The Supreme Court (Shaun Page and Anor v Manningham City Council [2010] VSC 267) has recently upheld findings of the Victorian Civil and Administrative Tribunal (Tribunal) which confirmed the power of councils to issue a Planning Infringement Notice (PIN) for offences under the PE Act and to subsequently bring enforcement proceedings under that enactment.
The Court’s ruling outlines the broad nature of council powers in respect of breaches of the PE Act, planning permits and planning schemes. The decision confirms that companies and individuals who breach the PE Act can be exposed to monetary penalties and can further be ordered make good the offending act or development.
Background
The PE Act provides several enforcement options to councils where there exists a breach of the PE Act.
Division 1 of Part of 6 of the PE Act concerns enforcement proceedings. It provides that any person may seek enforcement orders from the Tribunal for a breach of the PE Act, Planning Scheme, planning permit or planning agreement. Enforcement orders have a broad scope and can include orders requiring the restoration of land to its pre-existing condition or the cessation of a particular use or development.
Division 2 of Part 6 of the PE Act concerns offences and penalties. A person who is guilty of an offence under the PE Act can be prosecuted and penalised up to 1200 penalty units (currently $143,340) and a further 60 penalty units (currently $7,167) per day for ongoing offences. Under Division 2, a council can alternatively issue a PIN for an offence (currently $1,194.50 for a company or $597.50 for an individual). The processes relating to a PIN are established under the Infringements Act 2006.
It is relatively common practice for councils to first issue a PIN or initiate a prosecution in the Magistrates Court, and then later commence enforcement proceedings.
Tribunal and Court decisions
The matter before the Tribunal (Manningham CC v Page [2010] VCAT 143 (4 February 2010)) considered an application by the council for enforcement orders following the unauthorised clearance of native vegetation in order to provide access to a proposed swimming pool.
The council sought orders requiring the preparation and implementation of a re-vegetation plan for the relevant property. The council had already issued a PIN and the related fine had been paid in and the respondent argued that an enforcement order would effectively constitute a second penalty for the same offence. The Tribunal found against the applicant and in its reasons identified a difference between the civil nature of enforcement proceedings and criminal nature of a PIN.
The applicant appealed the Tribunals decision to the Supreme Court and the primary issue in Page v Manningham City Council was whether the council, having issued a PIN was precluded from initiating enforcement proceedings.
The Court considered the interaction between enforcement proceedings and PINs under the PE Act. It further examined the wording of the Infringements Act 2006 and in particular section 33 which indicates that upon complying with an infringement notice (in this case a PIN) ‘no further proceedings may be taken against the person on whom the notice was served in respect of the offence…’.
The Court confirmed the Tribunal’s view by finding that there are ‘fundamental’ differences between enforcement applications and PINs.
The Court held that an enforcement order is a civil remedy directed at rectification of planning contraventions whereas a PIN is punitive in nature and which requires that the Council establish the alleged breach beyond reasonable doubt (i.e. a criminal burden of proof). A PIN was not an appropriate mechanism by which to achieve the remedial goals of the Council being re-vegetation of the site. The Court held that the references in the Infringements Act 2006 excluding further Court proceedings merely preclude further criminal prosecutions.
Implications
The decision in Page v Manningham City Council confirms the breadth of council powers under Part 6 of the PE Act and that it is appropriate for councils to initiate enforcement proceedings seeking remedial orders in respect of planning breach in addition to issuing a PIN or prosecuting an offence.
Where an offence is successfully prosecuted, the Court has power to issue penalties in excess of $140,000.
Remedial works (such as re-vegetation or variations to buildings) or orders requiring the cessation of uses have potential to significantly interrupt development or business operations. The financial impacts of enforcement orders including lost time and compliance costs are usually greater than the direct costs associated with PINs or prosecutions.
It is critical that persons ensure their use and development has the requisite permissions in place prior to commencement and that conditions of these permissions are complied with. Where deficiencies are later identified, these matters must be proactively managed to limit risk or expensive and time consuming litigation.
For further information on anything in this article or realted areas of interest please contact the author:
Greg Tobin
Senior Associate
03 5225 5252
gtobin@harwoodandrews.com.au