Essential Guide: Development Control Orders Under the EPA Act

Development control orders (orders) are powerful tools for a council to use to deal with compliance issues. Orders are given in accordance with s.9.34 and Schedule 5 of the Environmental Planning and Assessment Act 1979 (the Act), and failure to comply with an order can have significant financial and legal consequences for the recipient.

This Essential Guide will assist local councils to determine when it is appropriate to give an order, how to give a valid order, and what to do in an emergency.

When can a council give a control order?

A council has the power to give any order identified in the Table in Schedule 5 of the Act in the circumstances described in that Table. Column 1 of the Table identifies the types of orders a council can give; Column 2 outlines the circumstances in which the various kinds of order can be given; and Column 3 identifies who the order can be given to.

When should a council give a control order?

A council must determine whether in the individual circumstances of each case it is appropriate to give an order. Some of the things to be considered are:

• The seriousness and continuing nature of the breach;
• The impacts of the breach on adjoining owners/occupiers, the general public or the environment;
• Any hardship to the recipient, including expense and inconvenience – an order must not cause injustice disproportionate to the ends secured by the order;
• Whether there has been excessive delay by the Council in responding to the breach;
• The time for compliance with an order, balancing the public interest in bringing about compliance and any hardship for the recipient;
• Whether an order will, or is likely to, make the recipient or other persons homeless – if so, the council must consider availability of satisfactory alternative accommodation in the locality;
• Whether the order will affect the heritage significance of the item (if an order is for a heritage item on the State Heritage Register or under order by s.136 of the Heritage Act 1977); and
• Whether more than one order is to be given to the same recipient, and whether they should be given in the same instrument.

It is appropriate for a council to give an order – what next?

The council (or an employee with the appropriate delegation) must first give notice to the person to whom the proposed order is directed of the following:

1. the intention to give the order
2. the terms of the proposed order
3. the proposed time for compliance; and
4. that the recipient may make representations to the council as to as to why the order should not be given or as to the terms of or period for compliance with the order.

If the Council ultimately decides to give the order, the terms of the order will need to closely follow the terms of the proposed order set out in this notice. Some care should therefore be taken when drafting the notice to ensure the terms of the proposed order are clear and able to be readily understood by the person to whom it is given.

The language used and information contained in a notice is very important and will affect the clarity, validity, and enforceability of the proposed order – language used in the notice should be consistent. It is also important that the notice correctly identifies the recipient (making sure that the recipient is a legal person and not, for example, simply a business name), their relationship to the land, why they are being given the notice), and the premises (lot/DP reference and street address).

The following checklist can assist to ensure a notice (and therefore an order) is drafted correctly:

1. Explicitly state the intention of the council to give an order to the recipient. Detailed characterisation of how a breach has arisen will often be of assistance for the recipient to understand why a notice is being given:
   • Identify the relevant legislation and, if relevant, environmental planning instrument).
   • What are the relevant statutory provisions giving rise to the alleged breach?
   • How do those provisions apply in the particular circumstances?
   • Clearly identify the actual breach being alleged.
   • If the breach of a consent condition is alleged, clearly identify the actual condition and describe the way in which it is alleged that the condition is not being complied with.
2. Be specific when drafting the terms of the proposed order:
   • State exactly what it is that the recipient is to do, or refrain from doing, to remedy the breach.
   • Ensure that the recipient will be able to understand what is expected of them to avoid further compliance action.
3. The proposed time for compliance must be reasonable and clear. Immediate compliance may be required where there is a serious risk to health or safety, or in an emergency. However, if immediate compliance is unnecessary, give real consideration to what will need to be done to comply with the order and how long that is likely to take.
4. Inform the recipient of their right to make representations, including:
   • what the recipient may make a representation to the council about – i.e. why the order should not be given, the terms of the proposed order or the period for compliance with it;
   • to whom representations might be made – this may be the Council itself, a Council committee or a nominated person at the Council;
   • the date by which any representation is to be made (this needs to be a date that is reasonable in the circumstances); and
   • that a legal practitioner or agent may make the representations on their behalf.

For certain kinds of orders, notice must also be given to other people:

1. If a heritage item will be affected by the proposed order, the council must give notice of the proposed order to the Heritage Council and consider any submissions it makes before deciding whether to give the order.
2. If a council proposes to give an order in relation to development for which another person is the consent authority, the council must give the other person notice of its intention to give the order.
3. If a council proposes to give an order in relation to building work or subdivision work for which the council is not the certifier, the council must give the principal certifier notice of its intention to give the order.

How is a notice served on the recipient?

A notice, and any subsequent order, must be served using one of the methods prescribed in s.10.11 of the Act. Service must be effected correctly for the notice and any subsequent order to be enforceable.

Giving an order

When a council gives a notice expressing its intention to give an order, sometimes the recipient will remedy the breach of their own accord. If the breach has been remedied, it would be inappropriate and possibly unlawful for the Council to proceed to give the order.

If the recipient of the notice makes representations to the council or nominated person during the time period detailed in the notice, the council must consider those representations before determining whether to give the proposed order.  A failure to consider any such representations may invalidate a subsequent order, so it is important to make sure a record is made of how the representations have been taken into account. It is also good practice to set out the consideration of the representations in the body of any subsequent order. Having considered any representations, the council may proceed to give the recipient an order if it is still appropriate to do so (either in the terms proposed in the notice, or amended), or not give an order.

If given, an order must state that the recipient has the right to appeal against the order to the Land and Environment Court of NSW (the LEC) within 28 days of the date of service of the order.

Reasons for giving the order must also be provided to the recipient at the same time (either within the order itself or in an accompanying document), except in an emergency. A council should ensure that the reasons are not a mere restatement of the circumstances specified in the Table in Schedule 5 in which the order may be given. The reasons should be sufficient to enable the recipient to be able to understand why the order has been given and to decide whether to accept the order or to appeal.

An order takes effect from the time of service, or a later time if it is specified in the order itself. Methods of service are set out in s.10.11 of the Act.

The situation is an emergency – what can be done?

A council may proceed straight to giving an order when it is expressed to be given in an emergency. A number of requirements are dispensed with or are different in an emergency:

• no requirement to give a notice;
• no requirement for a council to hear or consider representations;
• the time for compliance in the order can be “immediate”; and
• reasons may be given the next working day.

There is no definition of an “emergency” under the Act. While a council has some discretion to decide whether an emergency exists, its decision needs to be justifiable.  To be an emergency, there will usually be harm of some kind if the order is not given.

For further information or assistance, please contact Alice Menyhart and the Local Government & Planning team on (02) 6274 0999.