23 February 2017

Have you or your company been given an enforcement notice under the Sustainable Planning Act 2009 (SPA)? Failure to comply with an enforcement notice is an offence and can carry a hefty financial penalty.

When can an Enforcement Notice be given?

An assessing authority (e.g. a Local Government or State agency) can give an enforcement notice under the SPA if they reasonably believe that you are committing a development offence.

Before an enforcement notice is given, the assessing authority will usually give a show cause notice in relation to the alleged offence. If this happens, it is critical that you make written representations to the assessing authority within the timeframe specified. Your response to the show cause notice may well resolve the issues and the enforcement action may not be further pursued.

You should obtain legal advice before responding to a show cause or enforcement notice given the potential significant consequences.

Development Offence under SPA

The most common development offences for which enforcement notices are given under the SPA include:

Offence ProvisionDescription of Offence
s578Carrying out assessable development without permit – a person must not carry out assessable development unless there is an effective development permit for the development.
s580Compliance with development approval – a person must not contravene a development approval, including any condition of approval.
s582Offences about the use of premises – without lawful excuse a person must not use premises if the use is not a lawful use.

The maximum penalty for each of these offences is 1665 Penalty Units, or $202,964.

Key requirements

For an enforcement notice to be valid, it must:

  • be in writing and describe the nature of the alleged offence;
  • inform you of your right to appeal against the giving of the enforcement notice;
  • if requiring you to do an act, must state either a period for which the requirement applies or that the requirement applies until further notice; and
  • if requiring you to do an act, state a period within which the act is required to be done (e.g. remedy an unlawfully constructed building or part thereof).

Consequences of not complying with an enforcement notice

Failure to comply with an enforcement notice is a separate offence under SPA and, depending on the offence alleged, the assessing authority may prosecute you in the Magistrates Court or commence enforcement proceedings against you in the Planning and Environment Court.

Appealing an enforcement notice

If you believe you have grounds to appeal an enforcement notice, you have 20 business days from the date of receipt to file a Notice of Appeal in the Planning and Environment Court.

Subject to specific exceptions, once an appeal against an enforcement notice is filed, the enforcement notice is usually stayed until the matter is determined by the Court.

Contact Us

If you require assistance responding to a SPA show cause or enforcement notice, please contact Leanne O’Neill or Marcus Ford to discuss how you should best proceed.

 

This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.