The 'Enforcement Notice' is the principal means of enforcement and where we are of the opinion that a breach of planning control has occurred, we may issue an Enforcement Notice. The notice may order the building developer to cease any unauthorised use of the development or in some cases instruct that it must be demolished.
Enforcement Notices are legal documents that inform the recipient that their building development or use is in breach of planning control. They can be served on landowners, occupiers or any interested person. The purpose of the notices is primarily remedial. The procedure is designed to offer the developer an opportunity to make good his breach.
The Enforcement Notice will typically detail several key pieces of information that are relevant to why it has been issued. It will include an explanation of the alleged breach of planning control, specify the remedial steps required to be taken, give a time period for compliance and provide guidance on how to appeal the notice if you think it is unwarranted. An enforcement notice takes effect on the expiration of 28 days from the date of service of the notice on either the owner or occupier of the land. Failure to remedy a breach of planning control, when required to do so by an Enforcement Notice served by the Planning Department in exercise of their enforcement duties, is an offence.
If the person on whom the Enforcement Notice is served does not take the steps to correct the breach identified in the notice and continues the unauthorised development or use is guilty of an offence and is liable on conviction in the magistrate's court to be fined $100,000 with a further fine of $10,000 a day for every day the operations or use continues after the expiration of the time granted by the notice.
If the steps specified in the notice to be taken have not been taken within the time allowed for compliance with the notice, that person is guilty of an offence and liable on conviction magistrate’s court to be fined $200 000. Compliance with the terms of an Enforcement Notice does not discharge the notice. Therefore, the resumption of a use of land, after that use has been discontinued in compliance with an Enforcement Notice, will constitute a further contravention. Similarly, if development of land, by way of reinstating or restoring buildings or works, which have been demolished or altered in compliance with an Enforcement Notice, is carried out, the Enforcement Notice is deemed to apply to such reinstated buildings or works.
Points to note
- Starting building works, or making a change of use without planning permission, is not in itself an offence, nor is it a reason to refuse an eventual planning application.
- If we issue an Enforcement Notice, the person carrying out the unauthorised development and/or the owner of the land have the right to submit an application to retain the development.
- If we issue an Enforcement Notice, the person carrying out the unauthorised development and/or the owner of the land have the right of appeal to a judge in chambers. If an appeal is allowed, we can take no further action until a decision is made. If the appeal is dismissed, the period for compliance (which may have been varied by the judge hearing the appeal) begins from the date of the appeal decision
What are the time limits for taking enforcement action?
In most cases, development becomes immune from enforcement if no action is taken:
- within 4 years of the development being carried out or,
- in the case of non-compliance of any condition or limitation, within 4 years of the date of the alleged failure to comply
However, the time-limits set out above do not prevent enforcement action after the relevant dates in a specific circumstance. This is:
- where a person has deliberately concealed a breach of planning control, the courts have found that in these circumstances, the above listed time limits do not engage until the breach has been discovered. While this principle is not enshrined in our planning legislation it was established by a ruling at common law in the United Kingdom in the cases Secretary of State for Communities and Local Government and another v Welwyn Hatfield Borough Council and Bonsall / Jackson v Secretary of State for Communities and Local Government.
Therefore, in cases of deliberate concealment, we may decide to serve an enforcement notice ‘out of time’. It is for us to decide which approach is appropriate in each case.
Points to note
- if an owner or occupier on whom and Enforcement Notice is served complies with the requirements of the notice it does not discharge the notice. It remains a charge on the land and should they commence work again automatically activates the notice.
- If an application is made to retain the unauthorized development the Enforcement Notice is suspended pending the decision of the planning authorities.
- If permission is granted, any requirement for the cessation of a use or the demolition of structures is no longer valid.
- If the condition or limitation required by the grant of planning permission is varied by the planning authority the requirement for compliance imposed by the notice loses its validity.
A Stop Notice orders an individual to immediately cease any or all of the activities which are the cause of any breaches of planning control detailed in the related enforcement notice. They can require cessation in advance of the deadline for compliance with the Enforcement Notice. They cannot be served independently of an Enforcement Notice.
The Stop Notice procedure allows us to take swift and effective action because it takes effect from the day it is served. However, its misuse may involve liability to pay compensation. It may be used if the Planning Department considers it expedient that the unauthorized activity should cease even before the expiration of the period referred to in the Enforcement Notice.
Where a person on whom a stop notice is served carries out, or causes or permits to be carried out any unauthorised building, engineering, mining or other operations prohibited by the notice, that person is guilty of an offence and is liable on conviction in a magistrate’s court to:
- a fine of $500 000; and
- a further fine of $50 000 for each day after the notice was served during which the prohibited operations continue.
Note: An Enforcement Notice can require the demolition of a building erected without planning permission. A Stop Notice cannot do so.
What does a Warning notice do?
A Warning Notice may be issued and used to do the following:
- Allow us to require any information they want for enforcement purposes on any operations being carried out; any use of; or any activities being carried out on the land, and;
- to invite its recipient to respond constructively to the planning department about how any suspected breach of planning control may be satisfactorily remedied.
This is a discretionary procedure – we are not required to serve a warning notice before considering whether it is expedient to issue an enforcement notice or to take any other appropriate enforcement action
In addition to any other remedy provided by the Act, we may, in any case that we think fit, institute a civil action in the Supreme Court for an injunction to prevent any person from violating the provisions of the Act, or to enforce any enforcement notice or stop notice.