Chapter 7: Enforcement

7.1 Enforcement and the planning system

7.1.1 Why is enforcement important?

Planning schemes are designed to regulate the use and development of land so that it meets agreed community objectives. A planning scheme is a law (technically, a subordinate instrument) that regulates the way land can be used and developed. As with any other law or regulation, planning schemes are only effective if their requirements are enforced.

_{PEA s 14(a)}
The responsible authority is required by law to efficiently administer and enforce the planning scheme.

The responsible authority will typically be the council of the municipality to which the planning scheme applies.

Enforcement is used to ensure compliance with the planning scheme, planning permits and agreements made under section 173 of the Planning and Environment Act 1987 (PE Act), and to:

• avert or prevent threatened breaches
• stop existing breaches
• punish for breaches.

7.1.2 When is enforcement action appropriate?

_{PEA s 126}
Any person who uses or develops land in contravention of, or fails to comply with, a planning scheme or a planning permit or an agreement under section 173 of the PE Act is guilty of an offence.

Enforcement should occur when there is a clear breach of the PE Act, a planning scheme, permit condition or section 173 agreement and the breach warrants enforcement, especially if it causes detriment to the community. The main emphasis of enforcement should be on securing compliance rather than on prosecuting offenders. Adopting a conciliatory approach through a process of education, communication and negotiation will more often provide a positive outcome. The various enforcement options should be viewed with this in mind.

7.1.3 What enforcement options are available?

Depending on the nature and seriousness of the problem, the responsible authority can do one or more of the following:

• Preliminary negotiation: Negotiate informally with the alleged offender. The role of enforcement often includes educating an alleged offender who may not be conversant with planning considerations and laws. This type of positive conciliation may avoid the need for formal action and should usually be the first step taken.

_{IA s 8}
• Official warning: Issue an official warning under the Infringements Act 2006 where an infringement notice is considered excessive under the circumstances.

_{PEA s 130}
• Planning infringement notice: Issue a planning infringement notice, which provides a monetary penalty and provides the responsible authority with the option to require remedial action. This is usually for less serious breaches.

_{PEA s 114}
• Enforcement order: Make an application to the Victorian Civil and Administrative Tribunal (VCAT) for an enforcement order to achieve compliance.

_{PEA s 120}
• Interim enforcement order: Make an application to VCAT for an interim enforcement order where there is a need for immediate action.

_{MCA s 25, CPA s 7}
• Prosecution: Commence prosecution proceedings in the Magistrates’ Court. This must be commenced within 12 months of the alleged offence. This time limit means that a responsible authority should not continue negotiation to secure compliance if there is a risk that the opportunity to prosecute will become unavailable. Prosecution in the Magistrates’ Court may be needed to follow up non-compliance with either an infringement notice or an enforcement order.

_{PEA s 125}
• Court injunction: Seek an injunction from a court of competent jurisdiction (Supreme, County or Magistrates’ Court) to restrain a person from contravening an enforcement order or interim enforcement order.
• Common law injunction: Seek a common law injunction from a court of competent jurisdiction to restrain a person from contravening a law.

_{PEA ss 87, 88, 89}
• Cancel or amend a permit: Make an application to VCAT to cancel or amend a permit – for example, for a substantial failure to comply with the conditions of a permit.

_{PEA s 123}
• Carry out work: Undertake work to secure compliance with an enforcement order or interim enforcement order and recover the cost of doing so.

_{PEA s 126}
A section 126 prosecution is designed to punish for what has occurred and provide a deterrent against a recurrence. It cannot directly achieve a cessation of the act complained of (or rectification or reinstatement) unless the person who is prosecuted voluntarily does this in an attempt to lessen a penalty or agrees to do it as a condition of any bond imposed by way of penalty.

It is therefore necessary to choose which of the enforcement mechanisms is the most appropriate in the circumstances. This choice will be influenced by considering any differences in procedure and standards of proof, the delay involved in getting to a final hearing and decision and what is sought to be achieved by the enforcement.

In a criminal proceeding, for example, a prosecution in the Magistrates’ Court, the offence must be proved beyond a reasonable doubt. In a civil proceeding, for example, applying to VCAT to have a planning permit cancelled, the burden of proof is to a civil standard on the balance of probabilities.

The PE Act does not stop both actions being taken at the same time.  Whether this is done is up to the body seeking enforcement.

7.1.4 What administrative arrangements should a responsible authority make?

To make its enforcement action effective, a responsible authority should consider training an officer in enforcement methods and skills. Appropriate delegations and authorisations should also be in place to enable the officer to take any necessary action, including:

_{PEA ss 133, 134}
• entry to properties to carry out and enforce the PE Act, regulations, planning scheme, planning permits, enforcement orders or agreements made under section 173 of the Act

_{PEA s 130}
• issuing planning infringement notices

_{PEA ss 114, 120}
• applying for enforcement orders and interim enforcement orders

_{PEA s 87}
• applying for the cancellation or amendment of planning permits

_{LGA ss 224(1)}
• instituting proceedings on behalf of the council under any Act, regulation or local law.

7.1.5 What is the role of the Local Government Act 1989?

Section 224 of the Local Government Act 1989 allows a council to appoint an officer to be authorised ‘for the purposes of the administration of any Act, regulations or local laws which relate to the functions and powers of the Council’.

_{LGA s 224(7)}
The powers of an officer authorised under the Local Government Act 1989 are extensive. The authorised officer may enter any land or building at any reasonable time to carry out and enforce the Local Government Act 1989 or any Act without notice.

While an officer could be authorised under the provisions of both the Local Government Act 1989 and the PE Act, the officer should be careful not to confuse the powers and duties under each Act. It would be unwise for an officer authorised under the Local Government Act 1989 to enter property using provisions of the PE Act unless that was the only authorisation relevant to the circumstances. Although there may be an inconsistency between the two Acts, the more specific (and restrictive) provisions of the PE Actare likely to prevail in these circumstances.

7.1.6 Monitoring compliance and responding to contraventions

Regular checks and inspections can be carried out by an authorised officer of a responsible authority to ensure that the use or development of land does not contravene a planning scheme, section 173 agreement or planning permit. However, due to the extent of use and development activity that goes on across a municipality, most responsible authorities rely on a complaint alleging a planning breach to trigger an investigation. A lesser number of investigations are carried out as routine inspections to monitor planning scheme compliance.

The complaint may raise matters that require referral to other council branches, such as health, building or local laws or it may fall under the jurisdiction of other authorities or agencies, including:

• Victoria Police (for example, wilful damage)
• Department of Justice and Community Safety (for example, liquor licensing)
• Environment Protection Authority (for example, major industrial noise/odour, contaminated land)
• service authorities and providers (for example, infrastructure damage)
• WorkSafe Victoria (unsafe working environment).

In some circumstances it may be appropriate for a joint site inspection to be conducted. This would be particularly relevant when the cause of complaint falls across more than one jurisdiction.

Where the owner of the land is not the occupier, the investigating officer may consider advising the owner of the matter at this preliminary stage. This gives the owner the opportunity to undertake measures to resolve the issue and may result in a more timely resolution.

Assembling Information

In each case, the investigating officer should start with a desktop audit and an initial assessment to assemble relevant facts, including (as relevant):

• zone and overlays applicable to the land and relevant provisions of the planning scheme
• occupancy and land use history (particularly where existing use rights may be a consideration)
• planning and building history, including planning permits, endorsed plans or section 173 agreements relevant to the land
• consultation with the planner who provided any advice or assessed any applications relevant to the land (where possible)
• aerial and street photography (both current and historic).

The desktop audit will assist the investigating officer to form an initial view on the nature of the suspected breach, based on information from the initial complaint and the research conducted.

Eyewitness accounts can establish when an offence was committed. In the absence of a witness, aerial photography, physical evidence on the ground and receipts or other documents may provide proof that something happened on a day, or between dates.

7.1.7 Site inspections

Following a desktop audit, an initial inspection of the land will help obtain first-hand evidence of a contravention. An officer must be authorised to enter the land.

_{PEA s 133}
The following persons are authorised to enter any land at any reasonable time to carry out and enforce the PE Act, the regulations, a planning scheme, a permit condition, an enforcement order or an agreement under section 173 of the PE Act or, if the person has reasonable suspicion, to determine whether any of them has been or is being contravened:

• an authorised person of the department
• an authorised officer of the responsible authority
• any other person whom the Minister for Planning authorises to assist an authorised officer of the Ministry or authority.

_{PEA s 134(1); SWA s 78}
Prior to entering a property for enforcement purposes an authorised officer is required to:

• obtain the occupier’s consent, or
• provide two clear days prior notice or
• obtain a warrant.

_{PEA s 136}
An authorised officer may request the assistance of the Victoria Police to gain entry to land where an occupier refuses to allow entry following the provision of two days’ notice.

_{MCA s 75}
The option to take out a warrant may be necessary where entry to a property is required without giving two days’ notice and the occupier refuses consent. A warrant is obtained from the Magistrates’ Court.

Caution should be exercised when entering all construction sites. The officer should seek out any site office or on-site constructions manager in the first instance to advise of the reason for the inspection, to obtain consent, and to obtain a hard hat and vest if necessary.

All evidence compiled should be assembled and recorded methodically and clearly by the authorised officer to facilitate a fair and accurate assessment of the alleged contravention. This documentation is important as it is the basis on which an authorised officer or responsible authority decides if further monitoring or enforcement is warranted. It would also be part of the responsible authority’s supporting information for any case the authority may make in a hearing before VCAT or during the course of legal proceedings.

_{PEA s 135}
On entering land, the PE Act provides for evidence to be obtained through a variety of means. The inspection record should detail the address of the land and the matters being investigated, together with:

• time and date of the inspection
• persons in attendance
• details of activities or development noted at the time of the inspection
• names of any persons interviewed
• details of any interviews
• photographs, measurements, sketches, recordings and samples, as required.

In some instances, regular inspections of a site may be required to monitor activities or changes. Each inspection is to be recorded.

What if an authorised officer is obstructed when trying to inspect a property?

_{LGA ss 224(3)–(4)}
If the breach or elements of the breach are not clearly apparent from outside the land, the investigating officer should request consent to enter the land from the occupier. The officer should identify himself or herself by name as an officer of the council (or department, Ministry or other authority, as relevant) and explain the reason for the inspection. It is good practice for the officer to provide a business card. Formal identification, such as proof of authorisation, a warrant or notice, should be made available if requested. An authorised officer must produce their identity card if requested to do so.

_{PEA ss 134, 135, 137; MUA s 6; SWA s 78}
A person in attendance at a premises under investigation may choose to cooperate with the investigating officer and allow immediate entry to the property but can insist on being given two clear days’ notice – unless the officer has a warrant.

It is an offence to obstruct an authorised officer from taking action in accordance with the PE Act, including obtaining entry to land to conduct an inspection. A penalty of 60 penalty units applies to such an offence.

The rate for a penalty unit is indexed each financial year so that it is raised in line with inflation. Any change to the value of a penalty unit occurs on 1 July each year and is published in the Victoria Government Gazette.

7.1.8 Negotiating compliance

For less serious or less urgent breaches, the responsible authority may consider negotiating compliance by writing to the alleged offender advising them of the breach. The letter should explain:

• the nature of the breach/complaint
• the findings of the investigation
• what needs to be done to achieve compliance
• specific timeframes to achieve compliance
• if any referrals have been made to other departments or external agencies
• details of the enforcement options available to the responsible authority should compliance not be achieved and associated penalty provisions.

The responsible authority may also consider serving an official warning under the Infringements Act 2006 and include this in the letter. More information about official warnings is provided below.

At the end of the period specified for the achievement of compliance, the enforcement officer should conduct a second inspection. This may be carried out at an earlier date where the respondent has contacted council advising that necessary actions have been taken to achieve compliance.

Where compliance has not been achieved at the time of the second inspection, the following actions may be taken:

• where appropriate, discuss the non-compliance with the alleged offender and:
  • negotiate an extended timeframe for the achievement of compliance
  • reaffirm other enforcement consequences if compliance is not achieved.

• provide further correspondence to the alleged offender detailing the failure to comply within the specified period and emphasise to both owner and occupier that continued non-compliance is evidence of a breach that may result in further actions, including punitive measures and the potential for prosecution. The correspondence should provide a second opportunity to achieve compliance, again providing an extended timeframe for compliance to be achieved.

Where compliance is still not achieved and all attempts to negotiate compliance have failed, it may be necessary to employ other enforcement options.

7.1.9 Official warnings

_{IA s 8; IA Regs reg. 12}
If the responsible authority believes on reasonable grounds a person has committed an offence but in considering all the circumstances decides an infringement notice is not appropriate, it can serve an official warning in writing in accordance with section 8 of the Infringements Act 2006 (with prescribed details outlined in the Infringements Regulations 2016).

Issuing an official warning can also be used in negotiating compliance as detailed above.

The prescribed format of an official warning does not provide for any scope to direct an offender to rectify a breach, to cease a non-compliant use and/or development or show cause why the responsible authority should not take further action. These types of directions should be specified in a covering letter accompanying the official warning.

_{IA s 10}
An official warning does not affect the power of the responsible authority to:

• commence proceedings against the person upon whom the official warning was served
• serve an infringement notice
• take no further action
• take any other enforcement action provided for in the PE Act.

_{IA s 11}
However, the responsible authority must withdraw an official warning if it is going to commence proceedings or serve a planning infringement notice.

An official warning may be withdrawn at any time within six months of the serving of the official warning.

_{IA Regs reg 13}

An official warning must be withdrawn by serving a withdrawal of an official warning on the person on whom the official warning was served. A withdrawal of an official warning must be in writing and contain the prescribed details.

7.2 Planning infringement notices

7.2.1 When is a planning infringement notice appropriate?

Planning infringement notices provide responsible authorities with a means of dealing quickly and easily with some less serious breaches of planning schemes, planning permits and agreements. They also provide an owner or occupier of land who has committed an offence a means of expiating that offence, without conviction or a finding of guilt.

_{PEA s 130}
If an authorised officer of a responsible authority has reason to believe that a person has committed an offence against section 126 of the PE Act, the officer can serve a planning infringement notice on the alleged offender.

7.2.2 What must an infringement notice include?

_{IA s 13; IA Regs reg 14}
Under section 13 of the Infringements Act 2006 an infringement notice must:

• be in writing and contain the prescribed details, including the infringement penalty (the prescribed details are contained in regulation 14 of the Infringements Regulations 2016)
• state that the person is entitled to elect to have the matter of the infringement offence heard and determined in the Magistrates’ Court (additional requirements also apply to an infringement notice served on a child).

_{PEA s 130(2A)}
In addition to these requirements, the details of the additional steps (if any) required to expiate the offence must be included in an infringement notice. Any form of infringement notice can be used as long as it includes the prescribed information.

7.2.3 What can an infringement notice require?

_{PEA s 130(4)}
In addition to requiring the payment of an infringement penalty, additional steps that can be required under an infringement notice to expiate an offence may include, but are not limited to:

• stopping the development or use
• modifying the development or use
• removing the development
• preventing or minimising any adverse impacts of the use or development that constituted the offence
• entering into an agreement under section 173 of the PE Act
• anything else required to remedy the contravention.

7.2.4 What happens if an infringement notice is served?

A person served with an infringement notice can:

• choose to pay the penalty and take other steps required by the notice, or

_{IA s 16}
• elect to have the matter of the infringement offence heard and determined in the Magistrates’ Court, or

_{IA s 22; IA Regs reg 16}
• apply to have the decision to serve the infringement notice internally reviewed by the responsible authority (the requirements for internal reviews is contained in Division 3 of the Infringements Act 2006)
• ignore the infringement notice.

_{PEA s 130 (5)–(6)}
If a planning infringement notice requires additional steps to be taken to expiate an offence and, before the end of the specified remedy period, the person served with the notice informs the responsible authority that those steps have been taken. An authorised officer must, without delay, find out whether those steps have been taken. That officer is then required to serve on the offender a further notice confirming whether the required steps have been taken.

_{IA s 32}
Once the penalty has been paid and any required additional steps taken, the offender has ‘expiated’ the offence and no further proceedings can be taken. It is therefore important for a notice to state precisely what steps are needed, such as stopping, modifying or removing the development or use that constituted the offence.

If the person believes that they have not committed an offence, it is advisable that they contact the responsible authority to clarify the situation and, if necessary, obtain legal advice. However, if the person recognises that an offence has been committed and that the requirements of the notice are a reasonable way of rectifying the situation, it is wise to pay the penalty and comply with the other requirements of the notice.

Failure to pay the infringement penalty by the date specified in the infringement notice may result in further enforcement action being taken.

A responsible authority proposing to use planning infringement notice procedures should note that:

• Serving an infringement notice gives an alleged offender the opportunity to expiate an offence by paying the penalty and carrying out the other requirements. Anybody receiving an infringement notice can choose to ignore it, although this action could result in further action by the responsible authority and the incurring of further costs. An unpaid infringement notice can be registered by a responsible authority with Fines Victoria for collection and enforcement.  If an infringement notice is not complied with, it must instead be heard at the Magistrates’ Court by prosecuting the original offence (for a breach of section 126 of the PE Act) that gave rise to the issue of the planning infringement notice. It is not a prosecution of any failure to comply with the planning infringement notice itself. An unsatisfied planning infringement notice does not generate a new offence, so it cannot be prosecuted.
• Unless the notice is withdrawn, the responsible authority must be prepared to prosecute an offender through the Magistrates’ Court every time a penalty is not paid or the required additional steps are not carried out. Failure to prosecute will render infringement notices an empty threat. An infringement notice should not be served unless there is enough evidence about the offence to take the case to court as the offender is entitled to have the matter of the infringement offence heard and determined in the Magistrates’ Court.
• If a prosecution follows an infringement notice, the court cannot force the offender to carry out the required additional steps set out in the notice. If the responsible authority wants to try and directly achieve the carrying out of these additional steps, it needs to apply for an enforcement order at VCAT.

_{CPA s 7}
• The 12-month period allowed for commencing a prosecution relating to the subject matter of an infringement notice is calculated from the time of the alleged offence, rather than from the discovery of the alleged offence or the deadline for a contravened planning infringement notice.

For more information on the infringement notice process, refer to the Infringements Act 2006, the Infringements Regulations 2016 and the Attorney-General's Guidelines to the Infringements Act 2006 (Department of Justice and Community Safety 2022) available at justice.vic.gov.au.

7.2.5 Can an infringement notice be withdrawn?

_{IA s 18, CPA s 7}
The responsible authority may withdraw an infringement notice by serving a withdrawal notice. A withdrawal notice can be served at any time before the outstanding amount of the infringement notice together with any penalty reminder notice fee are registered with Fines Victoria.

7.2.6 When might withdrawal of a notice be appropriate?

_{IA s 18(4)}
A notice cannot be withdrawn in situations where the required steps have been taken by the offender and the penalty has been paid.

_{IA s 18(3), 18(5)}
If an infringement notice does not require any additional steps to be taken, it can be withdrawn even if an infringement penalty and any penalty reminder notice has been paid. In this circumstance, any penalty or fee must be refunded. Withdrawal may be appropriate if the alleged offender can convince the responsible authority that there was no offence, or that they will rectify the alleged offence if the notice is withdrawn.

Withdrawing a notice may also be necessary if the responsible authority realises, after serving it, that the notice was an inappropriate action in the circumstances. The authority may decide that it wants positive action to fix the problem and should have sought an enforcement order. It may realise that the evidence available could not lead to a finding of guilt by the court.

A responsible authority should, wherever possible, avoid having to withdraw a notice. If the points above are carefully considered before a notice is served, a responsible authority should rarely have to withdraw an infringement notice.

_{IA s 19; IA Regs reg 15}
A withdrawal notice must be in writing and contain the prescribed details and state that the responsible authority intends to proceed in respect of the infringement offence by:

• continuing proceedings and issuing a summons, or
• issuing an official warning, or
• taking no further action, or
• taking any other specified action permitted under the Infringements Act 2006 or the PE Act, that is, commencing proceedings in the Magistrates’ Court or applying for an enforcement order at VCAT.

7.2.7 Internal reviews

_{IA s 22}
An alleged offender or their representative may apply to the responsible authority for review of the decision to serve the infringement notice.

_{IA s 24; IA Regs reg 16}
The review must be undertaken by an officer not involved in the issuing of the infringement notice. Usually this is a more senior person in the agency. Reviews must be completed within 90 days after the agency receives the application. However, this can be extended if the agency seeks additional information to consider the matter. Once the decision is made, the agency must provide the applicant with written confirmation of the decision within 21 days.

You can find more information about internal reviews in the Attorney-General's Guidelines to the Infringements Act 2006 (Department of Justice and Community Safety 2022) available at justice.vic.gov.au.

7.2.8 Paying penalties

_{PEA ss 129}
Penalties are to be paid directly to the responsible authority. Most councils provide for payments online, over the phone, by post or in person. Contact the relevant council to determine their payment method options.

_{IA s 29}
The responsible authority should be ready to take further action promptly (such as serving a penalty reminder notice, prosecution or seeking an enforcement order), if a penalty is not paid or any required additional steps are not taken by the date specified.

7.3 Enforcement orders

7.3.1 What is an enforcement order?

An enforcement order is intended to prevent or stop unlawful planning activity and to achieve reinstatement. Enforcement order proceedings are not designed to punish by way of a financial penalty. Part 6 Division 2 of the PE Act addresses prosecution, which is discussed below in Chapter 7.4.

_{PEA s 114}
Any person, including a responsible authority, may apply to VCAT for an enforcement order to rectify a breach of a planning scheme, planning permit or section 173 agreement, or to avoid the commission or continuance of such a breach.

It is important that the system allows any person to apply for an enforcement order, as it provides:

• a potential form of sanction against an authority that is not properly enforcing the planning scheme (such as if a responsible authority is reluctant to take action on a particular case or where it is itself acting in contravention of planning laws)
• protection for an authority from unwarranted demands that it take enforcement action (which may not be appropriate or in the public interest).

An individual can take the matter directly to VCAT rather than relying on the responsible authority.

A responsible authority can seek an enforcement order through VCAT at the same time as it prosecutes a planning offence in the Magistrates’ Court (and seek an appropriate penalty).

_{PEA s 124}
Any enforcement order or interim enforcement order is binding on every subsequent owner and occupier to the same extent as if the order had been served on them, so there is no need to serve new notices.

7.3.2 How is an enforcement order made?

_{PEA s 114}
A person seeking an enforcement order may apply to VCAT for the order. An enforcement order can be issued against an owner, occupier or any other person who has an interest in the subject land, such as a developer.

_{VCATA s 67; VCAT Rules rr 4.03(1), 8A.03}
An application for an enforcement order is made to VCAT and must be made in accordance with the VCAT Rules. An application must:

• be submitted in the appropriate application form published on VCAT's planning disputes webpage
• be in writing
• contain the full name and address of the applicant and the respondent
• contain a brief description of the issue or matter in dispute
• state the remedy being sought from VCAT
• include an electronic address for the applicant.

VCAT’s website provides a platform for completing application forms online and for filing them electronically. A fee is payable, which can also be paid online when the application is lodged.

VCAT fact sheet – Enforcement Orders under the Planning and Environment Act 1987 provides general information and guidance on making an application for an enforcement order or interim enforcement order, including advice on the procedures to be followed.

_{PEA s 115}
When a person applies for an enforcement order, VCAT will direct they give notice of their application to the responsible authority, the person against whom the order is sought, the owner and the occupier of the land, and any other persons that may be affected by the grant of the enforcement order.

7.3.3 Options for the respondent to an enforcement order

On being served with an application, a person against whom an order is sought (‘the respondent’) has two options:

_{PEA s 117; VCATA Sch 1, cl 56; VCAT Rules r 8A.02}
1. Contest the application: This is done by lodging an objection with VCAT under Schedule 1, clause 56 of the Victorian Civil and Administrative Act 1998 (VCAT Act). VCAT must then give specified persons a reasonable opportunity to be heard or to make written submissions in respect of the application.
_{PEA s 116}
2. Take no action: If no other objections are lodged from other relevant parties, VCAT may directly make an order under section 116 or may reject the application. The order may be in the terms set out in the application or in different terms if VCAT thinks fit.

7.3.4 Objections to an application for an enforcement order

_{VCATA Sch. 1 Cl. 56; VCAT Rules r 8A.02}
Relevant interested or affected parties may object to the grant of an enforcement order by lodging a statement with VCAT within 14 days of the date of service of the application. This includes a person against whom an order is sought (for situations where they may believe there is no contravention or an order ought not to have been made in the circumstances).

An objection must be in writing and must set out the grounds for making the objection using VCAT’s statement of grounds form (available on the VCAT website). A copy of any objection must also be served on the applicant and the responsible authority (if not the applicant) within the 14-day period.

_{PEA s 116}
If VCAT does not receive any objections to an application for an enforcement order, it can make any order it thinks fit in accordance with section 119 of the PE Act (see below), or it can reject the application altogether.

_{PEA s 117(1)}
If VCAT receives an objection to the application within the period specified in the notice, it must give the following persons a reasonable opportunity to be heard or to make written submissions in respect of the application:

• the responsible authority
• any person against whom the enforcement order is sought
• the owner of the land
• the occupier of the land
• the applicant for the enforcement order
• any other person whom it considers may be adversely affected by the enforcement order
• any person whom it considers has been or may be adversely affected by the contravention.

VCAT will typically schedule a hearing to consider the matter. All relevant parties will be sent a notice of the hearing. If the applicant, respondent or any other affected person does not attend the hearing, VCAT may make orders in that person’s absence.

_{PEA ss 117(2), 119}
Following the consideration of all relevant matters, VCAT may reject the application or issue an enforcement order in accordance with section 119 of the PE Act to:

• direct a person to stop a use or development within a specified time
• direct a person not to start a use or development
• require that a building be maintained in accordance with the order
• direct that other things be done within a specified period to restore the land:
  • as closely as possible to its condition before the contravention occurred, or
  • to some other specified condition, or
  • to some other condition acceptable to the responsible authority or a specified agency, or
  • otherwise ensure compliance with the PE Act, scheme, condition of planning permit or section 173 agreement.

_{VCATA s 116(2)}
A copy of the order must be served on all relevant persons. This is done by VCAT or by a party specified by VCAT.

7.3.5 Awarding costs

VCAT’s approach to awarding costs in applications for enforcement orders is different to its approach in other matters. VCAT has awarded costs in enforcement matters more commonly than in normal planning reviews especially where, despite requests and warnings, there is a ‘persistent and unjustified’ failure to comply with planning controls.

_{VCATA s 109}
Although enforcement proceedings warrant a different approach to costs than that taken in normal planning reviews, the successful party is not entitled to being awarded costs as a matter of course. Each case must be viewed on its merits.

7.3.6 Interim enforcement orders

_{PEA s 120(1); VCATA s 68(3)}
Where circumstances require more immediate action, a responsible authority or person who has applied to VCAT for an enforcement order under section 114 of the PE Act may also apply for an interim enforcement order.

The application form, available from VCAT’s website, allows for an application to be made for an interim order at the same time as the enforcement order. Refer to Chapter 7.3.2 of this chapter for information about the form and procedures.

Interim enforcement orders are similar to interlocutory injunctions made by courts. The purpose of these proceedings is to preserve the status quo until the hearing and subsequent determination of the case.

_{PEA s 120(2)}
The important distinguishing feature of an interim enforcement order application is that it may be considered by VCAT without notice to any person. Hence these applications can ensure a prompt response.

_{PEA s 120(3)}
Before making an interim enforcement order, VCAT must consider:

• the effect of not making the interim enforcement order
• whether the applicant should give any undertaking as to damages
• whether or not it should hear any other person before the interim enforcement order is made.

Other matters which may be considered include the urgency of the matter and whether irreparable harm will be caused if the order is not granted.

_{PEA s 120(9)}
If VCAT makes an interim enforcement order without notice to a person, it must give any affected person an opportunity to be heard within seven days of making the order.

_{PEA s 120(4)}
The service of an interim enforcement order and the types of remedial measures it may require are similar to those of an enforcement order and may include stopping or preventing commencement of a use or development.

_{PEA ss 120(10), 121}
VCAT has the power to cancel or amend an enforcement order or interim enforcement order at any time.

_{PEA s 150(4); VCATA ss 75(2), 78(1)}
The PE Act and VCAT Act make specific provision for payment of compensation for loss or damage as a result of proceedings that have been brought vexatiously or frivolously, or in order to secure or maintain a direct or indirect commercial advantage for the person who brought the proceedings. This should be considered before seeking an interim enforcement order which may cause significant loss to affected parties.

7.3.7 What happens if an enforcement order is not complied with?

_{PEA s 14}
A responsible authority has a statutory duty to enforce any enforcement order or interim enforcement order.

_{PEA s 122(5); VCATA s 133}
If a person has not complied with an order, they can be prosecuted in the Magistrates’ Court for this offence. In such a prosecution, it is not necessary to prove the scheme and controls or the breach of them, only that the order was properly made and had not been complied with. To assist in obtaining compliance, the penalties for failure to comply with an enforcement order or interim enforcement order are substantial. They involve both imprisonment under the VCAT Act (which is not a penalty available for prosecution under section 126 of the PE Act) and fines.

_{VCATA s122}
An enforcement order that has been contravened can be filed in the Supreme Court. The enforcement order effectively becomes an order of the Supreme Court and can be prosecuted accordingly.

_{PEA s 123}
Furthermore, the responsible authority can carry out any work required by an enforcement order or interim enforcement order that was not carried out within the specified period. With the consent of VCAT, any other person may also carry out these works. The cost of carrying out these works is then recoverable as a debt from the person in default.

Any responsible authority or other person contemplating taking such direct action should proceed with great caution and only on the basis of well-informed legal advice.

7.4 Prosecution for a breach of the Act

7.4.1 The role of prosecution in planning enforcement

_{PEA ss 126, 127}
The statutory planning system ultimately relies on the fact that planning schemes are part of the law of Victoria and that any person who uses or develops land in contravention of, or fails to comply with, a planning scheme, planning permit or section 173 agreement or an enforcement order is guilty of an offence. Penalties apply and are referred to in more detail below.

Prosecution for a breach under section 126 of the PE Act takes place in the Magistrates’ Court. Prosecution for a breach of an enforcement order or interim enforcement order under section 133 of the VCAT Act takes place in the Supreme Court. It is a form of criminal proceeding and offences must be proved on the same standard as any other criminal proceeding – that is, beyond a reasonable doubt.

7.4.2 When is it appropriate to prosecute an offence?

If a person has not complied with an infringement notice, some further action must be taken. It is not an offence to ignore an infringement notice. However, a person who ignores a notice does not expiate the offence and so remains open to prosecution or other action relating to the infringement notice.

Alternatively, the responsible authority may consider the breach and its associated impacts to be so significant, or an infringement notice would be inappropriate because of the risk of future breaches, that prosecution would be the most appropriate action to take in the first instance.

_{PEA ss 127, 131}
If the responsible authority is concerned about continuing unlawful use of land, prosecution for the offence may be the most appropriate remedy. A penalty of up to 1200 penalty units is provided. If the offence does not stop when a person is convicted, a further penalty of up to 60 penalty units per day, for as long as the offence continues, may be applied. The continuing penalty will most often make the offender cease the offending use. (See Chapter 7.1.7 for information about penalty units). In the case of unlawfully demolished heritage buildings, the Governor in Council may declare by an order published in the Government Gazette under section 131 of the PE Act that land may not be used or developed for a period of time not exceeding 10 years.

Prosecution for an offence to carry out development may not be helpful where the responsible authority wishes to see the development removed or modified to comply with the scheme. Given the offence was to carry out the development, the prosecution does not provide a basis to secure its removal or require restoration works.

In such cases, it may be more appropriate to seek an enforcement order to direct that the development be removed or modified. If this is not complied with, there would be an ongoing offence of failing to comply with the order. However, remembering that both processes may happen simultaneously, prosecution may still be appropriate if the responsible authority considers that the nature of the offence makes it appropriate that the person be fined, convicted or both.

_{PEA s 122(5)}
Even if the offence relates to an alleged unauthorised use, it may still be preferable to seek an enforcement order to direct that the use cease, especially if there is room for some dispute about whether the use in fact breaches the planning scheme. The standard of proof necessary at VCAT is a civil standard (balance of probabilities) which is less than the criminal standard (beyond a reasonable doubt) which applies in the Magistrates’ Court. Additionally, VCAT may be better placed than the Magistrates’ Court to consider matters of interpretation to characterise the land use or development that is alleged to have contravened the PE Act. There is the added consideration that, if VCAT makes an enforcement order, any failure to comply with that order can be separately prosecuted in the Supreme Court without the need to separately prove the original breach of the PE Act to criminal standards.

Section 126 is not the only offence section in the PE Act:

• Section 137 creates an offence of obstructing an authorised person or member of the police force taking action under sections 133–136 (powers of entry). The penalty provided for in section 137 is 60 penalty units.
• Section 169 creates an offence of behaving in an insulting or obstructive manner at a panel hearing. The penalty provided for in section 169 is 60 penalty units.

(See Chapter 7.1.7 for information about penalty units.)

7.4.3 Procedure in prosecution

_{MCA s 25}
Prosecution usually takes place in the Magistrates’ Court, which has jurisdiction to hear and determine (among other things) all summary offences. An offence under the PE Act is a summary offence – an offence that can be heard by a magistrate sitting alone, rather than by a judge and jury.

The PE Act is silent on who can prosecute an offence. At least, for the purposes of section 126, it would be the responsible authority and its authorised officer. As well as the person breaching the planning control being guilty of a section 126 offence, the owner and the occupier of the land are also guilty of that offence.

_{PEA s 128}
If a body corporate (also known as a corporation) commits an offence against a specified provision of the PE Act, an officer of the body corporate also commits an offence against the provision if the officer failed to exercise due diligence to prevent the commission of the offence by the body corporate. The specified provisions are sections 48(2), 93(3), 126(1), 126(2), 126(3) and 137. Section 128(3) of the PE Act sets out the matters a court may have regard to in determining whether an officer of a body corporate failed to exercise due diligence. An officer of a body corporate may:

• rely on a defence that would be available to the body corporate if it is charged with the same offence, and in doing so, bears the same burden of proof as the body corporate
• commit an offence whether or not the body corporate has been prosecuted for, or found guilty of, that offence.

_{PEA s 129}
If an offence has been prosecuted by the responsible authority, any penalty is paid to the responsible authority.

If the prosecution is successful, an order for costs will usually be made against the defendant in favour of the person who has brought the charge. However, if the defendant is successful and the prosecution fails, the defendant is normally entitled to an order for costs. The costs, which are usually ordered by a court to be paid, are called party/party costs and do not provide full indemnity for the costs incurred by a successful party.

_{VCATA s 98(1)}
In comparison to seeking an enforcement order at VCAT, prosecuting a planning non-compliance offence in the Magistrates’ Court is more difficult to prove because it has to be proven beyond a reasonable doubt, whereas at VCAT the burden of proof is the civil standard. Additionally, in the Magistrates’ Court the normal rules of evidence apply, whereas VCAT is not bound by the rules of evidence.

It is beyond the scope of this guide to give advice on court procedure. If prosecution is contemplated, legal advice should be sought. Similarly, a person who is being prosecuted under the PE Act needs to take the matter seriously and obtain legal (and possibly other professional) assistance, because the penalties that may be imposed are significant.

7.5 Injunctions

7.5.1 Types of injunction proceedings

An injunction is a court order that requires a party to do or refrain from doing a specific act. A party that fails to comply with an injunction faces penalties and may have to pay damages or accept sanctions.

_{PEA s 125}
In planning, there are two ways an injunction can be obtained from a court to restrain non-complying activities. The PE Act only mentions one of these. Section 125 of the PE Act allows an application to a court or VCAT for an injunction restraining any person from contravening an enforcement or interim enforcement order. The other option is a general common law injunction.

_{SCA ss 31, 33, 37; CCA s 37; MCA s 100}
The Supreme Court, the County Court and the Magistrates’ Court (subject to some limitations) have power to grant injunctions under section 125 and general common law injunctions.

_{VCATA s 123}
VCAT also has the power to grant an injunction applied for under section 125 of the PE Act.

In addition to a section 125 injunction, a responsible authority has the option to seek a general common law injunction. The two types of injunction are discussed in more detail below.

7.5.2 Section 125 injunctions

_{PEA s 125}
A section 125 injunction is used to restrain a person from contravening an enforcement order or interim enforcement order.

The PE Act gives a responsible authority or any other person the right to apply for the injunction. The PE Act avoids the technical arguments that general common law injunctions attract such as whether the intervention or fiat (consent) of the Attorney-General is necessary.

Section 125 injunctions may be applied for, whether or not proceedings have been instituted for an offence under the PE Act. However, there must be a contravention of an existing enforcement order or interim enforcement order.

7.6 Cancellation and amendments of permits

7.6.1 Can a permit be cancelled or amended?

_{PEA s 87}
When non-compliance with a planning scheme involves a permit, VCAT may, if requested to do so, cancel or amend the permit.

VCAT may only do this when there has been:

• material mis-statement or concealment of facts in the original permit application, or
• a substantial failure to comply with the conditions of the permit, or
• a material mistake in the granting of the permit, or
• a material change of circumstances since the permit was granted, or
• a failure to give notice as required by the PE Act.

Cancellation is probably the ultimate sanction against the person wishing to use or develop the land under a planning permit.

7.6.2 Who may apply for cancellation or amendment?

_{PEA ss 87(3), 89(1)}
The responsible authority or specified persons can apply to VCAT for an order cancelling or amending a permit.

_{PEA ss 88, 89(3), 91(5)}
An application needs to be made as soon as possible. VCAT may refuse to hear an application unless the person making it has done so as soon as they became aware of the facts supporting the application.

Further, VCAT is unable to cancel or amend a permit (at least in relation to development) if the development has already been substantially carried out, or, in relation to a subdivision, if the plan of subdivision has been registered.

_{VCATA s 67; VCAT Rules rr 4.03(1), 8A.03; PE Regs reg 37}
An application to cancel or amend a permit must be made in accordance with the Victorian Civil and Administrative Tribunal Rules 2018. See Chapter 5.2.1 for more information about the required documentation for the application.

In addition to the standard information requirements, the Planning and Environment Regulations 2015 require that an application to cancel or amend a permit must include:

• the name and address of the person making the request, including whether the request is made as:
  • the responsible authority
  • a person under section 89 of the PE Act (any person who objected or would have been entitled to object)
  • a referral authority
  • the owner or occupier of the land
  • a person who is entitled to use or develop the land
• a description of the land sufficient to identify it
• the name of the responsible authority (if it is not making the request)
• if known by the person making the request:
  • the name of any referral authority that was required to be given a copy of the application
  • the names and addresses of the owner and the occupier of the land (if the request is not made by the owner or occupier)

• the date on which the person making the request had notice of the facts relied on
• the facts relied on in support of the request
• if a request is made by a person under section 89 of the PE Act, the request must also include reasons why the person believes they:
  • should have been given notice (if the person was not given notice of the application
  • have been adversely affected by a matter under section 89(1)(b) of the PE Act (if applicable) by:
    • a material mis-statement or concealment of fact in relation to the application
    • any substantial failure to comply with the conditions of the permit
    • any material mistake in relation to the grant of the permit

VCAT’s website provides a platform for completing application forms online and for filing them electronically. A fee is payable, which can also be paid online when the application is lodged.

Guidance on making an application to cancel or amend a permit is also available in the VCAT fact sheet – Amend or Cancel a Permit under section 87 or 89 (and stop orders).

_{PEA s 93}
VCAT may, if it considers it appropriate, make an order that no specified development may be carried out or continued on the land, pending the final hearing of the application. This is like an interim enforcement order and usually attracts an undertaking as to damages. See Chapter 7.6.4 for more details.

7.6.3 Hearing and order

_{VCATA sch 1 cl 56}
A person seeking to oppose an application for cancellation or amendment must file a statement of grounds with VCAT using the tribunal’s statement of grounds form (available on the VCAT website). A copy of the statement of grounds must also be served on the applicant and the responsible authority (if not the applicant).

_{PEA s 90A}
The PE Act specifies what VCAT must take into account in coming to its decision. These are set out in section 84B(2).

The approach to costs in these types of proceedings is much the same as that in enforcement order proceedings. See Chapter 7.3.5.

_{PEA s 92; PE Regs regs 38, 39}
If an order is made cancelling or amending a permit, the responsible authority must serve notice of that within seven days of receiving VCAT’s decision. The notice must be given to:

• the responsible authority
• the owner and the occupier of the land concerned
• any person who asked for the cancellation or amendment of the permit
• any relevant referral authority
• any other person whom VCAT considers may have a material interest in the outcome.

7.6.4 Compensation obligations

_{PEA ss 93, 94(1), (4)}
Where a stop order is made, pending a hearing of a request to cancel or amend a permit and VCAT ultimately decides not to cancel or amend the permit, an applicant is liable to compensate the permit holder for any loss or damage suffered as a result of the stop order.

_{PEA s 94(2)}
Irrespective of whether a stop order is made, if a permit is cancelled or amended by VCAT, a responsible authority is liable to pay compensation to any person who has incurred expenditure or liability for expenditure as a result of the issue of the permit in respect of any:

• expenditure that is wasted because the permit is cancelled or amended
• additional expenditure or liability incurred by necessity in purchasing other land to use or develop in the required manner because the permit is cancelled or amended.

_{PEA ss 87(2), 94(4)}
Compensation is not payable if the reason for cancellation or amendment of the permit was due to:

• substantial non-compliance with a permit condition
• material mis-statement or concealment of facts in the original permit application
• a material mistake in the granting of the permit that arose because of the permit applicant’s conduct
• a permit being amended to comply with the Building Regulations under the Building Act 1993.

7.7 Evidence

One of the challenges with enforcement proceedings is being able to obtain evidence that is appropriate, relevant, sufficient and accurate enough to show that non-compliance has occurred or, in some cases, is going to occur.

The evidence necessary for these purposes and to gain a successful outcome is often complicated.

Essentially, the evidence needs to prove the existence of the planning control, any activity contrary to the planning control and the liability facing the person who is the subject of the proposed or existing proceedings.

Apart from the evidence necessary to prove formal matters such as the planning controls, evidence of other matters is needed. That evidence can consist of direct observations, photos, notes, admissions and information gained during an inspection. Mere assertions are not enough.

VCAT requires a more stringent standard of evidence in enforcement proceedings and in permit cancellation and amendment proceedings than in other types of reviews. Evidence is usually given on oath or affirmation rather than by assertion or written submissions. The applicant’s case needs to be proven on the balance of probabilities, but the degree of proof required must reflect the gravity of the facts to be proved.

The standard of evidence required at VCAT is a civil standard ‘on the balance of probabilities’, which is less than the criminal standard ‘beyond reasonable doubt’ which applies in the Magistrates’ Court (relevant in planning prosecutions).

7.7.1 Proof of formal matters

As part of proving the ingredients of the offence or non-compliance, it is frequently necessary to provide details of a planning scheme, permit, section 173 agreement, ownership and occupation of the land, that the land is in the municipality of the responsible authority and other similar matters.

_{PEA ss 139–146; LGA s 242}
The legislation provides shortcuts in proving such matters, either by dispensing with the requirement to provide proof of them altogether or by providing for certificates to constitute conclusive or prima facie evidence of those matters.

If the person proceeded against is not a human being (for example, a corporation, which is still a legal ‘person’), it is necessary to prove that the person legally exists. In the case of the corporation, a company search of the relevant corporation obtained from the Australian Securities and Investments Commission (ASIC) is generally such proof.

Sometimes there will be a question of whether existing use rights protect a particular activity. Proving the existence of such rights is the responsibility of the person seeking to take advantage of them.

_{CPA s 72}
Where legislation contains exceptions, provisos, exemptions or qualifications, the burden of proving that they apply in any prosecution is the responsibility of the accused.

7.7.2 Evidence of other matters

Due to the passage of time between an event occurring and the giving of evidence in relation to it, proposed witnesses (including complainants) should make running notes of what they observed and experienced. The witnesses can then use these notes to refresh their memories when giving evidence.

A great deal of valuable evidence is usually obtained in the form of admissions made by the alleged contravener when interviewed by an officer of the responsible authority. Those admissions can be used as evidence against the alleged contravener.

Where the person proceeded against is a body corporate, such as a company, care needs to be taken that the person interviewed is a person legally capable of speaking and making admissions on behalf of the corporate body.

_{PEA ss 135}
Interviews are usually more fruitful where the officer has formal proof and other relevant documents to show to the alleged contravener during questioning.

It is often necessary for entry to be made, including an inspection of the premises to ascertain if non-compliance exists. Valuable evidence can also be gathered during such a visit.

7.8 Using other legislation for enforcement

A land use related offence may not necessarily be within the jurisdiction of the PE Act. Alternative courses of action under other legislation may sometimes be more appropriate. Other legislation that may be relevant includes:

• the Heritage Act 2017 (such as for demolition of a historic building) – contact Heritage Victoria
• the Public Health and Wellbeing Act 2008 (such as for unsanitary premises and nuisances) – contact the relevant state health department or the council’s health department
• local laws under the Local Government Act 2020 (such as for parking infringements) – contact the council. In most cases the same council will also be the responsible authority for the planning scheme
• the Environment Protection Act 2017 (such as for excessive noise and disposal of wastes) – contact the Environment Protection Authority or the council, depending on which body has responsibility for the particular part of that Act.
• Individuals may also be able to bring civil proceedings in nuisance cases if statutory remedies are not available, or as an alternative to them. Legal advice should be sought in such cases.

7.9 Other information about enforcement

Further reading and assistance on enforcement can be found on the VCAT website. The Planning and Environment Division fact sheets and practice notes are especially helpful (vcat.vic.gov.au), particularly:

• Fact Sheet – Amend or Cancel a Permit under section 87 or 89 (and stop orders)
• Fact Sheet – Enforcement Orders under the Planning and Environment Act 1987

Another useful source of information is LexisNexis’s online guide to planning and environment law in Victoria.

7.10 Enforcement checklist

Delegation and authorisation

• Has an officer of a responsible authority been authorised or delegated to perform the necessary enforcement powers and duties, such as site inspections?

Nature of offence

• Have the nature and effect(s) of the alleged contravention been clarified, for example, activity, person responsible, identity of the land?

Appropriate method of enforcement

• What method of enforcement is appropriate in the first instance for a particular offence?
  • negotiation
  • official warning
  • planning infringement notice
  • enforcement order
  • interim enforcement order
  • injunction
  • prosecution
  • cancellation or amendment of a permit?

Other enforcement methods may be needed subsequently.

Entering a property

• Has the consent of the occupier of land been obtained to enter the property? Alternatively, has two clear days’ notice been given to the occupier or a warrant obtained before entering the property?

Evidence

• Can sufficient documentary and other evidence be obtained to uphold a contravention of the PE Act, planning scheme, planning permit or agreement?

Compliance

• Has all evidence and action been reviewed to determine whether compliance has been achieved or further enforcement action is required?

Payment of penalty

• Has the appropriate penalty payment been received?

Page last updated: 27/03/24