Occupier Land Contravenes Planning Scheme

– section 126(3)(a) of the Planning and Environment Act 1987

Land DevelopmentThis law refers to a situation where the occupier of any land develops that land in a manner which contravenes a planning scheme, a permit or an agreement under s173 of the Planning and Environment Act 1987.S173 agreements can be complex and costly to administer. They 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.

There are a range of enforcement options available to the responsible authority. The course of action to take will generally reflect the nature of the issue. It is suggested by Planning Victoria that the main emphasis of enforcement be geared towards obtaining or re-gaining compliance rather than punishment.

If an enforcement is not complied with, or the original allegation is serious enough, there are more robust options available. These include interim injunctions or permit cancellation requests through VCAT. If the responsible authority wants to proceed with prosecution, providing that the offence happened within 12 months of the commencement of court proceedings.

If a prosecution proceeds under s126 it is serious enough to warrant a punishment for the contravention. This will deter others from contemplating a similar contravention.

Examples of Occupier Land Contravenes Planning Scheme
  • Without permission or in contravention of an existing agreement a person subdivides land and begins building a second property.
  • A planning scheme is put in place to enhance and maintain natural landscape and character around a proposed development. It is found that waste run off from the renovation is increasing pollution in a nearby river and a public access footpath has been destroyed.
Questions in cases like this
  • Is there another avenue that may be more beneficial for both parties than prosecution?
  • I have been renting here for as long as I can remember, aren’t I allowed to make any changes I want to?
  • I am fairly confident a permit will be certified, is it an issue if I start building extensions now?
What are some of the possible defences to Occupier Land Contravenes Planning Scheme?

Defences that are available are honest and reasonable mistake of belief, lack of intent or the concept of beyond reasonable doubt. If the matter is going through VCAT then the standard of proof is to the civil standard which is on the balance of probabilities. There are also differences between rules of evidence in Magistrates’ Court and VCAT matters.

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Maximum penalty and court that deals with this charge

This offence carries a fine of up to 1,200 penalty units ($193,428 at the time of print) as the highest possible sentence. If the contravention or failure is of a continuing nature, a further penalty of not more than 60 penalty units ($9,671 at the time of print) for each continuing day after conviction may be imposed. Cases related to this offence will be heard at the Magistrates’ Courts.

What is the legal definition of Occupier Land Contravenes Planning Scheme?

Planning and Environment Act 1987 – Section 126

  1. 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 1731
Legislation

The legislation for this offence can be found on section 126(3)(a) of the Planning and Environment Act 1987.

Elements of the offence

The prosecution must establish:

  • The accused is not the owner but the occupier of the land;
  • The accused used or developed land;
  • A section 173 agreement was in existence at the time of the contravention; and
  • The works carried out on the land was in contravention of the section 173 agreement.

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. Contact a lawyer to assess factors of your case.

Sentencing in the Magistrates’ Courts

Magistrates' CourtThere were a total of 86 cases (156 charges) of Land Occupier Contravenes Planning Scheme, Permit or Agreement Under s173 that were heard in the Magistrates’ Courts of Victoria from 1 July 2013 to 30 June 2016. Most of these cases resulted in financial penalties (79.1%) while the rest led to adjourned undertaking/discharge/dismissal (19.8%) and Community Correction Order (1.2%).

Of those who were fined, 16.9% (aggregate) were in the highest category ($20,000 or more). This is also the amount imposed for the majority of those who received aggregate fines (16.9%). For non-aggregate fines, the majority were in the $500 < $1,000 category (6.2%).2

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[1] Planning and Environment Act 1987 (VIC) s126
[2] SAC Statistics – Planning And Environment Act 1987 (Vic) : s 126(3)(a) – land occupier contravenes planning scheme, permit or agreement under s173 < https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/87_45_126_3_a.html >