- avoiding a poor precedent being set; and
- an unreasonable or extreme interpretation in relation to a condition of consent.
The public interest including for example:
- if action would be perceived as counter–productive by bringing the law into disrepute (eg where consent for the activity would have been granted if an application had been made, or where a change in the law is imminent which would make the activity permissible);
- the level of public concern; and
- the need for either general or specific deterrence.
Any aggravating factors, including for example:
- whether an individual is culpable (eg they are aware or should be aware that they are committing a breach and continue regardless);
- whether an individual has a history of prior breaches where the Department has taken action; and
- whether the breach is ongoing.
Any mitigating factors, including for example:
- whether the individual had acted in accordance with DNR advice (or CMA advice in the case of the Native Vegetation Act 2003 );
- whether the individual is not culpable; and
- whether the individual is willing to co–operate and the extent to which they have already done so.

The applicability of, and weight to be given to, each of the above factors will depend on the circumstances of each particular case. Officers will make their determination on the level of significance with reference to internal policies, peer review as well as supervisor support. Officers will only operate within their delegated authority.

The Department has available a wide range of measures it can use in response to breaches such as warning letters, penalty notices, remediation directions and prosecution. A table of compliance options, as available under the Department's legislation, is set out in Appendix 2.

After consideration of all appropriate factors alleged breaches are classified as being of low, medium and high significance in accordance with the Department's risk management framework. This classification guides the action to be taken.

In events determined to be of low significance, the following actions may be taken:

finalise the case (only where the degree of harm is low to very low, there are no aggravating circumstances, the public interest does not compel further action and some mitigating circumstances exist);
send an advisory letter to the alleged offender to assist that person to meet their duty of care in the future;
send a warning letter to the alleged offender to encourage that person to meet their duty of care in the future; and
negotiation of a corrective request.

In breaches determined to be of medium significance, the Department will focus on achieving outcomes that repair any harm that has been caused, by negotiating remediation agreements or by issuing orders.

Other options available for dealing with these breaches could include one or more of the following:

issue of a Stop Work Order where the activity is continuing (and the landholder has been asked to stop), or there is a risk that the landholder will recommence the activity;
issue of a Penalty Notice in relation to the breach;
negotiation of a corrective request;
suspend any relevant license, approval or consent; and
debit of a water account.

In cases determined to be of high significance, the Department may use one or more of the following responses:

issue a Stop Work Order;
require remediation of the harm arising from the breach. Landholders will be given an opportunity to comment on the intended outcomes of a notice and unless there are reasons to issue a notice urgently, the terms of the notice will be negotiated. If agreement cannot be reached, DNR will issue a remediation notice;
issue a Penalty Notice. Penalty Notices should not be used in relation to the more serious breaches and where prosecution is the more appropriate outcome;
commence proceedings in the Land and Environment Court or in a Local Court ; or
cancel or suspend any relevant licence, approval or consent.

The Department's decision to commence prosecution action or civil proceedings will be made by the Executive Director Resource Access and Compliance having regard to whether the public interest is best served by pursuit of a prosecution and where the gravity of the offence is such that prosecution is the appropriate response.

In all prosecutions in which the Department is involved, the burden of proof to secure a conviction rests with the Department. All matters in which the Department exercises its regulatory role are criminal in nature. Therefore, the standard of proof required to enable a court to find that an offence has been proved, is proof beyond reasonable doubt, as to the elements of the offence.

7. Ethical Conduct

The Department has a Code of Ethics and Conduct that all officers are required to comply with. Compliance decisions will be made in accordance with Public Sector guidelines and to the highest ethical and professional standards. Any approaches to bribe, influence or engage officers in corrupt or unlawful behaviour will be reported immediately and will be investigated by the appropriate authority.

8. Review and Reporting

The Department is committed to implementing this Policy in a transparent and accountable manner. The Department will review its implementation of this Policy and its compliance programme annually and will report on implementation in each Annual Report.

Over time the Department will review the Policy to take into account operational experiences. In the event that amendments to the Policy are required as a result of review findings, the Policy will be updated on the Department's web site and copies will be available through the Information Centre and regional offices.

APPENDIX 1: MANAGING BREACHES OF DEPARTMENT OF NATURAL RESOURCES LEGISLATION

Appendix 1: Managing breaches of Department of Natural Resources legislation

APPENDIX 2: AVAILABLE COMPLIANCE RESPONSES

The primary compliance actions available to the Department of Natural Resources under each of the Acts