Owner Land Fails to Comply With Any Planning Scheme

– sections 126(2)(a) and 126(2)(b) of the Planning and Environment Act 1987
Land PropertyA section 173 agreement under the Planning and Environment Act 1987 (‘the Act’) is a legal contract made between a responsible authority (commonly your local council) and an owner of land (or prospective owner) which sets out conditions or restrictions on the use or development of the land.

For example, a Council may require a section 173 agreement to reflect that a slab has been built to a particular height to indemnify a local council in the event of a flood.

If the owner contravenes with the section 173 agreement, this is an offence pursuant to section 126(2)(a) of the Act. If the owner fails to comply with the section 173 agreement, this is an offence pursuant to section 126(2)(b) of the Act.

It is also an offence for an owner to contravene or fail to comply with any relevant planning scheme or permit.

Examples of Owner Land Contravenes or Fails to Comply With Any Planning Scheme
  • An owner develops their land in contravention of a planning scheme
  • An owner uses their land in a way that fails to comply with a section 173 agreement
  • An owner fails to comply with a permit applying to the land
Questions in cases like this
  • Did the accused person own the land in question?
  • Did the accused person contravene a planning scheme, permit or a section 173 agreement?
  • Did the accused person fail to comply with a planning scheme, permit or a section 173 agreement?
What are some of the possible defences to Owner Land Contravenes or Fails to Comply With Any Planning Scheme?

Defences to this charge are ordinarily based on some element of the offence not being made out. These defences include:

  • No relevant planning scheme, permit or section 173 agreement existed.
  • The owner did not use or develop their land in contravention of a planning scheme, permit or section 173 agreement.
  • The owner did not fail to comply with a planning scheme, permit or section 173 agreement applying to the land.

Another common defence to this charge is honest and reasonable mistake of belief.

Maximum penalty and court that deals with this charge

FineThis offence carries a maximum penalty of 1200 penalty units (a $193,428 fine).1

If the contravention or failure to comply is of a continuing nature, a further penalty of not more than 60 penalty units (a $9.671 fine) for each continuing day after conviction may be imposed.2

The Department of Treasury and Finance reviews and updates the value of a penalty unit on 1 July each year.3 As such, the maximum fine for this offence is liable to change.

This charge is heard in the Magistrates’ Court.

As with any criminal offence, whether or not someone should plead guilty to this charge depends on the specific features of their case.

What is the legal definition of Owner Land Contravenes or Fails to Comply With Any Planning Scheme?

The legal definition of this offence is:

  1. 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.
Legislation

The relevant legislation for this offence is sections 126(2)(a) and 126(2)(b) of the Planning and Environment Act 1987.

Elements of the offence

To prove this offence the prosecution must establish:

  1. The accused person is the owner of the land
  2. There was a planning scheme, permit or agreement under section 173 in existence
  3. The owner contravened or failed to comply with the planning scheme, permit or agreement under section 173

Element 1: The accused person is the owner of the land
The ‘owner’ of land is defined in the Act as follows:

  1. in relation to land which has been alienated in fee by the Crown and is under the operation of the Transfer of Land Act 1958 (other than land in an identified folio under that Act), means the person who is registered or entitled to be registered as proprietor, or the persons who are registered or entitled to be registered as proprietors, of an estate in fee simple in the land; and
  2. in relation to land which has been alienated in fee by the Crown and is land in an identified folio under the Transfer of Land Act 1958 or land not under the operation of the Transfer of Land Act 1958, means the person who is the owner, or the persons who are the owners, of the fee or equity of redemption; and
  3. in relation to Crown land reserved under the Crown Land (Reserves) Act 1978 and managed or controlled by a committee of management, means—
    1. in Part 3, if the land is agreement land within the meaning of the Traditional Owner Settlement Act 2010, each of the following—
      1. the traditional owner group entity within the meaning of Traditional Owner Settlement Act 2010 for the land
      2. the Minister administering the Crown Land (Reserves) Act 1978
    2. in any other case, the Minister administering the Crown Land (Reserves) Act 1978; and
  4. in relation to any other Crown land, means—
    1. in Part 3, if the land is agreement land within the meaning of the Traditional Owner Settlement Act 2010, each of the following—
      1. the traditional owner group entity within the meaning of Traditional Owner Settlement Act 2010 for the land
      2. the Minister or public authority that manages or controls the land
    2. in any other case, the Minister or public authority that manages or controls the land

The concept of land ownership is complex and best discussed with a lawyer. If an accused person is the owner of land according to the above definition, the first element of the offence will be satisfied.4
 
Call Doogue + George
 
Element 2: There was a planning scheme, permit or agreement under s 173 in existence
To satisfy the second element of this offence there must be a planning scheme, permit or agreement under section 173 in existence.

The existence of a planning scheme is proven by the production of a properly certified copy of the planning scheme. A properly certified copy of a planning scheme must be certified by the Secretary to the Department of Environment, Land, Water and Planning or the secretary the responsible authority to be a true copy of the planning scheme.5

A permit includes any plans, drawings or other documents approved under a permit.6

A section 173 agreement is an agreement between the owner of the land and a responsible authority. The agreement must relate to an area of land covered by a planning scheme for which the responsible authority is the responsible authority.7 A responsible authority may enter into the agreement on its own, or jointly with another person or body.8 A responsible authority may enter into the agreement with a person in anticipation of that person becoming the owner of the land.9

If there is a valid planning scheme, permit or section 173 agreement in existence, then the second element of this offence will be satisfied.

“Did a relevant planning scheme, permit or section 173 agreement exist?”

Element 3: The owner contravened or failed to comply with the planning scheme, permit or agreement under s 173
The third and final element of this offence is that the owner contravened or failed to comply with the planning scheme, permit or section 173 agreement.

Whether or not an owner contravenes or fails to comply a planning scheme, permit or section 173 agreement is a question of fact that will depend on the details of the planning scheme, permit or section 173 agreement in question.

Sentencing in the Magistrates’ Courts

Magistrates' CourtFrom 1 July 2013 to 30 June 2016, a total of 138 cases (285 charges) were heard at the Victorian Magistrates’ Courts for contravene planning scheme, permit or agreement under s 173. There were only two sentencing forms imposed: fine (72.5%) and adjourned undertaking/discharge/dismissal (27.5%).10

From 1 July 2013 to 30 June 2016, a total of 68 cases (81 charges) were heard at the Victorian Magistrates’ Courts for fail to comply with planning scheme, permit or agreement under s 173. There were only two sentencing forms imposed: fine (70.6%) and adjourned undertaking/discharge/dismissal (29.4%).

The largest fine imposed was $20,000 or more. This was given in 2.5% (aggregate) and 1.2% (non-aggregate) of the charges. The majority of the charges resulted in a fine that is between $5,000 and $10,000 (35.8% for aggregate and 9.9% for non-aggregate).11

Other important resources

 



[1] Planning and Environment Act 1987 (Vic) s 127(a).
[2] Planning and Environment Act 1987 (Vic) s 127(b).
[3] See http://www.justice.vic.gov.au/home/justice+system/fines+and+penalties/penalties+and+values/
[4] Planning and Environment Act 1987 (Vic) s 3.
[5] Planning and Environment Act 1987 (Vic) s 140.
[6] Planning and Environment Act 1987 (Vic) s 3.
[7] Planning and Environment Act 1987 (Vic) s 173(1).
[8] Planning and Environment Act 1987 (Vic) s 173(2).
[9] Planning and Environment Act 1987 (Vic) s 173(3).
[10] SAC Statistics – Planning And Environment Act 1987 (Vic) : s 126(2)(b) – landowner contravenes any planning scheme, permit or agreement under s173 < https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/87_45_126_2_a.html >
[11] SAC Statistics – Planning And Environment Act 1987 (Vic) : s 126(2)(b) – landowner fails to comply with any planning scheme, permit or agreement under s173 < https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/87_45_126_2_b.html >