§ 40 — Rectification order

40.—(1) Where it appears to the Authority that a person has, before, on or after the appointed day, carried out any development of any land and there was no entitlement to do so because —(a)

there was no grant of a planning permission or conservation permission for the development; or

(b)

there was no accepting of a lodgment of any plans for the development of the land that may be deemed authorised without express written permission,

the Authority may —

(c)

notify the competent authority with a view to the competent authority exercising relevant powers under Part 4 of the Planning Act 1998 relating to the land; and

(d)

give a rectification order to the person or persons with a material interest in the land when the rectification order is given, directing the person or persons to pay a penalty tax if the competent authority —(i)

grants planning permission or conservation permission under section 14 of the Planning Act 1998 for the development, which then becomes an authorised development; or

(ii)

accepts a lodgment of any plans for the development of the land which is then deemed authorised without express written permission (as the case may be).

(2) Where it appears to the Authority that a person has, before, on or after the appointed day, carried out any development or subdivision of any land, or carried on or stopped carrying on a controlled activity that is the subject of a controlled activity restrictive covenant in a State title relating to any land, and there was no entitlement to do so because —(a)

the carrying out of the development or subdivision, or the carrying on or stoppage in carrying on the controlled activity (as the case may be) would have been lawful only after varying by the Authority of —(i)

a special condition in a directly allotted State title relating to the land;

(ii)

a restrictive covenant in a concessional State title relating to the land;

(iii)

a controlled activity restrictive covenant in a State title relating to the land; or

(iv)

a subdivision control restrictive covenant in a State title relating to the land; and

(b)

that variation was not obtained before the carrying out or carrying on of the development or subdivision of the land or the controlled activity, or the stoppage in carrying on a controlled activity, as the case may be,

the Authority may give a rectification order to the person or persons with a material interest in the land when the rectification order is given, directing the person or persons —

(c)

to restore the developed or subdivided land or to stop or resume any controlled activity to alleviate the effect of the unlawful development, subdivision or activity (as the case may be) at the person’s cost; or

(d)

to pay a penalty tax if —(i)

the Authority considers that restoring the developed or subdivided land or stopping or resuming any controlled activity in paragraph (c) is not reasonably practicable or is undesirable; and

(ii)

the competent authority grants or has granted planning permission or conservation permission for the development or subdivision under section 14 of the Planning Act 1998, or accepts or has accepted a lodgment of any plans for the development or subdivision of the land which is then deemed authorised without express written permission (as the case may be) where that permission or lodgment is required for it to be an authorised development or a lawful subdivision.

(3) Any rectification order under subsection (2)(c) —(a)

may include a requirement —(i)

to demolish or remove any fence or partition enclosing the land or any structure erected on the land resulting from any unlawful development, subdivision or activity mentioned in subsection (2), and to dispose of the fence, partition or structure and any resulting debris from the demolition; or

(ii)

to stop, either wholly or to the extent specified in the rectification order, any controlled activity; and

(b)

takes effect despite the provisions of any other written law or anything contained in the memorandum or articles of association, trust deed or other constitution of the person given the order.

(4) A rectification order must state the period within which —(a)

the person must comply with the rectification order (called in this Act the compliance period), which must be at least 14 days after the order is given; and

(b)

the person may appeal against the rectification order if the person objects to and does not wish to comply with the rectification order.

(5) The compliance period for a rectification order must not be longer than the objection period specified in that rectification order.

(6) A person who —(a)

is given a rectification order under subsection (2)(c); and

(b)

does not appeal against the order within the time delimited by this Act for appeals,

must take, so far as is reasonably practicable and at the person’s cost, such steps as are necessary to comply with the rectification order within the compliance period specified in that order.

(7) A person who, without reasonable excuse, fails to comply with subsection (6) shall be guilty of an offence and shall be liable on conviction —(a)

to a fine not exceeding $200,000 or to imprisonment for a term not exceeding 12 months or to both; and

(b)

in the case of a continuing offence, to a further fine not exceeding $10,000 for every day or part of a day during which the offence continues after conviction.

—(1) Where it appears to the Authority that a person has, before, on or after the appointed day, carried out any development of any land and there was no entitlement to do so because —(a)

there was no grant of a planning permission or conservation permission for the development; or

(b)

there was no accepting of a lodgment of any plans for the development of the land that may be deemed authorised without express written permission,

the Authority may —

(c)

notify the competent authority with a view to the competent authority exercising relevant powers under Part 4 of the Planning Act 1998 relating to the land; and

(d)

give a rectification order to the person or persons with a material interest in the land when the rectification order is given, directing the person or persons to pay a penalty tax if the competent authority —(i)

grants planning permission or conservation permission under section 14 of the Planning Act 1998 for the development, which then becomes an authorised development; or

(ii)

accepts a lodgment of any plans for the development of the land which is then deemed authorised without express written permission (as the case may be).

(2) Where it appears to the Authority that a person has, before, on or after the appointed day, carried out any development or subdivision of any land, or carried on or stopped carrying on a controlled activity that is the subject of a controlled activity restrictive covenant in a State title relating to any land, and there was no entitlement to do so because —(a)

the carrying out of the development or subdivision, or the carrying on or stoppage in carrying on the controlled activity (as the case may be) would have been lawful only after varying by the Authority of —(i)

a special condition in a directly allotted State title relating to the land;

(ii)

a restrictive covenant in a concessional State title relating to the land;

(iii)

a controlled activity restrictive covenant in a State title relating to the land; or

(iv)

a subdivision control restrictive covenant in a State title relating to the land; and

(b)

that variation was not obtained before the carrying out or carrying on of the development or subdivision of the land or the controlled activity, or the stoppage in carrying on a controlled activity, as the case may be,

the Authority may give a rectification order to the person or persons with a material interest in the land when the rectification order is given, directing the person or persons —

(c)

to restore the developed or subdivided land or to stop or resume any controlled activity to alleviate the effect of the unlawful development, subdivision or activity (as the case may be) at the person’s cost; or

(d)

to pay a penalty tax if —(i)

the Authority considers that restoring the developed or subdivided land or stopping or resuming any controlled activity in paragraph (c) is not reasonably practicable or is undesirable; and

(ii)

the competent authority grants or has granted planning permission or conservation permission for the development or subdivision under section 14 of the Planning Act 1998, or accepts or has accepted a lodgment of any plans for the development or subdivision of the land which is then deemed authorised without express written permission (as the case may be) where that permission or lodgment is required for it to be an authorised development or a lawful subdivision.

(3) Any rectification order under subsection (2)(c) —(a)

may include a requirement —(i)

to demolish or remove any fence or partition enclosing the land or any structure erected on the land resulting from any unlawful development, subdivision or activity mentioned in subsection (2), and to dispose of the fence, partition or structure and any resulting debris from the demolition; or

(ii)

to stop, either wholly or to the extent specified in the rectification order, any controlled activity; and

(b)

takes effect despite the provisions of any other written law or anything contained in the memorandum or articles of association, trust deed or other constitution of the person given the order.

(4) A rectification order must state the period within which —(a)

the person must comply with the rectification order (called in this Act the compliance period), which must be at least 14 days after the order is given; and

(b)

the person may appeal against the rectification order if the person objects to and does not wish to comply with the rectification order.

(5) The compliance period for a rectification order must not be longer than the objection period specified in that rectification order.

(6) A person who —(a)

is given a rectification order under subsection (2)(c); and

(b)

does not appeal against the order within the time delimited by this Act for appeals,

must take, so far as is reasonably practicable and at the person’s cost, such steps as are necessary to comply with the rectification order within the compliance period specified in that order.

(7) A person who, without reasonable excuse, fails to comply with subsection (6) shall be guilty of an offence and shall be liable on conviction —(a)

to a fine not exceeding $200,000 or to imprisonment for a term not exceeding 12 months or to both; and

(b)

in the case of a continuing offence, to a further fine not exceeding $10,000 for every day or part of a day during which the offence continues after conviction.