Conducting a controlled activity can result in the making of a controlled activity order requiring cessation or remedying of the controlled activity.  Controlled activities and associated penalties are set out in Schedule 2 of the new planning system’s legislation or by regulation.

Controlled activities include:

• failure to comply with a lease condition;
• failure to keep leasehold clean;
• undertaking development without required development approval or in a manner contrary to conditions of a development approval;
• having a building or structure that was constructed without approval required by the Planning and Development Act 2007 Chapter 7;
• using unleased Territory land in a way that is not authorised by a licence under this Act or permit under the Roads and Public Places Act 1937.
• managing land in a rural lease other than in accordance with the land management agreement; or
• failure to enter into a land management agreement as required under s286 of the Act;

Making of controlled activity orders

The Authority (on its own initiative or as a result of a complaint or application) can issue a controlled activity order.  Such an order may be issued to require a person to cease a controlled activity or to remedy damage done by a controlled activity.  A controlled activity order can be directed to one or more of the following:

• a lessee or occupier of a place; and/or
• anyone by whom or on whose behalf a controlled activity was, is being, or is to be, conducted.

Show cause notice

Before making a controlled activity order, the Authority must give written notice, a “show cause” notice, of its intention to make a controlled activity order to the persons against whom the draft order is directed. The Authority reviews and then considers any representations before making the final order

Binding of orders

A controlled activity order binds each person to whom it is directed. If a lessee or occupier of a place is bound by the order, subsequent lessees and occupiers are also bound, unless otherwise provided by the order. It is an offence to contravene a controlled activity order.

Ongoing controlled activity orders

An ongoing order can only be made if the activity subject to the order relates to failing to keep a leasehold clean, the order is directed at a named person, each named person has contravened two or more previous orders relating to failing to keep the particular leasehold clean and at least two of the contraventions occurred in the past five years.

Length of orders

An “ongoing controlled activity order” remains in force according to the terms of the order which must be at least two years but no more than five.

Ending of orders

A controlled activity order operates until it is revoked or ends in accordance with the order. A person bound by an order other than an ongoing order may apply to the Authority to have it revoked stating the grounds on which it should be revoked. The Authority may revoke the order if satisfied on reasonable grounds the order is no longer necessary or appropriate.

If a controlled activity order ends other than by being revoked, the Authority must notify the Registrar-General (and all other persons who received notice under s359) in writing of the ending of the order. If an order is revoked, the Authority must notify in writing all persons given notice of the order.

Complaints

If a complaint is made and as a result, the Authority makes a controlled activity order directed to a person and that person appeals to the ACT Civil and Administrative Tribunal for review of the decision, the Authority must advise the complainant in writing of the appeal.

Penalties

Controlled activity offences may attract penalties, which are set at levels relative to 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.

The Authority or anyone else may also 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.

Actions to comply

A lessee of land may apply for development approval for a development that required approval but was undertaken without approval. The Authority must treat such an application as if the development had not been undertaken.