According to the current Development Planning Act (Cap. 552), Article 98 reads:

“98. (1) If it appears to the Executive Council that anything which is prohibited or restricted or subject to a condition by or under any of the provisions of article 57 is being done or carried on or has been done or carried on in contravention of any such prohibition, restriction or condition or without any permission or other requirement, or without compliance with any condition, mentioned in those articles or any orders made thereunder, the Executive Council shall serve a notice on the owner of the land or on the occupier of the land or on the person responsible for the acts mentioned in the notice or any combination thereof, as the Executive Council deems most expedient, requiring such steps as may be specified in the notice, including the discontinuance of anything being done or carried on, to be taken within such time as may also be specified in the notice. The provisions of article 97(3) shall also apply to any notice under this article.

(2) A notice under this article shall also be referred to as an “enforcement notice” and, unless the context otherwise requires and subject to such modifications and adaptations as may be necessary to give full effect to the provisions of those articles, wherever the expression appears in this Act, it shall include a notice given under this article:
Provided that no such notice shall be issued for any development carried out before 1967″.

 The Bill proposes to repeal the current Article 98 entirely and replace it with a new provision titled Breach of notice, which states:

“98. The Executive Council may, if it is satisfied that any order requiring the immediate cessation, prohibition of further work or development, or discontinuation of use has not been complied with, whether in whole or in part, issue a breach notice notified on the owner of the land or on the occupier of the land or on the person responsible for the activity or development in question. Such breach of notice shall specify the notice that was breached, detail the nature and extent of the breach, prescribe measures to remedy the breach within a time period determined by the Executive Council, and clearly indicate any further action that may be pursued if non-compliance persists, including the imposition of a first-time fine if none is currently applicable, or increasing the rate of the daily fine in accordance with the applicable regulations”.

If the Bill were to pass through untouched, the full text of Article 98 would be:

“98. (1) The Executive Council may, if it is satisfied that any order requiring the immediate cessation, prohibition of further work or development, or discontinuation of use has not been complied with, whether in whole or in part, issue a breach notice to the owner of the land, the occupier of the land, or the person responsible for the activity or development in question.

(2) A breach notice issued under sub-article (1) shall —
(a) specify the notice that has been breached;
(b) detail the nature and extent of the breach;
(c) prescribe the measures required to remedy the breach within a time period determined by the Executive Council; and
(d) clearly indicate any further action that may be pursued if non-compliance persists, including —
(i) the imposition of a first-time fine if no such fine is currently applicable; or
(ii) an increase in the rate of the daily fine in accordance with the applicable regulations”.

Having seen the above, it follows that Article 98 of the current Development Planning Act is narrowly framed, applying only to breaches relating to scheduled property and to conservation orders issued under Article 57. It functions as a targeted enforcement tool in the heritage and environmental protection sphere, enabling the Executive Council to act where works on a scheduled site are carried out in breach of statutory prohibitions, restrictions, or conditions. In its present form, Article 98 operates as a specialised adjunct to the conservation regime rather than as a general enforcement power within the broader planning system.

Bill No. 143 proposes to replace this text entirely with a new Article 98, widening both its scope and its function.

Under the proposed wording, the provision would apply wherever an order has been issued for the immediate cessation of works, the prohibition of further development, or the discontinuation of a use, and that order has not been fully or partly obeyed. In such cases, the Executive Council would be empowered to issue a breach notice—serving as a formal escalation step in the enforcement process. The legislation would require this notice to identify the original order that has been breached, describe the nature and extent of the breach, set out the remedial action required with a compliance deadline, and warn of further measures should non-compliance persist. Those further measures include the power to impose a first-time fine where none exists, or to increase the rate of any daily fine under applicable regulations.

The operational impact of this change would be substantial. At present, if an enforcement-related order is ignored, the Authority’s main options are, strictly speaking,  either to move directly to court proceedings or to take physical enforcement action under Article 100. The new provision would introduce an intermediate stage, allowing a breach notice to be served as a distinct follow-up to the original order. This step is likely to improve compliance rates by setting out the breach and its consequences in clear, unambiguous terms, while also creating a stronger paper trail to support any later legal action. In effect, the new Article 98 would formalise an escalation ladder: initial order, breach notice, and only then recourse to more intrusive measures.

Legally, therefore, this reform would produce several notable effects.

The new provision would no longer be confined to scheduled property but would extend across the entire field of planning enforcement. The Bill also codifies the elements a breach notice must contain, making the process more transparent and easier to defend on appeal. The explicit possibility of imposing fines at this stage would act as a deterrent and provide the Authority with a tangible means of applying pressure short of demolition or litigation.

While the introduction of a formal breach notice appears novel in statutory terms, it should be recognised that similar practices already exist in operational enforcement. In many cases, the Planning Authority already issue written warnings or follow-up communications when initial cessation or prohibition orders are ignored—effectively serving as administrative breach notices. The Bill therefore gives legal structure and clarity to a practice that is already used in substance.

However, as the breach notice becomes a statutory instrument with financial consequences, it raises important questions about the interaction with daily fines already regulated under subsidiary legislation. For example:

  • Does the breach notice trigger a new daily fine, or merely allow for an increase in the existing one?
  • If a daily fine is already accruing under the original order, does the breach notice modify or replace it?
  • Could the breach notice be interpreted as giving rise to a separate offence, distinct from the original breach?

To ensure legal certainty and protect procedural fairness, the subsidiary legislation regulating daily fines must be examined and, if necessary, amended to clarify:

  • The relationship between an original enforcement order and a subsequent breach notice,
  • Whether multiple or cumulative fines can arise from the same factual breach,
  • How increases in fine rates are to be calculated and applied lawfully.

Providing this clarification will not only support the enforcement aims of Article 98, but also strengthen the legal defensibility of any penalties imposed and ensure transparency for affected individuals.

Meanwhile, from a policy perspective, the proposed reform to Article 98 may be fairly considered as a commendable shift towards a more graduated, transparent, and proportionate enforcement regime in planning law. By transforming the article from a conservation-specific measure into a general-purpose enforcement mechanism, the Bill introduces a clear escalation structure—from an initial cessation order, to a formal breach notice, and ultimately to litigation or direct enforcement.

Comparative planning literature has long cautioned against binary enforcement models that swing between passive inaction and full legal escalation. McKay et al. (2003) argue that enforcement regimes should equip planning authorities with administrative tools—such as notices and fines—that allow them to respond flexibly to violations while retaining the ability to escalate when needed. The breach notice fits this description exactly, offering clarity to the alleged offender, documenting the breach to support later legal action, and improving compliance through deterrence.

The reform also strengthens procedural fairness, a cornerstone of administrative justice. Bernatt (2016) notes that for administrative sanctions to be legitimate, they must be transparent and clearly communicated. The proposed requirements—that a breach notice specify the breach, outline the compliance steps, and explain the consequences of non-compliance—embody precisely this form of procedural rigor.

From a regulatory strategy perspective, Hawkins (1983) observes that enforcement systems relying solely on prosecution tend to underperform. Compliance is more effectively encouraged through “negotiated deterrence,” in which clear sanctions exist but are applied in a graduated, proportionate manner. The proposed Article 98, by enabling immediate and proportionate financial penalties, adopts this approach.

From the standpoint of citizens’ rights, the mandatory content of a breach notice improves procedural fairness by ensuring that recipients are told exactly what they are accused of breaching, what is required for compliance, and what will happen if they fail to comply. However, the broadened scope means that breach notices could arise in more situations, and the accompanying power to increase fines introduces a new element of financial pressure.

 

  • Bernatt, M. (2016). Administrative sanctions: Between efficiency and procedural fairness. Review of European Administrative Law, 9(1). Retrieved from  
  • Hawkins, K. (1983). Bargain and bluff: Compliance strategy and deterrence in the enforcement of regulation. Law & Policy, 5(1), 35–73.  
  • McKay, S., Berry, J., & McGreal, S. (2003). Planning enforcement: Lessons for practice and procedure. European Planning Studies, 11(3), 333–349.