Enforcement notices issued for development offence found to be defective and set aside on appeal

Planning and Environment Court decision demonstrates why local governments must pay close attention to content and form when preparing enforcement notices

The Planning and Environment Court decision of Serratore & Anor v Noosa Shire Council [2021] QPEC 21 has highlighted the importance of ensuring attention to detail when preparing enforcement notices.

Facts

In Serratore, the Court considered an appeal against Council’s decision to give enforcement notices under the Planning Act 2016 (PA).

On 19 April 2019, Council issued an identical enforcement notice to each of the five joint owners of a parcel of land.  Each of the enforcement notices alleged that the recipient had committed, or was committing, a development offence against section 163 of the PA, namely, that vegetation had been, or was in the process of being, cleared on the land without an effective development permit.

Sometime after 14 May 2018, a large area of vegetation was cleared to create a series of bushfire access tracks for emergency vehicles and firebreaks to manage bushfire risk.  

The recipients of the enforcement notices appealed to the Planning and Environment Court.  On appeal, the Court had to consider whether the Council held a reasonable belief that a development offence had been committed under the PA and whether there were defects in the enforcement notices such that the notices should be set aside. 

Decision

The Court considered the content of the enforcement notices.  In particular, it examined the stated “reasons” for giving the notices and the stated “actions” required for compliance with the notices.

The “reasons” identified four key facts Council relied upon to establish its belief that an offence had been, or was being, committed. Those facts can broadly be summarised as satellite imagery showing clearing of vegetation, the clearing constituting assessable development requiring a development permit and no development permit having been obtained for clearing vegetation.

The enforcement notice also stated “actions” the recipients were required to take to comply with the notice.  Those actions were described as follows:

“1. Immediately cease clearing vegetation on the property ...;

2. Suitably stabilise the site to prevent movement of soils from the disturbed areas;

3. Lodge an application for a Development Permit for Operational Works to reinstate removed vegetation;

4. Undertake rehabilitation of the area cleared of vegetation.”

The appellants sought an order that the appeal be allowed and the enforcement notices be set aside on the basis of four main grounds.  

The first ground of appeal contended that there was no evidence to establish that four of the landowners were responsible for, or had control over, the vegetation clearing.  The appellants were successful on the first ground and the enforcement notices issued to four of the landowners were set aside.

The second ground of appeal contended that the enforcement notices were defective and should be set aside as they did not comply with the requirements of the PA.  The two defects which the appellants identified with the notices were:

1. The enforcement notices did not sufficiently describe the nature of the alleged development offence believed to have been committed; and
2. The enforcement notices provided insufficient details of the act/s required to comply with the notice.

Section 168(3)(a) of the PA provides that the notice must state “the nature of the alleged offence”.  To explain the level of detail required by the notice, the Court referred to the reasoning in Benfer v Sunshine Coast Regional Council^[1] and noted that “It is authority for the proposition that the development offence believed to be committed should be identified with precision in an enforcement notice.”  The Court said that this “requires the factual ingredients (elements) that constitute the offence to be identified.”

The Court was not satisfied that the enforcement notices identified the nature of the alleged offence to the level of precision required, and did not identify all of the essential factual ingredients to establish the offence.

The offence alleged was an offence against section 163 of the PA.  That section generally provides that:

(1)    A person must not carry out assessable development, unless all necessary development permits are in effect for the development.

(2)    However, subsection (1) does not apply to development carried out–

(a)    under a superseded planning scheme request agreed to by Council;^[2] or

(b)    in accordance with an exemption certificate for assessable development;^[3] or

(c)     despite the lapsing of a development approval, through the use of any security paid under a condition of the approval.^[4]

The Court analysed the elements of the offence established by section 163 of the PA.  It identified that the factual situation established by both subsections (1) and (2) of section 163 must be found to exist before an offence will have occurred under that provision.  In particular, the Court found that subsection (2) is not an exemption, excuse or justification to subsection (1), but is an element of the offence that should be within the actual or assumed knowledge of the local government.  Helpfully, the Court set out the questions that an enforcement authority is required to ask and answer in order for a reasonable belief to be formed about an offence against section 163 of the PA.  Those questions are:

1. Has a person carried out ‘development’?
2. Is the ‘development’ carried out ‘assessable development’?
3. Is the ‘assessable development’ carried out authorised by all necessary development permits?
4. If the assessable development is authorised by a development permit/s, had the permit/s taken effect at the time the development was carried out?
5. Was the assessable development carried out under an exemption certificate under s 46 of the PA?
6. Was the assessable development carried out under s 29(10)(a) (i.e. a superseded planning scheme request agreed to by Council)?
7. Was the assessable development carried out under s 88(3) of the PA (i.e. despite the lapsing of the development approval, the development was carried out through use of security paid under a condition of the approval)?

Further, the Court said that a reasonable belief that an offence against section 163 has occurred will arise where there is evidence which establishes that:

• Questions 1 and 2 are answered in the affirmative; and
• Questions 3 to 7 are answered in the negative.

As the enforcement notices in question did not answer each of the above questions, the Court found that they were defective.

The Court also criticized the lack of specificity in the notice with respect to the “actions” set out in the notice.  The “details of the act” required to be carried out were not stated in the notices.  The actions were found to be too general and lacking in objective standards by which compliance could be measured.  For example, one of the stated actions required rehabilitation of cleared areas, but there was no further detail provided about the location of rehabilitation works, the level of rehabilitation required, the period in which rehabilitation must take place or whether Council must be satisfied with the rehabilitation proposed or carried out.  The lack of detail and particularity in the stated actions were found to be defects in the notices.  

As the enforcement notices were found to be defective in a number of respects, the Court set aside each of the enforcement notices.

Implications

This case demonstrates the importance of carefully considering both content and form when preparing enforcement notices.

At the outset, it is critical that local governments identify each element of an offence for which it is considering giving an enforcement notice.  In doing so, local governments must ensure that the enforcement notice then sets out the necessary facts and circumstances in an appropriate level of detail and specificity to establish each element of the offence. 

When drafting the “actions” or requirements to comply with the enforcement notice, local governments must ensure that the details of those actions are expressed in specific, clear terms and identify objective standards by which compliance can be measured.

If you are unsure whether the content and form of your Council’s enforcement notices is appropriate, or if you are interested in making your enforcement notices more robust, please contact Terry Law or Clare Heitkonig or call us now on (07) 3243 0000 to discuss.

[1] [2019] QPELR 613 at [90] to [95].

[2] Under section 29(10)(a) of the PA.

[3] Under section 46 of the PA.

[4] Under section 88(3) of the PA.