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

– section 126(1) of the Planning and Environment Act 1987
Building DevelopmentPlanning schemes are designed to regulate development so that they meet agreed community objectives. An example of this may be a building that contractually incorporates a public space open to the community.

S173 agreements can be complex and costly to administer and are difficult to amend or end. These agreements can become even more complex when land is subdivided. Negotiating these agreements can be time consuming, however it is imperative that care if given to avoid future issues with compliance.

It is important to have the rights and obligations of parties clearly set out to avoid generalities or ambiguities.

A person who uses or develops land in contravention of a planning scheme, permit or agreement under section 173 of the Planning and Environment Act 1987 (‘the Act’) has committed an offence pursuant to section 126(1) of the Act.

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.
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?
What are some of the possible defences to Fail to Comply With Planning Scheme, Permit or Agreement Under s173?

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.

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Maximum penalty and court that deals with this charge

This offence 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.

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.
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.
Sentencing in the Magistrates’ Courts

There were 175 cases (310 charges) of Fail to Comply With Planning Scheme, Permit or Agreement Under s173 that were heard in the Magistrates’ Court from 1 July 2013 to 30 June 2016. Majority of these cases resulted in financial penalties (78.9%) although there were a few that led to adjourned undertaking/discharge/dismissal (20.0%), imprisonment (0.6%), and wholly suspended sentence (0.6%).

The highest category of fine imposed was “$20,000 or more” but this was given to only 1.2% (aggregate) and 0.4% (non-aggregate) of those who were fined. The category most frequently imposed was “$5,000 < $10,000” and was given to 17.4% (aggregate) and 2.8% (non-aggregate).

ImprisonmentOnly one case led to imprisonment which was for a period that is more than 3 but less than 6 months.1

Please note that suspended sentences were abolished in Victoria for all offences committed on or after 1 September 2014.2

Other important resources
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[1] SAC Statistics – Planning And Environment Act 1987 (Vic) : s 126(1) – contravene or fail to comply with planning scheme, permit or agreement under s173 < https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/87_45_126_1.html >
[2] Suspended Sentence | The Sentencing Advisory Council < https://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-options-for-adults/suspended-sentence >