Civil penalties or a written undertaking can apply when a person has committed an offence that contravenes the Act. Details of who can initiate these proceedings and a list of current penalties and undertakings are contained on this page.
Under section 225 of the Planning, Development and Infrastructure Act 2016 (the Act), a civil penalty can be applied by a designated entity as an alternative to criminal proceedings, when a person has committed an offence that contravenes the Act.
Under section 230 of the Act, a designated entity can also agree to accept a written undertaking by the person who has or is alleged to have committed an offence that contravenes the Act.
A designated entity can be:
- the State Planning Commission (the Commission)
- a council acting under an authorisation granted by the Commission
- the Commissioner for Consumer Affairs, following consultation with the Commission.
The Commission has authorised councils to utilise the enforcement tools available under sections 225 and 230 of the Act.
Use of these enforcement tools by councils is subject to a number of conditions including:
- Councils must provide details (date of commencement of proceedings, alleged offender, details of the breach and the outcome once known) to the Commission regarding the commencement of proceedings under section 225 of the Act as soon as practicable after the proceedings are commenced.
- Councils must provide to the Commission a copy of any enforceable voluntary undertaking that is given, varied or withdrawn under section 230 of the Act.
- Where a council is proposing to take enforcement action under the relevant sections and the council was not the relevant authority that granted development authorisation, it must notify the relevant authority that did grant development authorisation indicating that it proposes to take enforcement action.
- Each council must, to the best of their ability, make use of the enforcement tools available under the relevant sections in a consistent manner that is proportionate to the alleged offence or breach of the Act.
- In granting authorisation to councils, each council acknowledges and agrees that the Commission will not be liable for any costs associated with entering into (or subsequently enforcing) proceedings initiated or undertakings given under the relevant sections.
Civil penalties - Section 225
A civil penalty is a pecuniary penalty generally imposed by the court in civil proceedings (as distinct from a fine in criminal proceedings).
A civil penalty may be sought through negotiation between the parties or by application to the Environment, Resources and Development Court (the Court). A person may elect to be prosecuted instead of having a civil penalty imposed and there is no criminal conviction of guilt where a civil penalty is imposed.
The maximum amount that can be negotiated as a civil penalty is the amount specified in the Act for the offence or $120,000.00; whichever is the lesser. The maximum amount that the Court may impose as a civil penalty is the criminal penalty specified in the Act for the offence.
The list below provides details of current civil penalty proceedings:
| Designated entity | Date | Alleged offence |
|---|---|---|
| City of Mitcham | 25 November 2021 | Unlawful removal of a regulated tree |
| City of Charles Sturt | 8 June 2022 | Undertaking tree damaging activity |
| City of Unley | 19 May 2023 | Unlawful demolition of dwelling |
| City of Mitcham | 25 October 2023 | Unlawful tree damaging activity |
| City of Unley | 25 January 2024 | Unlawful demolition of dwelling |
| City of Norwood Payneham and St Peters | 17 September 2024 | Unlawful removal of a regulated tree |
| City of Norwood Payneham and St Peters | 17 September 2024 | Undertaking tree damaging activity |
| City of Mitcham | 27 September | Unlawful Tree Damaging Activity |
Enforceable voluntary undertakings - Section 230
An undertaking is akin to a promise to do (or not to do) a certain action.
The giving of an undertaking does not constitute an admission of guilt by the person giving the undertaking, and an undertaking may be varied or withdrawn at any time through written agreement.
It is an offence to breach an undertaking once it has been entered into and a designated entity may apply to the Court for enforcement of the undertaking.
When Court proceedings have commenced but are yet to be finalised, a designated entity may accept an undertaking regarding the contravention of the Act. The designated entity must then discontinue the Court proceedings.
There are no current undertakings that have been given.
