Enforcing an enforcement notice - City of Port Adelaide Enfield v Agnello [2019] SAERDC 19

LG Leader June 2019

The City of Port Adelaide Enfield (‘the Council’) issued a section 84 notice to the defendant in August 2015 in relation to the construction of an unauthorised carport (‘the Notice’). The Notice directed the defendant to “remove the unauthorised carport from the Land” on or before 17 August 2015.

Despite the Council giving her numerous opportunities, the defendant failed to remove the carport. Whilst the defendant did lodge an application with the Council seeking retrospective development approval for the carport in November 2016, the Council was unable to deal with the application because the defendant had not paid the applicable fees and it lacked information necessary for it be to assessed. Thereafter, the Council sent a number of notifications to the defendant indicating that her application would be refused if both the appropriate information and fees were not provided.

The Council was patient with the defendant, but she failed to comply with the Council’s requests. Accordingly, in 2018 the Council sought to commence legal proceedings against the defendant for the unauthorised carport.

As a consequence of the time that had passed since the Council first became aware of the unauthorised carport, it was out of time to commence section 85 proceedings or a prosecution for failure to obtain development approval. However, it was within time to commence a prosecution for failure to comply with the direction in the Notice pursuant to section 84(11). This is because the Council had three years to commence proceedings from the compliance date listed on the Notice (i.e. on or before 17 August 2018). The Court ultimately found that the defendant’s failure to comply with the Council’s requirements over a number of years was particularly serious, especially as “the unauthorised structure on her land was at the very least a source of potential danger to not only the defendant but also to all persons coming onto the land”.

The defendant was convicted and fined $4,200 for her offence, and was also ordered to pay $1,050 of the Council’s legal costs.

This judgment confirms the importance and power of section 84 notices as an enforcement tool, particularly as the Court has iterated its willingness to treat these offences seriously.