Why is enforcement important?
The Melton City Council is obligated by State Government Law to administer and enforce its Planning Scheme as the Responsible Authority for all land development and use within its municipal district in accordance with the provisions of the Planning and Environment Act 1987.
The Melton Planning Scheme regulates the development and use of all land within its municipal district so that it meets agreed community objectives. The Melton Planning Scheme is law (a subordinate instrument). As with any other law or regulation, the Melton Planning Scheme is only effective if the regulatory requirements are administered and enforced.
The objectives of enforcement are to:
- ensure compliance with
- avert or prevent threatened breaches of
- stop existing breaches of
- punish for breaches of the Melton Planning Scheme, planning permits and their conditions and agreements made under section 173 of the Planning and Environment Act 1987.
When is enforcement action appropriate?
Enforcement occurs when there is a clear breach of the Planning and Environment Act 1987, the Melton Planning Scheme, permit condition or section 173 agreement and the breach warrants enforcement, especially if it causes detriment to the Melton community. The main emphasis of enforcement is to obtain compliance rather than prosecution of offenders. Various enforcement options are used by the Melton City Council to achieve compliance.
What are the enforcement options available?
Depending on the nature and seriousness of the problem, the Melton City Council can do one or more of the following:
- negotiate informally with the alleged offender; this type of positive conciliation may avoid the need for formal action and should usually be the first step taken
- serve a planning infringement notice - usually for less serious breaches or matters ($758) for a natural person and ($1,517) for a body corporate
- issue a notice of contravention specifying a time to bring the site into compliance
- apply to the Victorian Civil and Administrative Tribunal (VCAT) for an enforcement order to achieve compliance
- apply to VCAT for an interim enforcement order where there is a need for immediate action
- start prosecution proceedings, this must be commenced within 12 months of the alleged offence for land development but does not apply to an alleged offence of land use
- in accordance with the provisions of the Planning and Environment Act 1987 Section 125, Council may seek an injunction from the Court to restrain a person from contravening an enforcement order or interim enforcement order
- seek an injunction from the Court without the aid of Section 125 of the Act. This is done under general common law to restrain a person from contravening a law i.e., planning controls. In most cases, the action must be taken in the name of the Attorney-General or with the Attorney-Generals knowledge and consent.
- request VCAT to cancel or amend a permit - for example for a substantial failure to comply with the conditions of a permit. To the extent that the permit relates to carrying outbuildings or works or subdivision; this action is only available until these are substantially carried out.
- carry out work to secure compliance with an enforcement order or interim enforcement order and recover the cost of doing so.
Enforcement Order proceedings are designed to stop existing or unlawful planning activities and to achieve reinstatement. They are not designed to punish. Only a Section 126 prosecution will do that.
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 a 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.
Administration and Enforcement
Council's Planning Services Department is responsible for administering and enforcing the Melton Planning Scheme and the Planning and Environment Act 1987.
- providing misleading information on an application, 60 penalty units ($9,571.40)
- when no penalty has been expressly provided for an offence under the Act. 1,200 penalty units ($193,428.00)
- where an infringement notice has been issued for contravening a scheme, permit or 173 agreement, 5 penalty units ($805.95) in the case of a natural person, 10 penalty units ($1,611.90) in the case of a body corporate
- obstructing an authorised officer or member of the police force, 60 penalty points ($9,571.40)
- a person who insults, assaults or obstructs a member of a panel, a person attending a hearing before a panel, or misbehaves at a hearing repeatedly interrupts a hearing or disobeys a direction of the panel, 60 penalty points ($9,571.40)
Contact our Planning Services Unit on 9747 7200.