By Alric Lindsay
Over the past few weeks, the Courts heard a wide range of planning enforcement matters, mainly related to structures added to properties without planning permission. Under the Development and Planning Act, the ideal solution is demolishing the structure or applying for after-the-fact planning permission. However, when property owners experience delays in obtaining after-the-fact planning permission, they are subject to fines of up to $1,000 per day. Some have the financial means to pay, while others with lower incomes cannot manage a significant financial hit. The Courts appear to be aware of this dilemma and are taking reasonable, fair and proportionate approaches.
How the courts are addressing the dilemma
One factor influencing decisions in the Courts appears to be whether property owners have written evidence of their efforts to comply with planning breaches. The most common example is when the owners demonstrated to the Courts that they hired architects to assist them in curing planning breaches. However, as explained in several Court cases, architects may not have moved quickly enough to submit drawings or deal with other matters with planning authorities to help owners resolve planning breaches. In other cases, the architects did not progress property owners’s matters at all.
Beyond the issue of architects, there was one recent case involving a property owner who had technical problems with his login details. These problems impacted his ability to sign into a portal and submit information to planning authorities to cure any breaches. While this is a minor inconvenience, it contributed to delays in the after-the-fact planning permission process. Like the situation with the architects, it is outside of the control of the property owners.
In these circumstances, the Courts could strictly apply the Development and Planning Act and fine each person $1,000 per day until after-the-fact planning permission is obtained. However, the issue is that those with a hundred or more days of delay may be unable to pay, considering their financial means. This is particularly challenging for lower-income persons.
Bearing in mind this dilemma, some Courts appear to be taking a practical approach when low-income persons are involved and where there is written evidence of efforts to obtain after-the-fact planning permission. That is, not just verbal statements in Court but copies of receipts, emails and submissions made.
When the Courts have accepted the explanations from property owners who presented written evidence, the Courts have generally taken a lenient and practical approach. That is, the fines paid by some property owners have been less than the $1,000 per day prescribed under the Development and Planning Act. It should be noted, however, that this has been done on a case-by-case basis after analysing the circumstances specific to each case.
Other suggestions
In addition to the Courts considering the foregoing approach, there is a suggestion that the Development and Planning Act should be amended to stipulate that daily $1,000 fines should cease upon submission of documents to start the after-the-fact planning application process. Additionally, fines could be structured differently, perhaps set out in tiers, depending on the extent of efforts made by the relevant persons to comply with the planning breaches. Further, persons could receive percentage reductions in penalties when any failure to comply is outside the control of the property owners.
Summary
Notwithstanding that Courts have recently taken a lenient approach, property owners should still endeavour to comply with the Development and Planning Act, i.e., seek planning permission prior to making any material additions to properties. This is because the planning authority may not forgive you later but may ask you to demolish a structure, especially in cases with a risk of environmental damage.
For those unaware of the law who committed a breach, it is essential to quickly cure the breach once they receive an enforcement notice. Those who appear in the Courts because of non-compliance with enforcement notices must provide written evidence to the Courts of their efforts to comply. Otherwise, they may not benefit from the existing generosity of the Courts in reducing or applying lower penalties.
