Part 18Enforcement

Part 18—Enforcement Division 1—Civil enforcement 212—Interpretation (c) the South Australian Heritage Council; or (d) a person or body brought within the ambit of this definition by the regulations. (2) In this Division, a reference to a breach of this Act is a reference to— (a) a contravention, or threatened contravention, of this Act, other than, in relation to the Crown, or an agency, instrumentality, officer or employee of the Crown, the Building Rules; or (b) a contravention, or threatened contravention, of an agreement under Part 14. 213—Enforcement notices (1) If a designated authority has reason to believe on reasonable grounds that a person has breached this Act or the repealed Act, the designated authority may do such of the following as the designated authority considers necessary or appropriate in the circumstances: (a) direct a person to refrain, either for a specified period or until further notice, from the act, or course of action, that constitutes the breach; (b) direct a person to make good any breach in a manner, and within a period, specified by the relevant authority; (c) take such urgent action as is required because of any situation resulting from the breach. (2) A direction under subsection (1) must be given by notice in writing unless the designated authority considers that the direction is urgently required, in which case it may be given orally by an authorised officer. (3) If a direction is given orally under subsection (2), the authorised officer who gave the direction must confirm the direction by notice in writing by 5 pm on the next business day. (4) A written notice under subsection (2) or (3) must set out any appeal rights that the person may have under this Act. (5) If a person fails to comply with a direction under subsection (1)(b) within the time specified in the notice, the designated authority may cause the necessary action to be taken. (6) The reasonable costs and expenses incurred by a designated authority (or any person acting on behalf of the designated authority) under this section may be recovered by the designated authority, as a debt, due from the person whose failure gave rise to the action. (7) If an amount is recoverable from a person by a designated authority under this section— (a) the designated authority may, by notice in writing to the person, fix a period, being not less than 28 days from the date of the notice, within which the amount must be paid by the person, and, if the amount is not paid by the person within that period, the person is liable to pay interest charged at the prescribed rate per annum on the amount unpaid; and (b) the amount together with any interest charged so payable is until paid a charge in favour of the designated authority on any land owned by the person. (8) An appeal against a notice under this section must be commenced within 14 days after the direction is given to the appellant unless the Court allows a longer time for the commencement of the appeal. (9) Subject to any order of the Court to the contrary, the operation of a direction is not suspended pending the determination of an appeal. (10) In an appeal against a notice issued by a designated authority under this section, the Court may make such orders as to costs as it thinks fit. (11) A person who contravenes or fails to comply with a direction under this section is guilty of an offence. (12) A direction cannot be given under this section if it appears that the breach occurred more than 12 months previously. 214—Applications to Court (1) Any person may apply to the Court for an order to remedy or restrain a breach of this Act or the repealed Act (whether or not any right of that person has been or may be infringed by or as a consequence of that breach). (2) Proceedings under this section may be brought in a representative capacity (but, if so, the consent of all persons on whose behalf the proceedings are brought must be obtained). (3) If proceedings under this section are brought by a person other than a designated authority, the applicant must serve a copy of the application on the designated authority within 3 days after filing the application with the Court. (4) An application may be made without notice to any person and, if the Court is satisfied on the application that the respondent has a case to answer, it may grant permission to the applicant to serve a summons requiring the respondent to appear before the Court to show cause why an order should not be made under this section. (5) An application under this section must, in the first instance, be referred to a conference under section 16 of the Environment, Resources and Development Court Act 1993. (6) If— (a) after hearing— (i) the applicant and the respondent; and (ii) any other person who has, in the opinion of the Court, a proper interest in the subject‑matter of the proceedings and desires to be heard in the proceedings, the Court is satisfied, on the balance of probabilities, that the respondent to the application has breached this Act or the repealed Act; 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 Court may, by order, exercise any of the following powers: (c) require the respondent to refrain, either temporarily or permanently, from the act, or course of action, that constitutes the breach; (d) require the respondent to make good the breach in a manner, and within a period, specified by the Court, or to take such other action as may appear appropriate to the Court; (e) cancel or vary any development authorisation; (f) require the respondent to pay to any person who has suffered loss or damage as a result of the breach, or incurred costs or expenses as a result of the breach, compensation for the loss or damage or an amount for or towards those costs or expenses; (g) if the Court considers it appropriate to do so, require the respondent to pay an amount, determined by the Court, in the nature of exemplary damages— (i) if the applicant is a council and the Crown has not become a party to the proceedings—to the council; (ii) in any other case—into the General Revenue of the State. (7) In assessing damages under subsection (6)(g), the Court must have regard to— (a) any detriment to the public interest resulting from the breach; and (b) any financial or other benefit that the respondent sought to gain by committing the breach; and (c) any other matter it considers relevant. (8) The power conferred under subsection (6)(g) can only be exercised by a Judge of the Court. (9) A designated authority, and any person with a legal or equitable interest in land to which an application under this section relates, is entitled to appear, before a final order is made, and be heard in proceedings based on the application. (10) If, on an application under this section or before the determination of the proceedings commenced by the application, the Court 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 an interim order under this section, the Court may make such an order. (11) An interim order— (a) may be made on an application without notice to any person; and (b) may be made whether or not the proceedings have been referred to a conference under subsection (5); and (c) will be made subject to such conditions as the Court thinks fit; and (d) will not operate after the proceedings in which it is made are finally determined. (12) If the Court makes an order under subsection (6)(d) and the respondent fails to comply with the order within the period specified by the Court, a designated authority may 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. (13) If an amount is recoverable from a person by a designated authority under subsection (12)— (a) the designated authority may, by notice in writing to the person, fix a period, being not less than 28 days from the date of the notice, within which the amount must be paid by the person, and, if the amount is not paid by the person within that period, the person is liable to pay interest charged at the prescribed rate per annum on the amount unpaid; and (b) the amount together with any interest charged so payable is until paid a charge in favour of the designated authority on any land owned by the person. (14) The Court may, if it thinks fit, adjourn proceedings under this section in order to permit the respondent to make an application for a development authorisation that should have been but was not made, or to remedy any other default. (15) The Court may order an applicant in proceedings under this section— (a) to provide security for the payment of costs that may be awarded against the applicant if the application is subsequently dismissed; (b) to give an undertaking as to the payment of any amount that may be awarded against the applicant under subsection (16). (16) If on an application under this section the Court is satisfied— (a) that the respondent has not breached this Act or the repealed Act; and (b) that the respondent has suffered loss or damage as a result of the actions of the applicant; and (c) that in the circumstances it is appropriate to make an order under this provision, the Court may, on the application of the respondent (and in addition to any order as to costs), require the applicant to pay to the respondent an amount, determined by the Court, to compensate the respondent for the loss or damage which the respondent has suffered. (17) The Court may, if it considers it appropriate to do so, either on its own initiative or on the application of a party, vary or revoke an order previously made under this section. (18) The Court may make such orders in relation to costs of proceedings under this section as it thinks fit. (19) Proceedings under this section may be commenced at any time within 3 years after the date of the alleged breach or, with the authorisation of the Attorney‑General, at any later time. (20) An apparently genuine document purporting to be under the hand of the Attorney‑General and to authorise the commencement of proceedings under this section will be accepted in any legal proceedings, in the absence of proof to the contrary, as proof of the authorisation. Division 2—General offences and provisions relating to offences Subdivision 1—General offences 215—General offences (1) A person must not undertake development contrary to this Act. (2) A person must not undertake development contrary to a development authorisation under this Act. (3) A person who has the benefit of a development must ensure that the development is used, maintained and operated in accordance with— (a) any development authorisation under this Act; and (b) any plans, drawings, specifications or other documents submitted to a relevant authority for the purposes of this Act that are relevant to any such approval. (4) A person must not contravene, or fail to comply with, a condition imposed under this Act in relation to a development authorisation. 216—Offences relating specifically to building work (1) A person must not perform building work, or cause it to be performed, except in accordance with technical details, particulars, plans, drawings and specifications approved in accordance with this Act. (2) A person must, in performing any building work, comply with the Building Rules (unless modified under this Act), and any other requirements imposed by or under this Act in respect of that work. (3) If— (a) any item or materials incorporated into any building through the performance of any building work do not comply with the Building Rules (as modified under this Act and subject to any variation that may be lawfully allowed); and (b) the failure to comply is attributable (wholly or in part) to an act or omission of a person who designed, manufactured, supplied or installed the item or materials, being an act or omission occurring where it was reasonably foreseeable that the item or materials would be required to comply with the Building Rules and where it was reasonable, in the circumstances, to rely on the advice, skills or expertise of that person, then that person will be guilty of an offence. (4) The fact that a person may have (or has) committed an offence against subsection (3) does not affect the requirements imposed on a person by subsections (1) and (2). (5) In so far as any charge for an offence against a preceding subsection relates to a failure to comply with the Building Rules (including the Building Rules as modified under this Act), it is a defence to prove that the failure to comply was only of a minor nature and had no adverse effect on the structural soundness or safety of the building in respect of which the relevant building work was performed. item includes any component, fitting, connection, mounting or accessory. 217—False or misleading information A person must not, in furnishing information under this Act, make a statement that is false or misleading in a material particular (whether by reason of the inclusion or omission of any particular). Subdivision 2—General provisions relating to offences 218—Criminal jurisdiction of Court The offences constituted by this Act lie within the criminal jurisdiction of the Court (and, for that purpose, all offences under this Act are classified as summary offences). 219—Proceedings for offences (1) Proceedings for an offence against this Act may be commenced by (and only commenced by)— (b) the Director of Public Prosecutions; or (c) the Chief Executive; or (d) the Commission; or (e) the Commissioner for Consumer Affairs; or (f) an authorised officer; or (g) a council; or (h) the South Australian Heritage Council; or (i) a person acting with the authorisation in writing of the Attorney‑General. (2) A prosecution for an offence against this Act may be commenced at any time within 3 years after the date of the alleged commission of the offence or, with the authorisation of the Attorney‑General, at any later time within 10 years after the date of the alleged commission of the offence. (3) An apparently genuine document purporting to be signed by the Attorney‑General and to authorise the commencement of proceedings for an offence against this Act will be accepted in any legal proceedings, in the absence of proof to the contrary, as proof of the authorisation. 220—Offences by bodies corporate—responsibility of officers (1) If a body corporate is guilty of a prescribed offence, each director and the chief executive officer of the body corporate are guilty of an offence and liable to the same penalty as is prescribed for the principal offence when committed by a natural person unless the director or the chief executive officer (as the case may be) proves that he or she could not by the exercise of due diligence have prevented the commission of the offence. (2) If a body corporate is guilty of any other offence against this Act (other than an offence against the regulations), each director and the chief executive officer of the body corporate are guilty of an offence and liable to the same penalty as is prescribed for the principal offence when committed by a natural person if the prosecution proves that— (a) the director or chief executive officer (as the case may be) knew, or ought reasonably to have known, that there was a significant risk that such an offence would be committed; and (b) the director or chief executive officer (as the case may be) was in a position to influence the conduct of the body corporate in relation to the commission of such an offence; and (c) the director or chief executive officer (as the case may be) failed to exercise due diligence to prevent the commission of the offence. (3) Subsection (2) does not apply if the principal offence is an offence against a section prescribed by the regulations for the purposes of this subsection. (4) The regulations may make provision in relation to the criminal liability of a director or the chief executive of a body corporate that is guilty of an offence against the regulations. 221—Penalties for bodies corporate The maximum penalty that may be imposed for an offence against this Act that is committed by a body corporate is 5 times the maximum penalty that the court could, but for this section, impose as a penalty for an offence. 222—Order to rectify breach (1) If, in proceedings for an offence against this Act, the court finds that the defendant has contravened, or failed to comply with, this Act, the court may, in addition to any penalty that it may impose, do 1 or more of the following: (a) order the person to take specified action to make good the contravention or default in a manner, and within a period, specified by the court (including an order that the person make application for a development authorisation that should have been, but has not been made, under this Act); (b) order the person to pay to a relevant authority costs or expenses incurred by the authority in taking action on account of any situation that resulted from that contravention or failure; (c) cancel any development authorisation; (d) order the person to pay to any person who has suffered loss or damage as a result of the contravention or failure, or incurred costs or expenses as a result of the contravention or failure, compensation for the loss or damage or an amount for or towards those costs or expenses. (2) A person must not, without reasonable excuse, fail to comply with an order under this section. 223—Adverse publicity orders (1) If a person is found guilty of an offence against this Act, the court may make an order (an adverse publicity order) in relation to the person (the offender) requiring the offender— (a) to take either or both of the following actions within the period specified in the order: (i) to publicise, in the way specified by the order, the offence, its consequences, the penalty imposed and any other related matter; (ii) to notify a specified person or specified class of person, in the way specified in the order, of the offence, its consequences, the penalty imposed and any other related matter; and (b) to give to the Commission or a council (as specified by the court), within 7 days after the end of the period specified in the order, evidence that the action or actions were taken by the offender in accordance with the order. (2) The court may make an adverse publicity order on its own initiative or on the application of the person prosecuting the offence. (3) The court must, in determining whether to make an adverse publicity order, take into account any material before the court relating to the effect that the taking of action or actions that the court proposes to specify in the order is likely to have on a person other than the offender. (4) If the offender fails to give evidence to the Commission or a council in accordance with subsection (1)(b), the Commission or council, or a person authorised in writing by the Commission or council, may take the action or actions specified in the order. (5) However, if— (a) the offender gives evidence to the Commission or council in accordance with subsection (1)(b); and (b) despite the evidence, the Commission or council is not satisfied that the offender has taken the action or actions specified in the order in accordance with the order, the Commission or council may apply to the court for an order authorising the Commission or council, or a person authorised in writing by the Commission or council, to take the action or actions. (6) If the Commission or a council, or a person authorised in writing by the Commission or a council, takes an action or actions in accordance with subsection (4) or an order under subsection (5), the Commission or council is entitled to recover from the offender an amount in relation to the reasonable expenses of taking the action or actions, as a debt, due to the Commission or council. 224—Proceedings commenced by councils If— (a) proceedings for an offence against this Act brought within the ambit of this section by the regulations are commenced by a council; and (b) a fine is imposed by a court for the offence; and (c) the fine is paid to a clerk of the court, the clerk must pay the amount of the fine to the council. Division 3—Civil penalties 225—Civil penalties (1) Subject to this section, if a designated entity is satisfied that a person has committed an offence by contravening a provision of this Act, the designated entity may, as an alternative to criminal proceedings, recover, by negotiation or by application to the Court, an amount as a civil penalty in respect of the contravention. (2) A designated entity may not recover an amount under this section in respect of a contravention if the relevant offence requires proof of intention or some other state of mind, and must, in respect of any other contravention, determine whether to initiate proceedings for an offence or take action under this section, having regard to the seriousness of the contravention, the previous record of the offender and any other relevant factors. (3) A designated entity may not make an application to the Court under this section to recover an amount from a person as a civil penalty in respect of a contravention— (a) unless the designated entity has served on the person a notice in the prescribed form advising the person that the person may, by written notice to the designated entity, elect to be prosecuted for the contravention and the person has been allowed not less than 21 days after service of the designated entity's notice to make such an election; or (b) if the person serves written notice on the designated entity, before the making of such an application, that the person elects to be prosecuted for the contravention. (4) The maximum amount that a designated entity may recover by negotiation as a civil penalty in respect of a contravention is— (a) the amount specified by this Act as the criminal penalty in relation to that contravention; or (b) $120 000, whichever is the lesser. (5) If, on an application by a designated entity, the Court is satisfied on the balance of probabilities that a person has contravened a provision of this Act, the Court may order the person to pay to the designated entity an amount as a civil penalty (but not exceeding the amount specified by this Act as the criminal penalty in relation to that contravention). (6) In determining the amount to be paid by a person as a civil penalty, the Court must have regard to— (a) the nature and extent of the contravention; and (b) any detriment to the public interest resulting from the contravention; and (c) any financial saving or other benefit that the person stood to gain by committing the contravention; and (d) whether the person has previously been found, in proceedings under this Act, to have engaged in any similar conduct; and (e) any other matter it considers relevant. (7) The jurisdiction conferred by this section is to be part of the civil jurisdiction of the Court. (8) If conduct of a person constitutes a contravention of 2 or more provisions of this Act, an amount may be recovered from the person under this section in relation to the contravention of any 1 or more of those provisions (provided that the person is not liable to pay more than 1 amount as a civil penalty in respect of the same conduct). (9) Proceedings for an order under this section that a person pay an amount as a civil penalty in relation to a contravention of this Act, or for enforcement of such an order, are stayed if criminal proceedings are started, or have already been started, against the person for an offence constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention. (10) Furthermore— (a) proceedings referred to in subsection (9) may only be resumed if the criminal proceedings do not result in a formal finding of guilt being made against the person; and (b) if proceedings for an order under this section that a person pay an amount as a civil penalty in relation to a contravention of this Act are commenced by a designated entity, criminal proceedings against the person for an offence constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention cannot be commenced without the authorisation of the Attorney‑General. (11) Evidence of information given or evidence of the production of documents by a person is not admissible in criminal proceedings against the person if— (a) the person gave the evidence or produced the documents in the course of negotiations or proceedings under this section for the recovery of an amount as a civil penalty in relation to a contravention of this Act; and (b) the conduct alleged to constitute the offence is substantially the same as the conduct that was alleged to constitute the contravention. (12) However, subsection (11) does not apply to criminal proceedings in respect of the making of a false or misleading statement. (13) Proceedings for an order under this section may be commenced at any time within 3 years after the date of the alleged contravention or, with the authorisation of the Attorney‑General, at any later time within 10 years after the date of the alleged contravention. (14) An apparently genuine document purporting to be signed by the Attorney‑General and to authorise the commencement of proceedings under this section will be accepted in any legal proceedings, in the absence of proof to the contrary, as proof of the authorisation. (15) The Court may, in any proceedings under this section, make such orders in relation to the costs of the proceedings as it thinks just and reasonable. (17) In this section— (c) the Commissioner for Consumer Affairs acting after consultation with the Commission. Division 4—Other matters 226—Imputation of conduct or state of mind of officer, employee etc (1) For the purposes of proceedings for an offence against this Act or proceedings for the payment of an amount as a civil penalty in respect of an alleged contravention of this Act— (a) the conduct and state of mind of an officer, employee or agent of a body corporate acting within the scope of his or her actual, usual or ostensible authority will be imputed to the body corporate; (b) the conduct and state of mind of an employee or agent of a natural person acting within the scope of his or her actual, usual or ostensible authority will be imputed to that person. (a) a natural person is convicted of an offence against this Act; and (b) the person would not have been convicted of the offence but for the operation of subsection (1), the person is not liable to be punished by imprisonment for the offence. (3) For the purposes of this section, a reference to conduct or acting includes a reference to failure to act. 227—Statement of officer evidence against body corporate In proceedings for an offence against this Act by a body corporate or proceedings against a body corporate for the payment of an amount as a civil penalty in respect of an alleged contravention of this Act, a statement made by an officer of the body corporate is admissible as evidence against the body corporate. 228—Make good orders (1) If in any proceedings under this Act the court finds that a person has contravened this Act by undertaking a tree‑damaging activity, the court may, in addition to any penalty that it may impose, by order, direct a specified person to do 1 or more of the following: (a) to establish a tree or trees of a kind specified by the court in a place or places specified by the court; (b) to remove any buildings, works or vegetation that have been erected, undertaken or planted at or near the place where the regulated tree was situated since the breach occurred; (c) to nurture, protect and maintain any tree or trees until they are fully established or for such period as may be specified by the court, or to make a payment or payments towards the maintenance of any tree or trees. (2) The court may make any ancillary order as the court thinks fit. (3) The court must, before making an order under subsection (1) directed at a person who is not an owner or occupier of the relevant land, ensure that reasonable steps have been taken to give notice of the relevant proceedings to an owner or occupier of the land. (4) If a person to whom an order under subsection (1) applies is not an owner or occupier of the relevant land at the time of the making of the order, the court may authorise the person (or a person authorised by him or her)— (a) to enter the land with such materials and equipment as are reasonably necessary to comply with the order; and (b) to enter and cross any land specified in the order with the materials and equipment referred to in paragraph (a) for the purpose of gaining access to the relevant land. (5) Subject to subsection (6), an order under this section will cease to apply with respect to land if or when the land is sold to a genuine arms‑length purchaser for value. (6) Subsection (5) does not apply if the order is noted against the relevant instrument of title or, in the case of land not under the provisions of the Real Property Act 1886, against the land under a scheme prescribed by the regulations for the purposes of this subsection. (7) A court may, on application, vary or revoke an order under this section. (8) A person who fails to comply with an order under subsection (1) or (2) is, in addition to any liability for contempt, guilty of an offence. (9) An owner or occupier of land, or any other person, who hinders or obstructs a person in carrying out the requirements of an order under subsection (1) or (2) or entering or crossing land under subsection (4) is guilty of an offence. 229—Recovery of economic benefit (1) If in any proceedings under this Act, a court finds that a person has contravened this Act, the court may, in addition to any penalty that it may impose, order the person to pay to the Commission or a council (as the court thinks fit) an amount not exceeding the court's estimation of the amount of economic benefit acquired by the person, or accrued or accruing to the person, as a result of the contravention. (2) For the purposes of subsection (1), an economic benefit obtained by delaying or avoiding costs will be taken to be an economic benefit acquired as a result of a contravention if the contravention can be attributed (in whole or in part) to that delay or avoidance. (3) A court may, by an order under this section, fix a period for compliance and impose any other requirements the court considers necessary or expedient for enforcement of the order. (4) An amount paid to the Commission in accordance with an order under subsection (1) must be paid into the Planning and Development Fund. (5) An amount paid to a council in accordance with an order under subsection (1) must be applied by the council for the purpose of acquiring or developing land as open space (and may be held by the council in a fund established for the purposes of section 198). 230—Enforceable voluntary undertakings (1) A designated entity may accept (by written notice) a written undertaking given by a person in connection with a matter relating to a contravention or alleged contravention by the person of this Act. (2) The giving of an undertaking does not constitute an admission of guilt by the person giving the undertaking in respect of the contravention or alleged contravention to which the undertaking relates. (3) A person must not contravene an undertaking made by the person that is in effect. (4) If a designated entity considers that a person has contravened an undertaking accepted by the designated entity, the designated entity may apply to the Court for enforcement of the undertaking. (5) If the Court is satisfied that the person has contravened the undertaking, the Court, in addition to the imposition of any penalty, may make any of the following orders: (a) an order that the person must comply with the undertaking or take specified action to comply with the undertaking; (b) an order discharging the undertaking; (c) an order directing the person to pay to a designated entity— (i) the costs of the proceedings; and (ii) the reasonable costs of the designated entity in monitoring compliance with the undertaking in the future; (d) any other order that the Court considers appropriate in the circumstances. (6) A person must not fail to comply with an order under subsection (5). (7) A person who has made an undertaking may, at any time, with the written agreement of the relevant designated entity— (a) vary the undertaking; or (b) withdraw the undertaking. (8) However, the provisions of the undertaking cannot be varied to provide for a different alleged contravention of this Act. (9) Subject to this section, no proceedings for a contravention or alleged contravention of this Act may be brought against a person if an undertaking is in effect in relation to that contravention. (10) No proceedings may be brought for a contravention or alleged contravention of this Act against a person who has made an undertaking in respect of that contravention and has completely discharged the undertaking. (11) A designated entity may accept an undertaking in respect of a contravention or alleged contravention before proceedings in respect of that contravention have been finalised. (12) If a designated entity accepts an undertaking before the proceedings are finalised, the designated entity must take all reasonable steps to have the proceedings discontinued as soon as possible. (14) In this section— (c) the Commissioner for Consumer Affairs acting after consultation with the Commission.