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LAND USE PLANNING AND APPROVALS ACT 1993 - SECT 64

Civil enforcement proceedings

(1)  Where a person contravenes or fails or is likely to contravene or fail to comply with a provision of this Part, other than section 48AA or 48A or section 63A , a person, other than the Commission or a planning authority, who has, in the opinion of the Appeal Tribunal, a proper interest in the subject matter may apply to the Appeal Tribunal for an order under this section.
(1A)  An applicant may only make an application under subsection (1) in relation to a contravention of or failure to comply with section 60ZB(1) or section 63(2) , or a likely contravention of or likely failure to comply with section 60ZB(1) or section 63(2) , by a person other than a planning authority if –
(a) the applicant has given, to the planning authority in whose municipal area is situated the land to which the contravention or failure relates, a notice in writing under section 63B(1) in relation to the contravention or failure; and
(b) subsection (1B) applies in relation to the contravention or failure.
(1B)  This subsection applies in relation to a contravention or failure –
(a) if –
(i) the planning authority has notified the applicant under section 63B(3) of a determination that charges are not to be laid, or an infringement notice under section 65A , or an enforcement notice under section 65C , is not to be issued and served on a person, in relation to the contravention or failure; and
(ii) before the application is made, charges are not laid, and an infringement notice under section 65A , or an enforcement notice under section 65C , is not issued and served on a person, in relation to the contravention or failure; or
(b) where paragraph (a) does not apply, if within 120 days of the planning authority being given the notice under section 63B(1) in relation to the contravention or failure –
(i) charges in relation to the contravention or failure have not been laid; and
(ii) an infringement notice under section 65A , or an enforcement notice under section 65C , has not been issued and served on a person, in relation to the contravention or failure.
(2)  The application may be made ex parte and, if the Appeal Tribunal is satisfied that there are sufficient grounds, it must issue a summons requiring the respondent to appear before the Appeal Tribunal to show cause why an order should not be made under this section.
(2A)  If an application under this section is made by a person in relation to land –
(a) the owner and the occupier of the land are taken to be parties to the application, if –
(i) the respondent to the application is the planning authority, other than by virtue of a contravention, or likely contravention, of section 63(2) by the planning authority or a failure, or likely failure, by the planning authority to comply with section 63(2) ; and
(ii) the owner or occupier is not the planning authority; and
(b) the planning authority in whose municipal area the land is situated is taken to be a party to the application, if –
(i) the planning authority is not the respondent to the application; or
(ii) a direction is made under subsection (2B) in relation to the planning authority.
(2B)  Despite subsection (1) , at any time after receiving an application made under this section, the Appeal Tribunal may direct that the planning authority, in whose municipal area the land to which the application relates is situated, be made an applicant in the application.
(2C)  .  .  .  .  .  .  .  .  
(3)  If –
(a) after hearing–
(i) the applicant and the respondent; and
(ii) any other person who has, in the opinion of the Appeal Tribunal, a proper interest in the subject matter of the proceedings and desires to be heard in the proceedings–
the Appeal Tribunal is satisfied, on the balance of probabilities, that the respondent to the application has contravened or failed or is likely to contravene or fail to comply with a provision of this Part; or
(b) the respondent fails to appear in response to the summons or, having appeared, does not avail himself or herself of an opportunity to be heard –
the Appeal Tribunal may, by order –
(c) require the respondent to refrain, either temporarily or permanently, from the act, or course of action, that constitutes the contravention of, or failure to comply with, this Part; and
(d) preclude, for a period specified by the Appeal Tribunal, the respondent from carrying out any use or development in relation to the land in respect of which the failure to comply or contravention relates; and
(e) require the respondent to make good the contravention or default in a manner, and within a period, specified by the Appeal Tribunal.
(4)  Any person with a legal or equitable interest in land to which an application under this section relates is entitled to appear and be heard in proceedings based on the application before a final order is made.
(5)  If, in proceedings under this section, the Appeal Tribunal is satisfied that, in order to preserve the rights or interests of parties to the proceedings or for any other reason, it is desirable to make a temporary order under this section, the Appeal Tribunal may at any time during those proceedings make such an order.
(6)  A temporary order –
(a) may be made on an ex parte application before a summons has been issued under subsection (2) ; and
(b) may be made subject to such conditions as the Appeal Tribunal thinks fit, including a condition that requires an undertaking by the applicant, not being a planning authority or the Crown, at whose instance the temporary order is granted to pay to the respondent any damages that the respondent may sustain because of the order; and
(c) is not to operate after the proceedings in which it is made are finally determined.
(6A)  An application for an order for payment of damages is to be made to the Appeal Tribunal.
(6B)  The Appeal Tribunal may order the applicant at whose instance the temporary order is granted to pay all or part of the damages, as determined by the Appeal Tribunal, that the respondent may sustain because of the order.
(7)  A person who contravenes, or fails to comply with, an order or a temporary order under this section is guilty of an offence.
Penalty:  Fine not exceeding 500 penalty units.
(8)  Where the Appeal Tribunal makes an order under subsection (3) (e) and the respondent fails to comply with the order within the period specified by the Appeal Tribunal, the Commission or a planning authority may, by leave of the Appeal Tribunal, cause any work contemplated by the order to be carried out, and may recover the costs of that work, as a debt, from the respondent.
(9)  The Appeal Tribunal may, if it thinks fit, adjourn proceedings under this section in order to permit the respondent to make an application for a permit that should have been but was not made, or to remedy any other default.
(10)  The Appeal Tribunal may, on an application under this section, exercise the powers conferred on it by section 62 (1) in relation to any use or development of land as if the application were a hearing of an appeal.
(11)  For the purposes of the Tasmanian Civil and Administrative Tribunal Act 2020 , an application under this section is deemed to be an appeal.
(12)  The Appeal Tribunal must make such orders in relation to the costs of proceedings under this section as it thinks fit and in making such orders must take into account –
(a) the result of the proceedings; and
(b) whether a party has raised frivolous or vexatious issues at the hearing; and
(c) whether any party has unnecessarily or unreasonably prolonged the hearing or increased the costs of it; and
(d) the capacity of the parties to meet an order for costs.
(13)  If the Appeal Tribunal is of the opinion that an application under this section is frivolous or vexatious, the Appeal Tribunal must dismiss the application and order the applicant to pay an amount determined by the Appeal Tribunal as being the costs of the proceedings in relation to the application and the costs of any person referred to in subsection (3) (a) (ii) .
(14)  An order under subsection (12) or (13) may be registered in a court having jurisdiction for the recovery of debts up to the amount ordered to be paid by or under the order.
(15)  Proceedings for the enforcement of an order under subsection (13) may be taken as if the order were a judgment of the court in which the order is registered.
(16)  Proceedings under this section may be commenced at any time within 24 months after the date of the alleged contravention of, or failure to comply with, a provision of this Part.



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