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Criminal proceedings
These pages describe criminal cases that may be heard by the Land and Environment Court. These are for offences against a variety of planning, environmental and mining laws (environmental offences). The particular laws are specified in s 21 of the Land and Environment Court Act 1979 (“the Court Act”).
The most common types of prosecutions are for:
- offences for pollution under the Protection of the Environment Operations Act 1997
- illegal development under the Environmental Planning and Assessment Act 1979 and Local Government Act 1993
- illegally clearing native vegetation under the Native Vegetation Act 2003
- picking plants or harming animals of a threatened species, endangered population or endangered ecological community under the Threatened Species Conservation Act 1995, Fisheries Management Act 1994 and National Parks and Wildlife Act 1974.
Cases of this kind are allocated to Class 5 of the Court’s jurisdiction. Criminal proceedings in Class 5 of the Court’s jurisdiction are heard and disposed of in a summary manner, by a judge alone without a jury.
Practice and procedure
The pre-trial, trial and sentencing hearing procedures for criminal proceedings in the Court are stated in the Criminal Procedure Act 1986, the Land and Environment Court Act 1979, and Land and Environment Court Rules 2007 and adopted provisions of the Supreme Court Rules 1970 and Uniform Civil Procedure Rules 2005.
The Court has a practice note, which specifies the practice and procedure for criminal proceedings. This document is Practice Note – Class 5 proceedings. (PDF , 218.7 KB)
The statutory provisions and Practice Note state the steps that need to be undertaken before the first directions hearing, at the first directions hearing, before the second directions hearing, at the second directions hearing, and at the trial or sentencing hearing.
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The statute creating an offence may expressly give a person or class of persons the right to institute criminal proceedings for the offence in the Court. For example, the Protection of the Environment Operations Act 1997 gives the Environment Protection Authority the right to institute proceedings for all offences against that Act (s 217(1)) but also gives other regulatory authorities the right to institute proceedings for certain specified offences (see s 217(2) and s 218). Otherwise, any other person or regulatory authority can commence proceedings for an offence against the Act if the Court grants the person or regulatory authority leave to bring the proceedings (s 219).
If the statute creating the offence does not expressly confer the right to institute criminal proceedings for an offence against the statute on a specified person or class of persons, a person may use the common informer provisions of s 14 of the Criminal Procedure Act 1986. This provision allows a prosecution or proceedings for an offence against an Act to be instituted by any person unless the right to institute the prosecution or proceedings is expressly conferred by that Act on a specified person or class of persons. An example where the common informer provision is used is for proceedings for an offence against the Native Vegetation Act 2003 because that Act does not expressly confer the right to institute proceedings for an offence against that Act on any specified person or class of persons.
The statute creating the offence specifies the time within which the proceedings may be commenced. The time varies among statutes and for different offences. For example, proceedings for offences against the Environmental Planning and Assessment Act 1979 may be commenced no later than two years after the offence was alleged to be committed ( s 9.57 of the Environmental Planning and Assessment Act 1979). However, there are different time limits for proceedings for offences against the Protection of the Environment Operations Act 1997.
For certain types of offences (which are prescribed), proceedings may be commenced no later than three years after the date on which the offence is alleged to have been committed or the date on which evidence of the alleged offence first came to the attention of any relevant authorised officer of a regulatory authority. For all other offences, proceedings may be commenced no later than 12 months after either of those dates (see s 216 of the Protection of the Environment Operations Act 1997).
Steps
Helpful materials
For links to useful Court information and documents, legislation, case studies and decisions relating to Land and Environment Court criminal proceedings, see Helpful materials.
Last updated:
08 May 2023
We acknowledge the traditional owners and custodians of the land on which we work and we pay respect to the Elders, past, present and future.