Fail to Comply With Planning Scheme, Permit or Agreement Under s173

Fail to Comply With Planning Scheme, Permit or Agreement Under s173 is found in section 126(1) of the Planning and Environment Act 1987 in Victoria. It is committed by a person who used or developed land in contravention of, or failed to comply with a planning scheme, or a permit, or an agreement under, section 173 of Planning and Environment Act 1987.

Have you been accused of Fail to Comply With Planning Scheme, Permit or Agreement Under s173?

Interview
Have you been contacted by the Authorities to be interviewed about an allegation of Fail to Comply With Planning Scheme, Permit or Agreement? It is important to seek legal advice before speaking with the Authorities to make sure you understand your rights. You don’t want to answer questions which may compromise any defence available to you.

An interview is part of the investigation. The investigator can use what you say as evidence to support a case against you in Court. Often the investigator has already decided that they will charge you, regardless of whether you answer any questions or not. They will not reveal the material they have gathered and you may inadvertently assist their investigation.

Pleading Not Guilty
If you want to fight a charge of Fail to Comply With Planning Scheme, Permit or Agreement, we will work hard to carefully examine the investigation and look for any issues. Something might have been missed, or there might be issues with the evidence the Authorities do have.

Our lawyers take a pro-active approach when representing our clients and will conduct our own through investigation.

Pleading Guilty
If you decide to plead guilty to Fail to Comply With Planning Scheme, Permit or Agreement, our experienced lawyers will work with you to best prepare for a plea hearing. Our lawyers might be able to argue that the summary of offending should change because it may not accurately describe what actually happened.

Our lawyers can also advise how best to prepare for the plea hearing, including organising character references and supporting materials. This preparation can make all the difference when you ultimately attend Court and appear before a Magistrate. Ultimately, in a case like this, they want to see there has been compliance.

Sentencing
Sentencing in the Magistrates’ Courts of VictoriaSentencing Statistics Pie Chart for Contravene or Fail to Comply With Planning Scheme, Permit or Agreement Under s173 in the Magistrates' Courts
Which court will the case be heard in?
As a summary offence, any summons for this charge will primarily be handled by the Magistrates’ Court.

What is the legal definition of Fail to Comply With Planning Scheme, Permit or Agreement Under s173?
  1. Any person who uses or develops land in contravention of or fails to comply with a planning scheme, or a permit, or an agreement under section 173 is guilty of an offence.
  2. The owner of any land is guilty of an offence if—
    1. the land is used or developed in contravention of a planning scheme, a permit or an agreement under section 173; or
    2. there is any failure to comply with any planning scheme, permit or agreement under section 173 applying to the land.
  3. The occupier of any land, is guilty of an offence if—
    1. the land is used or developed in contravention of a planning scheme, a permit or an agreement under section 173; or
    2. there is any failure to comply with any planning scheme, permit or agreement under section 173 applying to the land.
  4. This section does not apply to the owner of Crown land.
Examples of Fail to Comply With Planning Scheme, Permit or Agreement Under s173
  • An obligation under a s173 agreement that allows for ongoing community access to a building, which is not being adhered to. The agreement states that a part of the building must be accessible to the public from 9-5 Monday to Saturday. However it is discovered that it is not being opened on Saturday as it is too costly.
  • It has been agreed that development of land will occur in stages however the local council discovers that the developers are moving faster than in the original agreement.
  • Adjoining land owners have not been consulted during the planning of a development.
Elements of the offence
The elements of this offence are:

  • The accused has used or developed land; and
  • The manner that the accused has used or developed land does not comply with the conditions of the relevant planning scheme, permit or agreement under section 173 of the Act.
Defences
Defences that are available might relate to your intent and the factual matrix of the alleged offending. It may be that what a lawyer would do is not exactly to defend the charge but to explain it in a way that the Magistrate will understand why it happened and eventually deal with it leniently.

The decision on whether to plead guilty or not guilty to this charge can best be made only after a careful study of the strengths of your case. We need to make a careful and objective evaluation of the evidence that the Prosecution can prove against you.

Often the main emphasis on enforcing agreements under section 173 are to obtain compliance rather than prosecuting offenders. Keeping vigilant records and having transparent auditing process can be beneficial if there is non-compliance discovered.

Questions in cases like this
  • Who is the responsible authority (other party) I need to contact in relation to the agreement?
  • I have just moved into a place and don’t remember agreeing to a s173 agreement. How can I be accused of not complying with an agreement I’m not sure if I signed?
  • What will be the first step the responsible authority will take if a breach is discovered? What powers do they have?
Maximum penalty and court that deals with this charge
The offence of Fail to Comply With Planning Scheme, Permit or Agreement Under s173 (s126(1) of the Planning and Environment Act 1987) carries a fine of 1200 penalty units ($193,428) as the highest possible sentence. Please note that this penalty is applied generally to the act where a section is silent on penalty. It should be noted that more significant breaches of this section would see a penalty in the higher end of the sentencing range.

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