Negotiating Enforceable Undertakings under the NSW Biodviersity Conservation Act (2016)
What is an Enforceable Undertaking?
An Enforceable Undertaking (EU) is as a formal agreement between a regulatory authority and a party alleged to have committed an offence. In an EU, the party acknowledges or agrees that a breach occurred, and proposes a set of actions to rectify the situation. To be accepted by the regulator, an EU must align with specific key principles dictated by the regulator. For instance, for the Biodiversity & Heritage Regulator at the NSW DCCEEW EU guidelines specify that a proposal must satisfy at least two of three principles: providing a community benefit, delivering an environmental benefit, or demonstrating a clear change in future behaviour. If the regulator accepts the EU, it typically involves the proponent covering investigation and legal costs, and incurring all costs for the proposed actions. Furthermore, the final agreement is listed on a public register, though all personal details are redacted to ensure compliance with the Privacy and Personal Information Act (1998).
How can an Enforceable Undertaking useful to me?
An EU is a formal proposal initiated by the party under investigation. Although a regulatory body might suggest you could make a proposal, it remains a strategic mechanism that landholders can employ to resolve compliance matters proactively. This allows you to retain a level of control throughout the process. Providing an offer that aligns with regulatory standards allows you to exert influence over an investigation's conclusion. This is vital if the potential penalties or mandated outcomes proposed by the regulator are significantly disadvantageous to your operations. NSW LMAS can navigate this process and assist with a proposed EU.
What do we need for an Enforcable Undertaking to be successful?
Success requires a genuine commitment to resolving the matter through a formal agreement. Depending on the size and magnitude of the allegation, it may be costly. As the regulator is not obligated to accept a proposal, or provide detailed justifications for that decision, demonstrating a genuine intent to rectify the issue is essential for a positive reception. Engaging a skilled partner like NSW LMAS will ensure professional preparation and negotiation of your proposal. Additionally, we recommend having a solicitor review the final document before execution, to protect your interests.
How can NSW LMAS help me with an Enforcable Undertaking?
NSW LMAS provides expert support for landholders considering an EU to resolve regulatory investigations. Our team assists in reviewing allegations and formulating a clear strategy regarding the offers you present to the regulator. We specialise in drafting formal EU proposals and managing all subsequent negotiations, including reviewing potential amendments suggested by regulatory bodies. From initial strategy to final execution, NSW LMAS manages the process on your behalf. As most EU's require annual monitoring, we can provide ongoing monitoring services to ensure you meet all mandatory compliance requirements stipulated within your agreement, giving you peace of mind throughout the period of the undertaking.
NSW Land Management Advisory Services (NSW LMAS) provides technical consulting, land management, environmental, and regulatory advisory services. Our advice is not legal advice and should not be relied upon as a substitute for advice from a qualified Australian legal practitioner. Where appropriate and at your instruction, NSW LMAS can work alongside legal practitioners to provide technical advice as well as ecologists, bush regeneration specialists, and other suitably qualified experts to assist in addressing specific project or regulatory requirements.