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The Hills Shire Council Internal Procedure

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A complaint may therefore arise where an individual alleges that council staff have failed to act on a report alleging illegal activity. Timely • ensure that responses to reports alleging illegal activities and decision-making regarding them are timely. All council staff who deal with reports alleging illegal activities are responsible for the implementation of this policy.

How the Council will deal with reports of suspected illegal activity The Council will record and assess any report of suspected illegal activity. This means that the aim is for reports of alleged illegal activity to be resolved to the satisfaction of the council, not necessarily the person who initiated the matter. All complaints about the council's handling of reports of alleged illegal activity will be recorded separately and dealt with in accordance with the council's complaints management policy and procedures.

Taking enforcement action

The Board may also require a person subject to possible enforcement action to seek professional advice in relation to issues of concern to the board for assessment of whether further action is necessary. Enforcement action will not be taken solely as a response to the behavior of an individual such as persistent demands or threats. Council staff will at all times adhere to the council's internal approval processes before commencing any enforcement action.

Board staff will take steps to ensure that any enforcement action is taken against the correct person or organization. When there are multiple possible parties to an alleged illegal activity, it will generally not be appropriate to take enforcement action against every person who may be liable for the alleged illegal activity. Hills Shire Council has developed a compliance strategy/risk assessment process regarding the specific types of regulatory activity and the circumstances under which enforcement action will be taken.

Options for dealing with confirmed cases of unlawful activity

Taking legal action

Carry out activities specified in a decision of the Council under relevant legislation, at the expense of the person to whom the order is addressed;. The Board and its delegated staff will be guided by legal advice in deciding whether to initiate criminal or civil proceedings and will consider the following:. whether there is sufficient evidence to establish a case to the required standard of proof. whether there is a reasonable chance of success in court. whether the public interest justifies legal action. Whether there is sufficient evidence to confirm a case to the required standard of proof The Council considers the decision to take legal action to be a serious matter and as such will only initiate and continue proceedings if it has been determined that there is admissible, substantial and reliable evidence to the required standard of proof.

Did the Board contribute to the fact that the owner acted on a reasonable expectation that no action would be taken. If there is real or potential harm to the natural or built environment, the health and safety of residents, or the amenity of the area, this will normally justify a decision to take action. If enforcement action will cause particular hardship to a person and the impact of the illegal activity is not otherwise serious, the Council may consider taking informal action or not acting at all.

Enforcement options available

It is essential that the Council monitors situations where, despite evidence of illegal activity, no formal enforcement action is taken. The notice of intention may provide that comments are to be made to the person making the order or to the nominee on a date to be named, which date is reasonable in the circumstances of the case. Fourteen (14) days is a reasonable period of time to allow the party receiving the order to place the order or cease the unlawful activity.

Any legal action must be authorized by the investigating officer's Manager and Group Manager, after which approval from the General Manager must be sought and obtained. Civil enforcement action can be taken in respect of an alleged breach of a planning or environmental law. In cases referred to above, the Council also has the option to prosecute, to seek a pecuniary penalty in the local Court or through Class 5 proceedings in the Land and Environment Court. It is critical that in pursuing a matter through the Local Court or Class 5 proceedings in the Land and Environment Court, the Council gathers sufficient evidence to prove each of the elements of the offense and that the evidence is admissible in form.

Penalty Notice Issued for minor unauthorized works that do not affect the amenity of surrounding neighbors and pose no continuing risk to public health or safety. Generally, when the violation is a one-time violation and when the violation is significant enough to require a deterrent from further illegal activity. For example, an unauthorized pergola which does not obscure or cause loss of access/solar view, residence without an occupation certificate (where there are no safety risks).

Issued for unauthorized work that would not be allowed to remain where there is a threat to public health and safety, work carried out without a permit. Examples include renovations carried out without consent, unauthorized works on a heritage site, installation of a shed which would not be allowed to remain. Issued where a building structure is compromised and likely to cause an imminent threat to public health and safety, or work is carried out without a permit.

Shared enforcement responsibilities

Role of council where there is a private certifier

Role of Councillors in enforcement

Delegations

Review

Other resources

Commonwealth Director of Public Prosecutions (2014), Commonwealth Prosecution Policy: Guidance for Decision Making in the Prosecution Process.

Annexure ‘A’

Anything that could potentially cause injury or damage to persons or property must be classified as urgent and must be verbally referred to the action officer immediately upon submission. If the complainant calls back and wants to cancel their CSR: Add a note to the request with the customer's comments. Environment & Planning CSRs - All CSRs are considered a new complaint and must be submitted as new.

The "location of issue" linked to Environment & Planning CSRs is always a private property address, and is not the complainant's address. Where the customer advises that they wish to remain anonymous, use the customer's Name 'anonymous - unknown address'. Contact details may need to be obtained from the client where the result of a CSR ends in prosecution, i.e.

Once you are sure the customer name is not in the system, pin the customer name. Include the standard name requirements in your notes: title, first name, last name, address, and contact number. Pathway is the source of the Council's name and address register and the NAR officer at Rates maintains the data, the 'UNKNOWN' entries report is run and the client name is generated and the claim attached to the name.

Sufficient detail must be included in the CSR for the NAR officer to generate a name. Council field officers (rearers, inspectors etc.) are expected to be proactive and record their own customer service requests when out and about; they have the technology and capabilities and are aware of this expectation. If you receive phone calls from police officers in the field, ask why they are not recording it themselves.

There may be a good reason and if there is - provide the customer service - we want to be helpful.

Annexure ‘B’

Annexure ‘C’

Annexure ‘D’

The type of action chosen will depend on the degree of risk and impact of the non-compliance. The type of action taken will be proportionate to both the risk and seriousness of the breach. This response is appropriate depending on the nature of the complaint and the extent of any non-compliance.

Notice of hearing For several serious breaches and/or where there has been previous non-compliance and directives/penalty notices have not been complied with, the matter will be referred to the Council's Legal Services Department for consideration of commencement of proceedings. The council officer will consider a number of factors when selecting compliance measures. Notification At the end of the time frame given in accordance with the executive order, the council employee can refer the case to the Council's Legal Services Department with a view to processing the initiation of a case of non-compliance with the executive order.

The type of action taken will be proportionate to both the risk and the seriousness of the breach. Notice  Failure to comply with orders issued under Section 121B of EPA&Act. For more serious offences, a person can be prosecuted with the consent of the CEO in a local court or the Land and Environment Court.

Notice of Court Attendance  If the food business has a history of serious critical errors/non-compliance with the Food Standards Code. NSW Protection of the Environment Operations Act 1997 Environment Protection and Biodiversity Conservation Act 1999 What action can be taken if non-compliance is found. Court Attendance Notice For persistent failure to comply with prior notices/directions and/or matters causing significant environmental damage, the matter will be referred to the Council's Legal Services Department for consideration of commencement of proceedings.

A penalty notice can be issued for a subsequent failure to comply with the time limits within 28 days of receiving the warning after receiving it. Notice of Court Attendance Where there has been a history of non-compliance with previous enforcement actions for the same or similar offences, the matter will be referred to the Council's Legal Services Division for consideration of commencing proceedings. Under the Public Health Act 2010, the Council has a responsibility to take appropriate measures to ensure compliance with the requirements of the Act.

References

Related documents

Schedule 2: Interpretation Act means the Hazardous Substances and New Organisms Act 1996 aerosol has the same meaning as in regulation 151 of the Health and Safety at Work Hazardous