Development enforcement notice

An enforcement notice is a document which requires you to take actions to remedy an offence. The notice provides you with the opportunity to consider your options and resolve the matter in a timely way. Council can issue an enforcement notice under Section 168 of the Planning Act 2016 for a development offence.

An enforcement notice might relate to:

  • carrying out assessable development without a permit;
  • contravening a development approval; and/or
  • use of premises where the use is not a lawful use.

 

Reasons for receiving an enforcement notice

You may receive an enforcement notice if Council reasonably believes that there is an offence involving a land use or works for which you are liable, and it has not been remedied. Please note that while you may not have originally commenced the use/undertaken the works, responsibility passes to a new owner upon completion of a property transfer.

As part of an investigation, Council may have first given you a show cause notice, giving you an opportunity to provide your perspective in the matter. However, sometimes Council will proceed directly to an enforcement notice if it considers appropriate to do so e.g. where a structure, such as a retaining wall, is a threat to health and safety.

Council will only issue an enforcement notice after determining that it is reasonable in all the circumstances.

 

Requirements of an enforcement notice

The notice will require you to either do certain things, or stop doing certain things (or both). Requirements commonly include:

  • stop carrying out development;
  • stop a stated use of a premises;
  • demolish or remove works;
  • restore, as far as practicable, premises to the condition the premises were in immediately before the development started; and/or
  • apply for a development permit.

Each requirement will carry a particular time frame. For example, Council may require you to prepare and lodge an application within 20 business days.

 

Complying with notice requirements

Whilst Council always encourages the public to voluntarily comply with legislation, it has a duty to investigate matters and to take particular actions to ensure compliance as well as to protect the health and safety of the community.

Please be aware that if you do not comply with the requirements of the enforcement notice within the time frames, Council may:

  • issue a Penalty Infringement Notice (PIN);
  • initiate legal proceedings at the Magistrates Court or Planning and Environment (P&E) Court; or
  • carry out the required work and recover the cost of works pursuant to the Local Government Act 2009.

 

Resolving the matter

To resolve the matter, you may wish to employ the services of a consultant town planner, engineer, or solicitor to give you advice on the matter. These professionals may be able to give you an understanding of the required time and costs involved, if any, in resolving the matter.

Alternatively, you may wish to speak with a Council Technical Advice Officer on 131 872 regarding town planning or engineering matters.

If you resolve the matter before the date within the enforcement notice, we encourage you to notify Council to arrange for a further inspection, so that the investigation can be finalised as soon as possible.

An example case study is provided below of how a matter can be resolved with as little difficulty as possible, as well as avoiding any further unnecessary costs.

Council issued an enforcement notice for the importation of 100m3 of earth to a property. The quantity of earth was greater than that permitted by the Toowoomba Regional Planning Scheme 2012.

The notice required the owner to:

  • submit a development application for Operational Works; or
  • remove from the premises the imported earth and restore, as far as practical, the premises to the condition the premises were in immediately before development started.

The owner had a three month period in which to make an informed choice and take the necessary steps.

After seeking advice from a town planning consultant and engineer, the owner decided that obtaining a development approval would be too costly. The owner decided it would be easier to remove the earth from the property in accordance with the requirements of the notice.

At the end of the three month period, Council officers re-inspected the property and were satisfied that that the earth had been removed. Council closed its investigation into this matter without the need for further enforcement action.

 

Confidentiality

Council deals with the personal information of all parties to an investigation in a strictly confidential manner. We will not disclose your personal details, or the details of any complainant, to any party.

Council will not reveal the source or details of a complaint or complainant to a third party. You may be able to make a Right to Information request about the matter. However, details such as the name and address of the complainant will generally not be available to an applicant under the privacy legislation.

For detailed information on privacy matters, please contact Council’s Customer Service Centre on 131 872.

 

Appealing a notice

You may appeal the issue of an enforcement notice to the Building and Development Dispute Resolution Committee, or the Planning & Environment Court. Generally, an appeal must be started within five business days if the notice is for a dangerous structure, e.g. a retaining wall, or 20 business days if the notice is for any other purpose.

However, if you do have concerns, Council would urge you to immediately raise these with the Council officer named in the notice to avoid progressing to a costly appeal when your concerns might be easily resolved. If you do intend to proceed with an appeal, you would be strongly advised to seek independent legal advice, planning advice, or engineering advice.

 

Related information

Development Enforcement Notice Information Sheet INFO 034 (PDF for print)

Queensland Government Department of State Development, Manufacturing, Infrastructure and Planning website - Information about planning laws

Building show cause notice information

Building enforcement notice information

Development show cause notice information

 

Disclaimer

The information contained in this sheet is a guide only.

This information has been prepared by Toowoomba Regional Council to help customers gain an understanding of Council’s responsibilities for investigating matters under the Planning Act 2016. Please consult the relevant legislation for detailed information as the content of this information sheet is not intended to replace the provisions of such.