Civil Penalties under the PDI Act available to all councils

In a pleasing enforcement update, the State Planning Commission has recently authorised that all councils may recover civil penalties under Section 225 of the Planning, Development and Infrastructure Act 2016 (PDI Act).

As an alternative to a prosecution, a designated entity may recover a civil penalty where satisfied that a person has committed an offence under the PDI Act.

A ‘designated entity’ is defined in Section 225(17) to include “a council acting under an authorisation granted by the Commission”. Up until recently, only a minority of councils had applied and been granted that authorisation by the Commission.

The Commission has now authorised all councils to be able to exercise this power, subject to conditions, including:

• If proceedings are commenced (rather than recovery by negotiation), the need to notify the Commission as soon as practicable after the proceedings are commenced; and
• The need to make use of the power in a consistent manner that is proportionate to the alleged offence.

In our experience in assisting councils with this process, the negotiation of civil penalties has proven to be a popular, cost-effective enforcement power that is an appropriate alternative to a prosecution. In particular, benefits of negotiating a civil penalty include that it can be negotiated outside of Court, saving both councils and the accused the time, cost and stress associated with legal proceedings. The maximum amount that can be negotiated as a civil penalty is the lesser of the maximum penalty in the PDI Act for the offence or $120,000.00.

Of course, a person who is accused of an offence under the PDI Act has no obligation to negotiate, and it may be that a prosecution is unavoidable if a civil penalty is not agreed. Further, a prosecution remains the most serious enforcement power and should generally be the preferred enforcement pathway (rather than a civil penalty) for the most serious offending. Councils should also consider updating enforcement policies (if they have one) to cater for this additional power.

We have successfully assisted a range of councils in recovering significant civil penalties for different offences, including:

• building work undertaken without development approval;
• unapproved changes of land use;
• unapproved tree-damaging activity (against both tree loppers and land owners); and
• unlawful demolition of a Local Heritage Place.

We encourage councils to consider pursuing a civil penalty when determining what enforcement powers to use under the PDI Act, and are happy to provide advice in relation to this process, including on determining what is an appropriate penalty.

For more specific information on any of the material contained in this article please contact Aden Miegel on +61 8 8217 1342 or AMiegel@normans.com.au, or Gavin Leydon on +61 8 8210 1225 or gleydon@normans.com.au