Tasmanian Councils – Enforcing the Rules

We asked Thomas Cooper, Solicitor – Local Government & Planning at Simmons Wolfhagen Lawyers, to provide a snapshot of the powers local Council’s have under the Land Use Act and Building Act when a person develops or uses land under planning schemes around Tasmania.

Councils mandatory duties

In the planning and building sphere Councils have a number of coercive tools at their disposal to ensure that certain ‘things’ that must be done, are done.

Councils have powers under both the Land Use Planning and Appeals Act 1993 (‘Land Use Act’) and Building Act 2016 (‘Building Act) to require these ‘things’ are done, including stopping works, the cessation of occupancy of buildings to simply requiring that relevant approvals be obtained.  In addition to these directory powers Council can also issue infringement notices as punishment for breaches or even bring matters before the Magistrates Court as punishment for those breaches.  Councils have a mandatory duty to ensure that both of these pieces of legislation are complied with.

What can Councils do?

In some cases, permits are required under the Land Use Act for the development or use of land as controlled by the various planning schemes around Tasmania.  Where a person uses or develops land without a permit in circumstances where one is required, or a person does a thing contrary to the conditions of a permit, this is a breach of the Land Use Act, and an offence has been committed.  When faced with these breaches, Councils have two tools at their disposal to achieve compliance:

• the issuance of an enforcement notice requiring certain things be done or not done to rectify the breach, and/or
• the issuance of an infringement notice for the breach or the commencement of proceedings in the Magistrates Court seeking the punishment of the offender for that breach.

Both tools can be used together or individually to achieve compliance with the planning scheme or the conditions of a planning permit.

Similarly, under the Building Act there are requirements that must be complied with, and if breached, can trigger the need for a Council to commence enforcement action. For example, a person may undertake building works despite not having the required building permit. If Council determine that building works have been completed without the relevant permits, they can issue a Building Notice and Building Order to require action be taken, to regularise the breach.  This can include a requirement to undertake building work, demolition work or to gain retrospective approval.  As with planning, Councils may also issue infringement notices or commence prosecution in the Magistrates Court as punishment for breaches of the requirements of the Building Act.

Developers, builders and planners need to take note

This overview provides a very brief summary of the enforcement tools available to Councils in both the planning and building sphere to ensure that work is undertaken in a safe and legal way.

If you require assistance, please contact our Local Government, Planning and Development Law team or Thomas Cooper directly in our Hobart office on 03 6226 1200. Alternatively contact our Launceston office on 03 6338 2390 or Kingston office 03 6226 1200.

Or contact us by email today.