Landowner wins appeal against Council enforcement notice

The Planning and Environment Court in Benfer v Sunshine Coast Regional Council[2019] QPEC 6 has held that an enforcement notice given to a landowner in relation to an alleged development offence should be set aside due to deficiencies in the content of the notice, including a lack of detail as to the nature and timing of the alleged offence, and the unreasonableness of the action required to be taken to remedy the alleged offence.

Investigation

Mr Benfer owned land at Yandina.  In response to complaints from a member of the public, the Sunshine Coast Regional Council (Council) investigated the alleged unlawful filling of the land.  As a result of the Council’s investigation, the Council formed the belief that a development offence had been committed under the Planning Act 2016 (Planning Act).

On 11 July 2017, the Council issued the landowner a show cause notice under section 167 of the Planning Act.  The show cause notice stated that the Council reasonably believed that an offence was being committed against section 162 of the Planning Act and the facts and circumstances relied on included:

• The land was subject to the Flood Hazard Overlay;
• Approximately 10,000 cubic metres of fill material have been imported to the land;
• The placement of the fill material is located within a Flood and Inundation Area;
• Operational works for filling is assessable development and requires a development approval;
• A check of Council’s records indicates there is no current development approval.

The landowner responded by letter dated 23 August 2017 indicating he was unaware of the requirement to obtain a development approval but would take necessary steps to get a development approval.

Enforcement Notice

After considering the landowner’s submissions, the Council gave an enforcement notice to the landowner on 12 September 2017.  The enforcement notice stated the Council believed a development offence had been committed under section 163 of the Planning Act and referred to the facts and circumstances as:

• Approximately 10,000 cubic metres of fill material have been imported without the necessary development approval being in effect;
• The placement of this fill material is located within a Flood & Inundation Area as identified in the Sunshine Coast Planning Scheme 2016.

The enforcement notice further required the importation of fill to cease and fill to be removed from the land.

Appeal against enforcement notice

The landowner appealed against the decision to give the enforcement notice and sought to have the notice set aside or otherwise permanently stayed.  The notice of appeal relied on the following grounds:

• The enforcement notice did not comply with section 168(3)(a) of the Planning Act because it failed to state the nature of the alleged offence;
• It was unreasonable to require Mr Benfer to remove approximately 10,000 cubic metres of fill from the land;
• In the alternative, if it was reasonable for the Council to require Mr Benfer to remove the fill from the land, the prescribed timeframes for its removal was too short having regard to the volume of fill on the land.

In an appeal against an enforcement notice, it is for the Council as the enforcement authority to establish that the appeal should be dismissed.

Did the enforcement notice comply with the Planning Act

Having regard to the requirements for an enforcement notice under section 168 of the Planning Act, the Court concluded that the enforcement notice given by the Council failed to adequately state the nature of the alleged offence.  In particular, the enforcement notice did not identify:

• The type of development alleged to be carried out without a development permit;
• The specific provisions of the planning scheme which made the development assessable development for which a development permit was required;
• The dates, times or periods of time on which the alleged development offence was committed.

The Court held a high level of particularity was required to identify the alleged offence and level of detail provided in the enforcement notice was insufficient.

Further, an issue that emerged during the appeal was that the alleged offence occurred during a period between April 2014 and September 2017.  During this period, two different planning schemes applied to the Council area and the timing of the alleged offence straddled the operation of the Sustainable Planning Act 2009 (SPA) and Planning Act (which commenced on 3 July 2017).

The enforcement notice however only referenced an alleged offence under the Planning Act and the current planning scheme and did not particularise the basis on which it was alleged the filling was assessable development.

While the Council sought to rely on a number of grounds in support of the content of the enforcement notice being adequate, the Court ultimately did not accept the Council’s submissions that the nature of alleged offence was sufficiently identified.  The failure to identify the separate offences under the SPA and Planning Act was of particular concern to the Court.

The Court was of the view that the need to sufficiently identify the alleged offence was a critical requirement and held that the enforcement notice should be set aside due to the failure to sufficiently identify the offence.

Reasonableness of requirement to remove the fill

The Court then considered the second ground of the appeal being the reasonableness of the requirement to remove the fill.  Having regard to the submissions made by the Council, including flooding evidence presented by the Council, the Court held that:

• It was satisfied that the import of fill did not increase the risk of flooding to the subject land or any neighbouring property;
• The filling benefited the subject land;
• It was not satisfied that it was not possible or practical to take steps to make the works comply with a development approval.

Accordingly, the Court was not satisfied it was reasonable to require the fill to be removed.

Timeframe for Compliance

The Council conceded that it was reasonable to allow a period of 6 months to remove the fill, if the Court dismissed the appeal.

Conclusion

The Court held that the Council had not discharged the onus to show that the appeal should be dismissed and thus allowed the appeal and set aside the enforcement notice.

Mandatory requirements apply to the issue of enforcement notices under the Planning Act.  The failure to comply with mandatory requirements and particularise alleged offences in sufficient detail can be fatal and may result in an enforcement notice being set aside.  It is also important to ensure that requirements imposed by an enforcement notice are reasonable.

Authored by:

Stafford Hopewell, Partner

Claire Lovejoy, Director