Planning compliance mechanisms

Access Canberra compliance activities are aimed at ensuring positive outcomes for industry and the community. The legislative framework includes a variety of options for dealing with non-compliance.

Non-compliance with legislation and standards

Non-compliance activities may include:

  • failure to comply with a provision of a lease
  • undertaking a prohibited development
  • undertaking a development that requires development approval without approval
  • undertaking a development that breaches conditions of a development approval

Offences can result in warnings, controlled activity orders, rectification directions, prohibition notices, penalties or injunctions.

Prohibition notices

Access Canberra can give a prohibition notice to prevent the starting or continuing:

  • of prohibited development
  • of development when it has not been approved
  • of development not in accordance with the conditions of a development approval

Serving of notice

A prohibition notice can be given to a lessee or occupier, or anyone by whom or on whose behalf the activity was, is being or is to be conducted or is likely to be conducted.

Two or more prohibition notices may be given in relation to the same activity.

It is an offence to carry out an activity that has been prohibited by a prohibition notice.

Ending of notice

A prohibition notice ends in accordance with the notice or when the notice is revoked, whichever is the earliest. A person who is the subject of a prohibition notice may apply in writing to have it revoked, stating the grounds on which revocation is sought. We may revoke the notice if satisfied on reasonable grounds the notice is no longer necessary or appropriate.

Penalties

There are penalties for offences under the Planning and Development Act 2007.

For example, the maximum penalty for a corporation undertaking a development without approval is 2,500 penalty units or $1,250,000. Penalties for offences are on a sliding scale, depending on whether the offence was intentional, reckless or negligent, or a strict liability. Some offences under the Criminal Code 2002 also apply.

However, if a person undertakes a development in accordance with an existing development approval and the development is prohibited or exempt from requiring development approval, it is not an offence to undertake the approved development.

If a development is exempt from requiring development approval and the development is commenced while the exemption applied but the exemption was removed before the development is completed, the development remains lawful.

The use of land, a building or structure remains lawful provided the use remains authorised by the relevant lease, licence or permit. This is despite any change in law that stops the use from being exempt from approval and despite the case of any use not being continuous.

If the use is authorised by a lease, the use remains lawful even if the lease is sold (or subject to other dealing) or renewed. However, this protection is lost if the lease is surrendered or terminated, if the affected lease expires and no application is made for a further lease or the use is authorised by a licence or permit and the licence or permit ends (whether on expiry or otherwise and even if renewed).

Injunctions

Access Canberra or anyone else may apply to the Supreme Court for an injunction where a person has engaged, is engaging or proposes to engage in conduct that was, is, or could be, a contravention of a controlled activity order or prohibition notice.

The Supreme Court may grant an injunction restraining a person from engaging in particular conduct or requiring the person to carry out other actions if:

  • satisfied the person has engaged in the conduct regardless of whether the Court considers the person intends to engage again or continue to engage in the conduct, or
  • it appears to the Court that it is likely the person will engage in the conduct whether or not the person has previously engaged in the conduct and whether or not there is imminent danger of substantial damage to someone else.

Rectification work planning breach

Access Canberra can direct a lessee, occupier or anyone by whom, or on whose behalf, a controlled activity was or is being conducted to carry out rectification work.

It is an offence to contravene a direction to carry out rectification work.

Rectification work may be required to:

  • ensure compliance with the conditions of a development approval
  • remedy the effects of a controlled activity in cases where a controlled activity order had been issued requiring the remedial work, but this order was not complied with or carried out within the period stated under the order.

Who is authorised?

Access Canberra may authorise a person to enter a place, subject to a notice, to carry out the work if it hasn’t been completed by the time specified in the notice.

However, an authorised person may only enter a premise to carry out rectification work with the consent of the occupier.

Work carried out by an authorised person must be in accordance with the directions of an inspector. Anything removed from the premise that is not required to be returned may be disposed of.

Recovery costs

The ACT Government may recover the reasonable cost of any rectification work carried out by an authorised person. We can determine circumstances when a lessee may defer payment of the cost of rectification work (wholly or partly). A lessee can apply for deferral of part or all costs of rectification work or Access Canberra can declare this of its own initiative.

Access Canberra must lodge a declaration with the Construction Occupations Registrar for registration and give a copy of the declaration to the lessee and anyone else with an interest in the leasehold. The ACT Government is taken to be a person claiming an interest in the leasehold and the registration creates a charge over the leasehold. This type of registered charge does not give a power of sale.

Once the cost has been fully paid, the charge is discharged upon registration of revoking a deferral declaration. The lessees of charged leasehold are liable separately and together for the payment of the charge. A registered charge does not give a power of sale over the leasehold to which it relates.

Disciplinary action

We review minor disciplinary matters and investigate complaints against licence holders. More serious matters are referred to the ACT Civil and Administrative Tribunal (ACAT).

See current disciplinary actions on the disciplinary register.

Grounds for occupational discipline

There may be grounds for occupational discipline if:

  • there is a contravention of the Construction Occupations (Licensing) Act 2004 or an operational Act
  • false or misleading information in relation to a construction service is given
  • the licensee or a director, partner or nominee of the licensee, is found guilty of an offence involving fraud, dishonesty or violence that is punishable by imprisonment for at least one year
  • the individual licensee has compounded with creditors or made an assignment of remuneration for their benefit
  • the licensee is a corporation and enters into a scheme of arrangement, or a receiver, manager, receiver and manager or administrator is appointed over the licensee or any of its assets
  • a licensee that is a corporation or partnership operates without a nominee
  • the licensee's licence has been automatically suspended and the cause of the suspension still exists.

An application for occupational discipline is made at ACAT.

Occupational discipline orders

ACAT may make orders for occupational discipline against a licensee, such as:

  • reprimand the person
  • require the person to give a written undertaking
  • require the person to complete a stated course of training to the satisfaction of the regulatory body or another stated person
  • give the person a direction (see s 67)
  • cancel or suspend the person’s licence or registration
  • disqualify the person from applying for a licence, or registration, of a stated kind for a stated period or until a stated thing happens
  • direct the Registrar to:
    - put a condition on the person’s licence or registration, or - remove or amend a condition put on the person’s licence or registration
  • require the person to pay a stated amount.

Infringement notice offences

An infringement notice may be issued for:

  • working while not holding a licence required for that work
  • pretending to be licensed
  • advertising to provide construction services, but the advertisement contravenes relevant law
  • allowing an unlicensed or inappropriately licensed person to do work that requires a licence.

An entity issued with an infringement notice can choose to pay the fine amount stated in the notice or challenge the notice in the ACT Magistrates Court.

Licence demerit points

The grounds for demerit points for occupational discipline are the same as the grounds for occupational discipline excluding those for which an infringement notice may be issued.

If the grounds for demerit points exist, the Construction Occupations Registrar records in a demerit points register the number of demerit points the licensee has incurred for the relevant construction occupation. A demerit point is incurred on the day when the Registrar first becomes aware of the disciplinary incident.

A demerit point exists for three years, which does not include time when a person was unlicensed. If a licensee incurs demerit points while unlicensed and then becomes licensed within three years, the remainder of the three years attaches to the new licence. The demerit points that were taken into account in a licence disqualification or suspension or other disciplinary action are deleted from the register when the period of the action begins.

Licensees are advised if a demerit point has been recorded and in the previous three years the licensee has had at least 10 demerit points. The only circumstance in which the registrar is not required to write to the licensee is when a notice has been sent within the previous three months.

If a licensee incurs 15 or more demerit points in a construction occupation within the previous three years, a notice of licence suspension, disqualification or other disciplinary action will be issued.

Disqualifications

Disqualified licensees are not entitled to apply for or be issued with a licence for the entire time of the disqualification. If a licensee applies for a new or renewed licence and has, within the previous three years, incurred 15 or more demerit points within the construction occupation in which they are applying, the Registrar may refuse to issue the licence.

About the disciplinary register

The disciplinary register is a list of licensed practitioners who have incurred suspensions, cancellations, occupational discipline and disciplinary action in the last 10 years.

The disciplinary register is accessible to the public and is updated when disciplinary action or suspension has been taken against a licensee.

The register includes information determined by: