A recent decision in the Victorian Civil and
Administrative Tribunal, Hume CC v Ecotec Woodwaste Pty
Ltd  VCAT 599 ("Hume") has again highlighted
the strict liability application of section 126 of the Planning and
Environment Act 1987 (Vic) against the owner of land even though
the offence was caused by a lawful occupier of the
The decision involved the granting of enforcement orders against
both the tenant (and associated parties) and the landlord for
breaches of the local planning scheme arising from the use of the
property by the tenant for a "materials recycling"
facility without a planning permit. The tenant had been dumping
building material waste on the land in piles up to and exceeding 10
The Tribunal found that a permit was required for 'Materials
Recycling'. As one had not been obtained the Tribunal ordered
all material deposited on the land was required to be removed and
the land restored to its original condition.
The landlord argued it had relied on representations by the tenant
that the activities did not require a planning permit. The landlord
also argued it had taken appropriate action to serve a 'notice
of default' under the lease and that it would be put to
significant cost to clean up the land at the end of the lease if
the tenant did not do so.
The Tribunal dismissed the landlord's arguments and included
the landlord in enforcement orders noting that "a prudent
landlord should if necessary take strong and decisive steps
early in the negotiations with the occupier, with
a view to reaching an appropriate outcome before
the situation gets out of control" At the time of writing
Hume City Council has filed the Tribunal's orders in the
Supreme Court of Victoria. This means that further orders could be
sought against the landlord, including forfeiture of the land (and
other assets if required) to the Council to cover the Council's
costs of clean up.
In Victoria, as in many jurisdictions in Australia, the planning
legislation is regarded as regulatory in nature so liability for
offences is often considered strict or absolute. So a landlord can
be guilty of a planning offence on their land even if the offence
was caused by the default or negligence of the tenant.
A landlord in Victoria could also be in breach of the:
Environment Protection Act 1970 (Vic) for offences
relating to discharge of industrial waste or pollution of land;
Country Fire Authority Act 1958 (Vic) if a fire
prevention notice is served and is not complied with.
Similar legislation applies in other states.
WHAT SHOULD LANDLORDS DO?
Ensure when entering into a lease that the tenant's
intended use either complies with any relevant local planning
scheme requirements or that there are appropriate mechanisms for
the tenant to provide evidence of compliance with the relevant
planning requirements (and a letter on Council letterhead advising
what is proposed is 'ok' or doesn't need a permit, may
not be legally sufficient). before taking occupation;
Actively monitor the tenant's use of the land to ensure the
tenant is not carrying out any activity that could breach the
applicable planning scheme, environmental protection legislation or
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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