When considering the most appropriate enforcement action to take, local governments have discretion to consider whether to take enforcement action based on the available evidence and the circumstances of the individual investigation. It is helpful to consider enforcement as a spectrum moving from left to right, where considerations include the offence in issue, the outcome sought and the history of the matter.
Take no action
Where discretionary powers exist, local governments may elect to take no action in response to unlawful activity, even though it has been identified. Such action is appropriate where there is either, insufficient evidence, or the alleged unlawful activity is very minor, unlikely to be repeated and rigid adherence to the law could result in a detrimental outcome and not be in the public interest.
Informal communication
Local governments may have informal discussions with an offender prior to taking formalised, or non-statutory steps. When engaging in informal communication, officers need to explain what needs to be done and why. Officers should consider if there are any barriers to compliance and be reasonable in respect of any timing and requirements that are suggested. It is important that all informal communication is recorded.
Formal communication
Formal communication includes letters of demand, warnings and final warning letters. Formal communication may be all that is needed to achieve compliance. Formal communication is appropriate for small scale activity, where there is minor harm, where the offender has a good history of compliance, where the warning will likely deter the offender and where the offender has already voluntarily commenced or taken steps to achieve compliance.
Show cause notice
Under section 167 of the Planning Act 2016 (Qld) (PA), show cause notices are, generally, a necessary first step before giving an enforcement notice.
The purpose of a show cause notice is to inform a person that the local government intends to issue an enforcement notice and to invite that person to make representations about the issues dealt with in the notice. It is important that a show cause notice alleges all the offences that the local government believes may have been committed. If there is uncertainty around which offence is relevant then a show cause notice should allege all possible offences.
Enforcement notice
A local government may issue an enforcement notice under the PA if it reasonably believes a person has committed or is committing a development offence. A reasonable belief is a belief reasonably held based on logically probative evidence. It is more than a suspicion or mere speculation.
An enforcement notice may require a person to either refrain from committing a development offence or to remedy the effect of a development offence in a stated way. If a notice has multiple requirements, then a different period for compliance may be given for each separate requirement if needed. An enforcement notice must be specific and unambiguous, otherwise it may be successfully challenged in Court.
Outside of the planning framework, legislation may permit similar types of notices to be issued (e.g. local law compliance notice).
Court
A local government may initiate criminal proceedings in the Magistrates Court when an individual or company has committed a development offence. Proceedings in the Magistrates Court for development offences are criminal in nature. These prosecutions are used to address conduct that constitutes a statutory offence and will likely result in a penalty (such as a fine). These proceedings can also be commenced for matters outside of the planning framework (e.g. food licence breach).
In contrast, civil proceedings – such as those brought in the Planning and Environment Court – are typically used to seek compliance or enforcement orders, and do not involve criminal charges or penalties. Civil proceedings may be more appropriate where the aim is to stop or correct unlawful activity, rather than punish past conduct.
For further information, please reach out to a member of our Planning and Environment team.