Enforcement notice

An enforcement notice is 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 the following legislation:

  • Section 168 of the Planning Act 2016 on the basis that a person has carried out building works which are assessable development without an effective development permit; or
  • Section 248 of the Building Act 1975 on the basis that the building, structure or building works is dangerous, dilapidated, unfit for use or occupation, or is filthy, infected with disease or infested with vermin, or there is no certificate of classification for the building.

 

Reasons for receiving an enforcement notice

You may receive an enforcement notice if Council reasonably believes that there is an offence involving a building or a structure for which you are liable, and it has not been remedied. While you may not have originally undertaken the works, responsibility will pass 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 is considered appropriate to do so (e.g. where a structure 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;
  • demolish or remove work;
  • apply for a development permit; and/or
  • to repair or rectify the work, secure the work, or fence off the work to protect persons.

Each requirement will carry a particular timeframe. For example, Council may require you to obtain a building development approval within three months.

 

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 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 timeframes, Council may:

  • issue a Penalty Infringement Notice (PIN);
  • initiate legal proceedings at the Magistrates Court of 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 private building certifier, consultant town planner, architect, 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 officer on 131 872 regarding building 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 construction of a deck without a building approval.

The notice required to the owner to:

  • provide a temporary fence around the deck to prevent public access; and
  • obtain a building development approval from a building certifier and provide Council with a copy of the decision notice.

The notice gave the owner a 10 business day period to construct the temporary fence and a further three month period in which to obtain the approval.

The owner immediately installed the temporary fence and called Council to inspect. Council was satisfied that the first requirement had been complied with. Within three months, the owner sought an approval from a private building certifier and gave Council a copy of the decision notice.

Council determined that the owner had complied with both requirements of the enforcement notice and closed its investigation into this matter without the need for further enforcement action.



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 building or structure, 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 intent to proceed with an appeal, you would be strongly advised to seek independent building advice or legal advice.

 

Confidentiality

Council deals with the personal information of all parties involved 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 complainant 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.

 

Related information

Building - Building enforcement notice information sheet INFO 031 (PDF for print)

Department of Housing and Public Works - Information about building laws

Building show cause notice information

Development show cause notice information

Development enforcement 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 Building Act 1975 or 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.