7.4 Planning enforcement
Breaches of the Planning Act
The Planning Act sets up a number of criminal offences for breaches of planning law.
undertaking a development without a development permit if one is required under the Northern Territory Planning Scheme. This includes developing land in a way that is prohibited under the Northern Territory Planning Scheme
undertaking development in a manner which is not in accordance with a development permit, such as not complying with permit conditions
clearing native vegetation except in accordance with the Northern Territory Planning Scheme, or an interim development control order, or a permit
developing land in contravention of an interim development control order
Notices to cease
If land is being used or developed in breach of the Planning Act, the consent authority (which can be the Development Consent Authority or the Minister for Lands, and Planning and Environment) can issue a ‘notice to cease’ the development or activity that is in breach of the Planning Act.
A notice to cease can be issued to the owner, occupier, or the person developing the land. The Planning Act does not specify any time within which the person who received the ‘notice to cease’ is required to cease the activity or development. It is an offence to fail to comply with the notice.
If you believe that a breach of the Planning Act has occurred, you can report this to the Minister or to the Development Consent Authority and ask them to investigate the matter. The relevant branch to contact is the Development Assessment Services on 08 8999 6046 or at email@example.com. There is no publicly available procedure for lodging a complaint or reporting procedure for the public to follow in this situation.
The consent authority is not obliged to issue a notice and therefore has the discretion to ‘weigh up’ whether to issue a notice. There is no provision in the Planning Act that requires the Minister or the Development Consent Authority to investigate and issue a ‘notice to cease’.
Any failure to comply with a notice means the offender may be prosecuted.
Prosecutions under the Planning Act may only be brought in the name of the Development Consent Authority or the Minister. Members of the public may bring private prosecutions against offenders if they obtain the authorisation of the Minister or the Chairperson of the Development Consent Authority to bring a prosecution in their own name. Prosecutions must be started within 2 years of an investigating officer of the Development Consent Authority or the police, becoming aware of the alleged offence.
How are criminal offences prosecuted?
If the matter proceeds to court, it will be heard in the Magistrates Court in the Court of Summary Jurisdiction by a Magistrate. If the Magistrate is satisfied the person is guilty of an offence, the Court of Summary Jurisdiction may then impose the penalty. The penalties for offences are specified in the Planning Act. For more information on penalties, read our Fact Sheet on ‘Penalties‘.
It is rare for matters to proceed to the Magistrates Court. For example, a prosecution brought by the Development Consent Authority in 2006 was heard in the Magistrates Court and failed for the following reasons:
failure of the Development Consent authority to specify a time within which the defendant was to comply with the notice
the prosecution must prove the defendant intentionally failed to comply with the notice
failure to comply with the notice is the physical element of the alleged offence
the defendant had done everything they reasonably could do to comply with the notice
What may the court order?
If the Court is satisfied the person on whom the notice was served is guilty of the offence, the Court may apply the specified penalty and any additional penalty applicable under the offence (referred to in the Planning Act as a “default penalty”). The default penalty may be imposed for each day the offence continued to be committed.
The Court may also order a person who failed to comply with the notice to remedy the contravention. For example, if a person has constructed a dwelling in a zone that prohibits a dwelling, the person may be ordered by the Court to remove the dwelling.