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
You should obtain legal advice before responding to a show cause
or enforcement notice given the potential significant
Development Offence under SPA
The most common development offences for which enforcement
notices are given under the SPA include:
Description of Offence
Carrying out assessable development without permit – a
person must not carry out assessable development unless there is an
effective development permit for the development.
Compliance with development approval – a person must not
contravene a development approval, including any condition of
Offences about the use of premises – without lawful
excuse a person must not use premises if the use is not a lawful
The maximum penalty for each of these offences is 1665 Penalty
Units, or $202,964.
For an enforcement notice to be valid, it must:
be in writing and describe the nature of the alleged
inform you of your right to appeal against the giving of the
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
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.
Cooper Grace Ward is a leading Australian law firm based in
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 contact Cooper Grace Ward
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If an owner wants to remove a caveat, issuing a lapsing notice is a quick and easy way to shift the problem to the caveator.
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