If a local government in Western Australia suspects that unlawful development is being carried out on land, then one of the primary enforcement options available to the local government (aside from prosecution) is to issue a direction pursuant to section 214 of the Planning and Development Act 2005 (WA) (PD Act). Directions issued under section 214 of the PD Act are also colloquially known as “stop work orders” or “pull down orders”.
As the names suggest, a “stop work order” (issued under section 214(2) of the PD Act) requires alleged unlawful development to stop immediately, whereas a “pull down order” (issued under section 214(3) of the PD Act) requires alleged unlawful development to be removed and land reinstated within a specified period (of not less than 60 days).
Similar enforcement powers exist with respect to building work under the Building Act 2011 (WA), under which local governments may issue a “building order” in specified circumstances where suspected unlawful building work is occurring. There are also “heritage conservation notices” that can be issued by local government pursuant to Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) in respect of heritage places.
What do you do if you are a landowner, developer or builder and you receive a direction from local government under section 214 of the PD Act (or some similar statutory notice)?
What you should not do is to simply ignore the direction. That is because a failure to comply with a direction issued under section 214 of the PD Act is a criminal offence (see section 214(7) of the PD Act). The maximum penalties for breaching an offence provision under the PD Act are significant and are currently $200,000 in the case of a natural person and $1,000,000 in the case of a body corporate, with the potential for additional daily penalties in the case of ongoing non-compliance (see section 223 of the PD Act).
Whilst it is relatively easy for a local government to prepare and issue a section 214 of the PD Act direction, they are often based upon mere suspicion that development is unlawful and the question of whether development actually is unlawful can often be complicated. For example, development that may appear at face value to be unauthorised may actually enjoy non-conforming use rights. Similarly, a particular development may not actually require development approval if it is construed as having some particular land use classification under a local planning scheme that is a permitted use in the relevant zone.
If you have received a direction under section 214 of the PD Act from local government and believe that it should not have issued (for whatever reason), then there is a right of review of the decision to issue the notice to the State Administrative Tribunal (SAT). Even if you have received a direction under section 214 of the PD Act in circumstances where development is quite clearly unauthorised, the commencement of SAT proceedings may be strategically beneficial, such as if there is an intention to apply for retrospective development approval to have the development in question authorised.
Importantly, once a SAT review is commenced in respect of a section 214 of the PD Act direction, the SAT has the power to grant a stay order, which if made, basically means that the legal effect of the direction is put on hold until further order or until the conclusion of the SAT proceeding. Stay orders from the SAT can be particularly useful in circumstances where there is a desire to mediate with local government or where unauthorised development can be regularised by way of a retrospective development approval.
A recent example of a section 214 of the PD Act direction being successfully reviewed through the SAT can be found in the decision of My Foodie Box Limited and City of Bayswater [2023] WASAT 4. In that matter, the local government had issued a direction under section 214 of the PD Act on the basis that a business had no development approval in place in circumstances where the local government believed that development approval was required under the relevant local planning scheme.
The SAT in that matter ended up reasoning that the section 214 of the PD Act direction should not have been issued, on the basis of the finding that the business in question was actually a permitted land use in the relevant zone (as a matter of land use classification), development approval was not actually required and there was accordingly no unlawful development being carried out.
If you would like to discuss section 214 of the PD Act and the options available for responding to such a direction, please do not hesitate to contact Lavan’s planning and envirnoment team.
