For many years, planning authorities have only had two options to take action where a planning offence was committed – civil enforcement or prosecution. Given the significant evidentiary burden, cost and time involved in pursuing either of these options, a number of planning offences were not penalised.
Recent amendments to the Land Use Planning and Approvals Act 1993 have given planning authorities a more extensive suite of enforcement options, designed to improve compliance outcomes across Tasmania.
This fact sheet briefly outlines these new options.
The new provisions allow an authorised officer to serve an infringement notice on a person the officer reasonably believes has committed an “infringement offence” (that is, an offence specified in the Land Use Planning and Approval Regulation 2014 to be an infringement offence – to date, no infringement offences have been specified).
Infringement notices impose a fine for the offence, prescribed in the Regulations and not exceeding 20% of the maximum fine that could be imposed if the alleged offence was subject to a prosecution hearing.
A person who is served with an infringement notice must take one or more of the following actions within 28 days of the date of service:
- pay the penalty in full to the Director of the Monetary Penalty Enforcement Service (the Director);
- apply to the issuing authority (generally, the relevant planning authority) for withdrawal of the infringement notice;
- apply to the Director for a variation of payment conditions (for example, to negotiate a payment plan);
- lodge with the Director a notice of election to have the infringement offence/s heard and determined by a court.
If the person pays the penalty (in part or in full), applies for a payment variation or fails to take any action, the person is taken to have been convicted of the offence. However, the conviction is not to be taken as an admission of liability in respect of any subsequent civil claim.
If an authorised officer reasonably believes a person has committed, is committing, or is about to commit, an offence (including undertaking a development without a permit, breaching a permit condition or not complying with a civil enforcement order), the officer may serve a “notice of intention to issue an enforcement notice.” Notice may be served in person, or by fixing a notice to the property in a visible location.
If the person alleged to have committed the offence is not the landowner, a copy of the notice must also be served on the landowner.
A person who receives a notice can make a representation to the officer responding to the details set out in the notice and explaining why they believe an enforcement notice should not be issued. Representations can be made during the period set out in the notice, which must be at least 14 days.
After considering any representations, if an officer is satisfied that a person has committed, is committing or is about to commit an offence, the officer can serve an enforcement notice.
If the officer considers that an enforcement notice should be issued urgently to prevent the imminent commission of an offence that could cause property damage or environmental impacts that would be difficult or expensive to restore, the notice can be served without having first issued a notice of intent (s.65C(3)).
An enforcement notice may require the person on whom it is served to:
- stop carrying out, or refrain from carrying out, a specified development for the period set out in the notice;
- stop carrying out a specified use of the land;
- demolish or remove a building or other structure, or any works carried out, on land owned or occupied by the person;
- restore, so far as reasonably practicable, land, or a building or structure on land, to the condition it was in before an unlawful development was carried out;
- do, or not do, an act, so as to ensure that development carried out is in accordance a State Policy, permit, special permit, planning scheme, or special planning order. If the notice requires work to be done, it must specify the period in which the work must be completed; or
- take any other action specified in the notice to remedy the consequences of the commission of the offence; or
- take all reasonable steps to ensure that a permit for the use or development specified in the notice is granted.
If the offence would result in environmental harm under the Environmental Management and Pollution Control Act 1994, or compromise compliance with the general environmental duty, an officer should elect to issue an environment protection notice (EPN), rather than an enforcement notice. If an EPN has been issued in respect of the land on which the planning offence has occurred (or will occur):
- the officer must notify the Director of the EPA that an enforcement notice has been issued; and
- the enforcement notice must not include a requirement that is inconsistent with any requirements set out in an EPN.
Any person who is served with an enforcement notice may appeal to the Resource Management and Planning Appeal Tribunal. Unless an appeal has been lodged, it is an offence to contravene the requirements of an enforcement notice that may be penalised with a fine up to 500 penalty units (currently, $70,000).
Cancellation of permits
If a planning authority reasonably believes that:
- the owner or occupier has failed to comply with an enforcement notice; or
- a permit would not have been granted, or would have been granted subject to different conditions, if the applicant had not concealed or misrepresented material facts,
the authority may issue a notice of intention to cancel the permit. Notice is to be served on the owner or occupier of the land subject to the permit (s65F-G).
The notice must set out the grounds on which the planning authority proposes to cancel the permit. The person on whom a notice is served may make a representation to the planning authority within 14 days (or a longer period specified in the notice) setting out why they do not think the permit should be cancelled.
After considering any representations received, the planning authority may serve a notice cancelling the permit. Such a notice may not be issued if the person on whom it is issued is currently subject to civil enforcement proceedings under s.64 of LUPAA.
The owner or occupier may appeal to the Tribunal against the cancellation.
Any person who suspects another person has contravened, or will contravene, a planning permit or planning scheme may notify the planning authority in writing about the contravention.
Within 120 days of receiving the notice, the planning authority is to determine whether enforcement action will be taken and advise the person who sent the notice (s.63B).
Offences under LUPAA can attract fines of up to 500 penalty units (currently, $70,000). The recent amendments now allow courts to, in addition to fines, order the offender to carry out specified works. If the works are not carried out by the offender as required, the planning authority may carry out the work and recover the reasonable costs of doing so from the offender (ss.63(5A)-(5C)).
Planning authorities are able to commence civil enforcement proceedings seeking orders against an alleged offender.
A person with a “proper interest” may also apply for civil enforcement orders against another person in relation to a contravention of LUPAA. However, the recent amendments now prevent such applications from being made unless:
- the person has issued a notice of suspected contravention on the relevant planning authority; and
- within 120 days of receiving the notice, the planning authority has:
- advised the person that the authority does not intend to take enforcement action; or
- advised that enforcement action will be taken, but failed to take such action; or
- failed to respond to the notice of suspected contravention.
If these conditions are satisfied, a person may apply to the Resource Management and Planning Appeal Tribunal for orders requiring a person to take, or not take, specified actions.
These new restrictions on civil enforcement applications do not apply to applications for orders against the planning authority itself.
FOR MORE INFORMATION: Contact EDO on 6223 2770, or visit our website www.edo.org.au.