Essential Guide: Enforcement of Development Control Orders Under the EPA Act

Our essential guide to development control orders addressed when local councils can give development control orders under the Environmental Planning and Assessment Act 1979 and when development control orders are likely to be an appropriate tool to deal with a compliance issue. This Essential Guide outlines the options available to councils to enforce compliance with a development control order, and the advantages and risks of the different enforcement options available.

When is it appropriate to take steps to enforce compliance with an order?

After the time specified in an order for compliance has passed the Council will need to determine whether or not the order has been complied with (at all or in part). Where an order contains multiple requirements which must be satisfied at different times then a Council can choose whether to monitor compliance progressively or after the last date for compliance has passed. Where the time frame for compliance is relatively long, it can be helpful to send a reminder letter prior to the end of the compliance period, as some recipients may mistakenly assume that an absence of correspondence from a council means that the issue has simply gone away. However, even after the date for compliance has passed, the order continues to have effect.[1]

The following matters may be relevant in deciding how to proceed where a development control order has not been complied with:

1. the nature and amount of work required to comply with the order;
2. the likely costs of doing the outstanding works;
3. whether there have been any factors out of the recipient’s control which have contributed to them failing to comply with the order such as bad weather, illness, limited contractor availability etc.
4. any public interest considerations, such as impacts on third parties arising from ongoing noncompliance; and
5. the attitude of the recipient towards compliance.

In some circumstances it may be appropriate for the council to grant an extension of time for the recipient to comply with the order before taking enforcement action. In this situation, any extension of time which is allowed should be recorded in writing as a modification of the order.[2]

If the Council considers that enforcement action is appropriate then, in order to afford procedural fairness to the recipient, it should first send a letter before action putting the recipient on notice of how it proposes to proceed.

Options for a council to enforce compliance with an order:

1. Mediation

In some situations it may be appropriate to consider mediation, prior to taking other enforcement steps. Factors relevant to whether mediation is likely to succeed include whether there are a variety of ways to achieve compliance with the order, the relationship between the parties, whether immediate action is required, whether there is scope for flexibility, the impact of the non-compliance etc. Mediation can be done on its own or as part of court proceedings.  If mediation is successful it is usually more time and cost effective than proceeding to a contested court hearing.

2. Council giving effect to the order

If the recipient has failed to comply with an order given by the council then, under cl.33 of Schedule 5 of the Act, a council may do ‘all such things as are necessary or convenient to give effect to the terms of the order (including the carrying out of any work required by the order)’.  That section also states that a council may issue a compliance costs notice to recover ‘all or any reasonable costs and expenses incurred in connection with the following things:

1. monitoring action under the order;
2. ensuring that the order is complied with;
3. any costs or expenses relating to an investigation that leads to the giving of the order;
4. any costs or expenses relating to the preparation or serving of the notice of the intention to give the order; and
5. any other matters associated with the order.

The council can then recover any unpaid amounts specified in a notice as a debt in a court of competent jurisdiction (the choice of court will depend on how much is owed to the council).

While this seems like a convenient option, it can be risky for a council to give effect to an order without first obtaining an order from the Court allowing this. This is because giving effect to order will often involve accessing and, in some cases damaging or interfering with, another person’s property. If the order is subsequently found to be invalid a council can be liable to the land owner for damages arising from the work involved in giving effect to the order.[5]  As a matter of practicality, it can also be difficult to recover costs after work has been done, especially from individuals who may have limited capacity to pay.

3. Civil enforcement proceedings

A council can commence civil enforcement proceedings in Class 4 of the NSW Land and Environment Court under s.9.45 of the Act to remedy or restrain a breach of the Act, including the failure to comply with a development control order.[6]  Class 4 proceedings enable a council to seek a range of orders, including a declaration from the Court that the development control order has not been complied with, a court order that the recipient to comply with the outstanding order requirements as well as an order for costs.  To be successful in the proceedings the council will need to establish that the recipient has not complied with the order ‘on the balance of probabilities’. However, even where the Court finds that a breach of the Act has occurred or is likely to occur, it has discretion as to whether or not to enforce compliance.[7] Factors such as the nature of the breach, including the environmental impacts associated with the breach, whether the breach is a purely technical breach, and excessive delay in taking the proceedings, can all be considered by the Court in deciding whether to make orders requiring compliance.

4. Criminal proceedings

Under s.9.37 of the Act, non-compliance with a development control order is also an offence under the Act for which a council can commence criminal proceedings in the Local Court or the NSW Land and Environment Court[8]. It is also possible to give a penalty notice for the offence of failing to comply with a development control order[9].

Criminal proceedings do not directly bring about compliance with an order (unless compliance is achieved as the result of the prosecution having a deterrence effect), and this option is therefore usually appropriate where the intention of an order has been frustrated or compliance is no longer possible.

To be successful in criminal proceedings a council will need to prove its case ‘beyond reasonable doubt’. This requires the Council to be able to exclude any possibility that the development could have been lawfully carried out without the need for development consent (e.g as exempt development). Any such proceedings must also be brought within the statutory time frame (within 2 years of the offence occurring, or within 2 years of the offence coming to the attention of the relevant council investigating officer).

It is also not possible to prosecute for an offence where the same conduct is already the subject of orders made by the LEC in civil enforcement proceedings[10].

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