There’s no worse feeling than opening the mail and seeing a show cause notice or an enforcement notice from your local Council requiring you to fix a retaining wall that they have deemed to be ‘dangerous’ or cease operating your business due to a lack of development approval. If this has happened to you, read on to find out your legal rights and obligations.
Show Cause Notice
What is a show cause notice?
A show cause notice is usually the first step in Council’s enforcement process for alleged non-compliant building works or development offences. This notice is an invitation for you to respond to the allegations and where appropriate, remedy any non-compliant building structures or development offences.
When are show cause notices issued?
Show cause notices are generally issued for any of the following:
- unsafe buildings or structures (such as a collapsing retaining wall or dilapidated house);
- unapproved buildings or structures (such as a house extension without the required building approvals or a house that never received a final inspection certificate);
- using a property without the required development approvals for the particular use (such a cross-fit gyms in industrial warehouses throughout Brisbane City Council); and
- breach of development approval conditions.
What to do if you receive a show cause notice?
The first step you should take after receiving a show cause notice is to diarise the date your response must be submitted by. This response period must be a minimum of 20 business days after the show cause notice is issued.
If the issues are complex and more time is required to respond, then you should immediately contact Council to request an extension of the response period to allow you sufficient time to fully investigate, seek advice and then provide a response.
Once you have fully considered the respond period, the next step is to either:
- take steps to remedy the non-compliance and provide a response to Council advising them of the steps being taken; or
- engage an experienced town planning or property lawyer to provide guidance on your rights and whether you can challenge the show cause notice.
Do I need to respond to a show cause notice?
No, you are not legally obliged to respond to a show cause notice. If no response is received within the timeframe provided, Council often proceed to the next step and issue you with an enforcement notice.
Although you are not required to respond to a show cause notice, we strongly recommend that you do. Properly managing the show cause notice process is vital in stopping Council from issuing an enforcement notice.
Resolving a show cause notice
Part B of the show cause notice will outline the steps that must be taken to bring the land use or building works into compliance. In the case of a retaining wall, the steps to be taken will generally be to have the retaining wall replaced in any sections where it is not structurally sound.
It is important that you communicate with Council and let them know the steps you are taking to remedy the issues raised in their notice. You should also let them know when any works have been completed so that they can re-inspect the property to confirm he show cause notice has been complied with.
Challenging a show cause notice
Rather than carrying out the works shown in Part B of the show cause notice, you may also choose to challenge the show cause notice and argue that the works are not required or that other works are suitable.
It is often appropriate to engage a town planner, surveyor, architect or engineer to assist in this process alongside your town planning or property lawyer.
One of the common challenges we see is whether a retaining wall is structurally sound or in need of repair. An engineer is generally engaged to provide a professional opinion on this.
What if there is a retaining wall dispute?
One of the common issues we see is that a show cause or enforcement notice is issued for a damaged retaining wall, however the parties dispute who is responsible for repairing the retaining wall. It is vital that you seek legal advice as early as possible if this is the case to ensure the notice has been issued to the correct land owner and that the notice can be lawfully complied with.
Enforcement Notices
What is an enforcement notice?
An enforcement notice is a legal notice issued by Council requiring you to remedy non-compliant building works or a development offence. The enforcement notice will outline the works to be carried out or actions to be taken to comply with the notice and also the timeframe for compliance.
Does Council need to issue a show cause notice before an enforcement notice?
Council is not required to issue a show cause notice for dangerous or urgent matters. These circumstances generally include pool fencing, works in progress and buildings or structures that pose a danger.
Unfortunately, our experience is that Council will often skip the show cause notice and proceed straight to issuing an enforcement notice for failing retaining wall that they deem to be dangerous.
Appealing an enforcement notice
The timeframes to appeal an enforcement notice are:
- 5 business days for a dangerous building or structure; or
- 20 business days for any other purpose.
In the case of a collapsing retaining wall, 5 business days is very rarely enough time to properly consider your legal rights and submit an appeal so it is critical that you contact an experienced property lawyer, such as McAndrew Law, as soon as you receive the enforcement notice.
Before submitting an appeal, we encourage communication with Council about the grounds of appeal as Council will sometimes withdraw the enforcement notice without requiring an appeal to be submitted.
What if I don’t appeal the enforcement notice in time
Court’s have held that failing to appeal an enforcement notice within the required timeframe prevents you from relying on an invalid notice as a defence to any enforcement proceedings. It is critical that you lodge an appeal within the required timeframes if you intend to dispute the validity of the enforcement notice.
What if I don’t comply with an enforcement notice?
Failing to comply with an enforcement notice has serious consequences and can result in:
- fines being issued (on multiple occasions if the non-compliance is ongoing);
- legal proceedings being commenced; and
- Council carrying out the work and then recovering the cost from you.
What if I can’t comply in time?
If you are working to comply with the enforcement notice but need more time to complete the remedial action, then Council will often grant an extension of time. You should speak with Council as soon as possible in the process to demonstrate the action that is being taken and requesting an extension.
Enforcement notices for retaining walls
Council’s are generally reluctant to issue enforcement notices for retaining walls as Court’s have found these notices to be invalid in certain circumstances. The main grounds for disputing an enforcement notice for a retaining wall is where:
- the enforcement notice is issued to the wrong neighbour; or
- the enforcement notice cannot be complied with without trespassing into the neighbouring land.
If you believe either of the above may be applicable, then you should get in touch with McAndrew Law as soon as possible so that specific legal advice can be provided. We look forward to hearing from you – 07 3266 8555 or mail@mcandrewlaw.com.au.
