HELP! I have received a Development Offence Notice from Council. Understandably this may cause a few sleepless nights. The Notice may have caused you some confusion with regard to the actual offence committed and it can be difficult to understand what ‘went wrong’. Perhaps you erected a structure that you didn’t think required approval as it seemed so ‘small scale’? Or purchase you purchased a property with an existing non-compliant development? Or a specific aspect of a development differs from that which was Approved by Council?
While the planning jargon can often lead to more confusion, it’s important to relax and remember that your local town planner can help you.
Council may issue a show cause and enforcement notices for matters relating to the Building Act 1975 and the Planning Act 2016. For example, if building work has been carried out without an approval, a Material Change of Use of land has occurred without a development approval or Council has become aware of a breach of development conditions. Generally, for non-urgent or non-dangerous matters, a show cause notice will be issued prior to an enforcement notice.
What is a Show Cause Notice?
A Show Cause Notice is usually the first step in Council’s enforcement process for alleged development offences. The notice sets out Councils understanding of the alleged response and invites you to respond to Council. The response or representations will then be considered with the facts and circumstances in determining if an enforcement notice is to be issued. If the show cause notice process is managed properly you may be able to circumvent Council from issuing an Enforcement Notice.
What Should I Do?
It is important not to panic and remember that Council have a duty of care to take particular actions to protect the health, safety and amenity of the community.
Step 1: Ensure that you respond to the Show Cause Notice within the response period, which is a minimum of 20 business days from receipt of the notice.
Step 2: If you cannot take steps to remedy the non-compliance and provide a response to Council, it is advised that you engage a Town Planner or Property Lawyer to investigate and provide guidance on your rights, investigate the alleged breach and respond to Council.
The key here is communication. Our advice is to speak to Council as soon as possible to understand the alleged breach. Professional advice if often required. Your town planning consultant will know who to speak to and how best to approach the situation. When providing a response, you are encouraged to provide supporting information, which will assist Council in determining if they should take further action.
One option to resolve the breach could be to submit a Development Application and obtain Development Approval from Council. It is important to obtain advice on the likelihood of obtaining approval, based on the development constraints, zoning or the condition of the works carried out.
What is an Enforcement Notice?
An Enforcement Notice is a statutory notice which requires you to take particular actions to remedy an offence within a required time frame. The notice provides you with an opportunity to consider your options and resolve the matter in a timely way.
What if I don’t Comply with the Enforcement Notice?
Failing to comply with an enforcement notice could lead to:
- Fines being issued (if the non-compliance is ongoing). The maximum fine is just over $600,000;
- Legal proceedings commencing; and/ or
- Council carrying out the work and then recovering the cost from you.
If the enforcement items are not resolved, you could face a fine or legal proceedings via the Planning & Environment Court. In order to avoid a Show Cause or Enforcement Notice, speak to Private Town Planner early on, and if possible, prior to undertaking any building works.
If you have any questions, please speak to Wall Planning & Environmental Consulting today – we are more than happy to help.