Enforcement Notices – Return of the expiation power

Under Section 84(11) of the now repealed Development Act 1993 an expiation fee applied for a failure to comply with a direction in an enforcement notice. Whilst not appropriate in all circumstances, this was a handy enforcement tool in a council’s arsenal, that some councils used quite regularly as an effective method to address non-compliance without commencing legal proceedings.

Without prior warning, the power to issue an expiation notice for the equivalent breach in the Planning, Development and Infrastructure Act 2016 (PDI Act) was removed upon its commencement.

Fortunately the recent addition of regulation 126(e) to the Planning, Development and Infrastructure (General) Regulations 2017 on 16 December 2021 has re-introduced the power to expiate for failure to comply with a direction given pursuant to Section 213(11) of the PDI Act. The new expiation fee has been set at $750.

The addition of the expiable offence gives councils another mechanism for enforcement and greater ability to address simple non-compliance without having to rely on court proceedings. Councils are therefore encouraged to review existing templates and procedures to refer to this power and consider when it may be appropriate to use.

When considering the issuing of expiation notices it is also important to be aware of the rigid legislative scheme that applies under the Expiation of Offences Act 1996 and that we are just a phone call or email away if you would like help in preparing, reviewing or advising on expiation notices.

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 Nicholas Munday on +61 8 217 1381 or nmunday@normans.com.au.