This article is the last in our series examining the key provisions of the Planning Act 2016. In this edition, we will also consider the new Planning and Environment Court Act 2016. Both Acts are expected to commence on 3 July 2017.
The Planning Act introduces a significant increase in the penalty for committing a development offence, with the maximum penalty for an offence committed by an individual being increased to 4,500 penalty units ($548,550.00) from 1,665 penalty units ($202,963.50). A maximum penalty of 17,000 penalty units ($2,072,300.00) applies where a development offence relates to undertaking assessable development on a Queensland Heritage place or a Local Heritage Place without a development permit. Note that the maximum penalty that applies to a corporation is an amount equal to five times the maximum penalty for an individual.
While the Planning Act is due to commence on 3 July 2017, the higher penalties for development offences came into effect on 19 May 2017, with the commencement of the Local Government Electoral (Transparency and Accountability in Local Government) and Other Legislation Amendment Act 2019. The amending legislation introduced "bring forward provisions" with amendments being made to the Sustainable Planning Act to reflect the higher penalties.
The Planning Act retains the types of development offences currently applicable under the Sustainable Planning Act 2009. These offences include:
- carrying out assessable development unless all necessary development permits are in effect for the development;
- contravening a development approval (including any conditions of a development approval);
- using premises for a use that is not a lawful use.
Enforcement of development offences
The Planning Act retains show cause notices and enforcement notices as tools that enforcement authorities may utilise where the enforcement authority reasonably believes that a person has committed or is committing a development offence.
Depending on the circumstances, an enforcement authority (currently referred to as an "assessing authority" in the Sustainable Planning Act) could be, for example:
- the assessment manager;
- a referral agency, for matters within the agencies functions for the development application; or
- the local government.
Generally, a show cause notice is required to be given by an enforcement authority prior to an enforcement notice being issued. However, the Planning Act sets out certain circumstances in which an enforcement agency need not give a show cause notice before giving an enforcement notice.
Such circumstances include (but are not limited to) where a development offence relates to:
- a Queensland heritage and local heritage place;
- works that the enforcement authority reasonably believes are a danger to persons or a risk to public health;
- the demolition of works; or
- the clearing of vegetation.
The Planning Act also includes new provisions which enable the Chief Executive to appoint inspectors, who may be an officer of the department or another person prescribed by regulation. Inspectors will have a range of powers to investigate alleged development offences, including the ability to enter premises either by consent or in accordance with a Magistrate granted warrant.
Court based enforcement orders
Under the Planning Act, the Magistrates Court and Planning and Environment Court (P&E Court) retain broad powers to hear proceedings relating to alleged development offences and to issue enforcement orders.
The Planning Act introduces new provisions whereby, unless a Court orders otherwise, an enforcement order made by the Magistrates Court or the P&E Court, must be recorded on relevant land title. The enforcement order attaches to the premises and binds the owner, the owner's successors in title and any occupier of the premises. In order to have the enforcement order removed from the title, a person must apply to the relevant Court to obtain a compliance order by providing evidence of compliance with the enforcement order. The compliance order may then be provided to the registrar of titles who must remove the enforcement order from the land title.
The new Planning and Environment Court Act
The Planning Act is supported by a new Planning and Environment Court Act 2016 (P&E Court Act). In recent years, the jurisdiction of the P&E Court has expanded significantly, with it now having jurisdiction conferred on it by over 20 different pieces of legislation, including the Sustainable Planning Act. Given the wide jurisdiction of the P&E Court, the provisions establishing the jurisdiction and powers of the Court have been transferred out of the planning legislation and into a stand-alone Act. The Planning Act continues to describes appeal rights and appeal periods.
The Planning Act and P&E Court Act retain many of the concepts currently contained in the Sustainable Planning Act, including the ADR process and the powers of the ADR Registrar to hear and determine certain proceedings.
The existing P&E Court Rules will continue to apply for up to six months after the commencement of the P&E Court Act or earlier if repealed by a provision of new rules made under the P&E Court Act.
A fundamental difference under the P&E Court Act is that the general position regarding costs of a proceeding will be reversed, such that each party to a proceeding will bear the party's own costs. While the P&E Court Act is due to commence on 3 July 2017, the reversal of the costs provisions have come into effect already under the amending legislation referred to above.
The P&E Court does have the jurisdiction to award costs in certain limited circumstances, including:
- if the P&E Court considers the proceeding was started or conducted primarily for an improper purpose, including for example, to delay or obstruct;
- if the P&E Court considers the proceeding to have been frivolous or vexatious, including for example, if the proceeding was started or conducted without reasonable chance of success;
- if a party fails to follow the Court's procedural requirements;
- if an assessment manager, referral agency or local government has failed to actively take part in a proceeding; or
- if the responsibilities of an applicant, submitter, assessment manager, referral agency or local government are not properly and adequately discharged.
If you would like to know more about how these changes might affect you, please contact a member of our team.