Offences

Offences include activities such as:

• failure to comply with a provision of a lease
• undertaking a prohibited development
• undertaking a development that requires development approval without approval
• undertaking a development that breaches conditions of a development approval.

Offences can result in controlled activity orders, rectification directions, prohibition notices, penalties or injunctions.

Penalties

The penalty for offences under the Planning and Development Act 2007 are in some cases significantly higher than the penalties applying under the previous Land Act 1991.  For example, the maximum penalty for a corporation who undertakes development without approval is 2500 penalty units or $1 250 000.  The increased penalties are closer to the levels applying in NSW and other Australian jurisdictions. Penalties for offences are on a sliding scale, depending on whether the offence was intentional, reckless or negligent, or a strict liability. Some offences under the Criminal Code 2002 also apply.

However, if a person undertakes a development in accordance with an existing development approval and the development is, under the new legislation, prohibited or exempt from requiring development approval, it is not an offence to undertake the approved development. Also, if a development is exempt from requiring development approval and the development is commenced while the exemption applied but the exemption was removed before the development is completed, the development remains lawful.  Similarly, the use of land, a building or structure remains lawful provided the use remains authorised by the relevant lease, licence or permit. This is despite any change in law that stops the use from being exempt from approval and despite the case of any use not being continuous.

If the use is authorised by a lease, the use remains lawful even if the lease is sold (or subject to other dealing) or renewed. However, this protection is lost if the lease is surrendered or terminated, if the affected lease expires and no application is made for a further lease or the use is authorised by a licence or permit and the licence or permit ends (whether on expiry or otherwise and even if renewed).

Injunctions

ACTPLA or anyone else may apply to the Supreme Court for an injunction where a person has engaged, is engaging or proposes to engage in conduct that was, is, or could be, a contravention of a controlled activity order or prohibition notice. The Supreme Court may grant an injunction restraining a person from engaging in particular conduct or requiring the person to carry out other actions if:

• satisfied the person has engaged in the conduct regardless of whether the Court considers the person intends to engage again or continue to engage in the conduct; or
• it appears to the Court that it is likely the person will engage in the conduct whether or not the person has previously engaged in the conduct and whether or not there is imminent danger of substantial damage to someone else.