Essential Guide

Essential Guide: Local Government Officers’ Guide to Service

WRITTEN BY Victoria McGinness

This Essential Guide will assist local council officers to ensure that statutory notices and orders under the Environmental Planning and Assessment Act 1979 (EPA Act), the Protection of the Environment Operations Act 1997 (POEO Act) and Local Government Act 1993 (LG Act) are served effectively.

There is significant overlap between the accepted methods of service under each Act, but also some important differences. It is important that Council officers are cognisant of these differences to ensure service is effective in each instance.  

Methods of service

Environmental Planning and Assessment Act 1979

The requirements for service under the EPA Act are set out in s.10.11 of the Act.

Notices or other documents under the Act may be served on an individual by delivering it to ‘him or her’. The use of personal pronouns indicates the requirement for personal service and not, for example, leaving a document in that person’s mailbox, although service via post is an alternative authorised option.

The Act provides that service can be effected by prepaid post addressed to the individual at the address, if any, specified by him/her for the giving of notices or service of documents under the Act. Only where no such address has been specified may the notice be posted to the person’s usual or last known place of abode or business. The Act provides that a document sent by prepaid post in accordance with s.10.11 shall be deemed to have been given or served at the time at which the notice or other document would be delivered in the ordinary course of post.

Unlike the Local Government Act 1993 (LG Act), the EPA Act does not specify an express power to leave the documents intended for service unattended in a conspicuous place or depositing the documents at a post office box or document exchange in NSW.[1]

The EPA Act provides that, for service upon a legal person who is not an individual (for example, a company), a notice must be served by leaving it at that person’s place of business or the registered office of the corporation with a person 16 years or older apparently in the service of the recipient of the notice. The registered office of a company can be identified through a search of the ASIC Registers.

A notice or document may be served on a person (such as an individual or a corporation) by fax or email, but only in accordance with arrangements indicated by the person as appropriate for transmitting documents to the person. In Waverley Council v Ash Samadi, Justice Duggan noted that the EPA Act does not prescribe any particular manner of communicating this arrangement and, in that case it was found that the Respondent’s conduct in communicating with the Council via email (in the absence of any notice to the Council that this form of communication was unacceptable) was sufficient to indicate that the Respondent considered it appropriate to have documents emailed to him for the purpose of s.10.11 of the Act.[2]

Protection of the Environment Operations Act 1997 (NSW)

Methods of service under the POEO Act are set out in s.321 of the Act. Unlike the EPA Act, the POEO Act does not differentiate between service on an individual and service on a company, but instead provides for service upon a “person” which includes an individual, a corporation and a body corporate or politic.[3] It should be noted that the POEO Act does not affect any other mode of service under any other Act,[4] e.g. service on a corporation can still be effected in accordance with the Corporations Act 2001 (Cth).[5]

The POEO Act allows notices or other documents to be served on a person in several ways, including personal delivery, fax, email, and leaving the documents addressed to the person at a document exchange.[6] Service may also be effected by being duly stamped and posted to the place last shown in the records of the Council as the person’s last place of residence or business, or to a place indicated by the person as an address to which correspondence may be posted, including a post office box. In this regard, a Council may be able to rely on the address specified in the notice of sale/transfer report.[7]

For service via fax, email or document exchange, the relevant address must be as indicated by the person as appropriate for transmitting correspondence or documents.

The POEO Act also permits the delivery of documents intended for service to the place of residence or business of the person. In this case, documents can be left with the person themselves or with some other person. The Act does not stipulate that this person must be above a certain age. Importantly, the POEO Act requires documents to be left with a person.

Local Government Act 1993 (NSW)

The methods for service under the LG Act are the broadest of these three statutes and are set out in s708, s.709 and s.710. Service can be effected personally or by post, email, fax, fixing to land, attaching to a vehicle or depositing at a post office box. Section 709 applies to the service of documents on a corporation and allows them to be served on the secretary or the public officer. The Act expressly allows a notice to be addressed to “rateable person”, “owner” or “occupier” without further description of the individual.

The notice intended for service may be delivered by personal service or by delivery to the premises where the person to be served lives or carries on business. In this case, the notice intended for service will need to be left with a person above 14 years of age who resides or is employed at the premises.

Service can also be effected by posting the notice by a prepaid letter addressed to the person at their last known place of residence or business or it may also be deposited at a post office box or document exchange in NSW which is maintained by the person.

If the land, building, or premises is unoccupied, or the Council is unaware of the person’s residence and business, the Council may advertise in the approved form[8] by publication in a newspaper or a manner otherwise determined by the council having regard to the object of bringing notices to the attention of owners.

Another accepted method of service is via fax or email to a number or address specified by the person where the person has made a written request to the council that notices of that kind be transmitted to the person by this method of delivery. The person may withdraw such a request in writing.

Service may also be effected by fixing the notice on a conspicuous part of the land, building or premises owned or occupied by the person. Ownership can be confirmed by a title search. There is currently no case law on the meaning of “conspicuous”, however this term is defined in the Macquarie Dictionary to mean “easy to be seen” or “readily attracting attention”.[9]

If the offence relates to a vehicle, service may be effected by attaching notice to the vehicle concerned.[10]

Service under any of the methods identified in s.710 is taken to have been ‘effected’ at the time the method is complete (i.e. when the document is posted, emailed, fixed to the land etc). The only exception to this is in relation to the deposit of the document in a box of document exchange, in which case service is taken to become effective 2 days after the deposit of notice.

Authorised vs Unauthorised Service

The Land and Environment Court has previously held that, unless a statute mandates a particular method of service, ‘a document is served if it comes into the possession of the person for whom it is intended, and the means by which the person obtained the document are usually immaterial’.[11] In each of the Acts discussed in this guide, the relevant provisions with respect to service provide that documents “may” be served as provided by the section, not “must“ be served. This approach has been characterised as being ‘facultative, not mandatory or exhaustive’. As such, if a document is served in a way which is not expressly authorised under the relevant Act, this will not necessarily mean that it has not been effectively ‘served’.

However, there is risk in departing from the methods specified in each Act. For example, in Tweed Shire Council v Furlonger[12] the Council hand delivered an order under the LG Act to the defendant’s mailbox and then sought to prosecute the defendant for failing to comply with that order. Hand delivery to a mailbox is not an authorised method of service under the LG (or any other) Act.  The Court found that the defendant did not receive the order and the prosecution failed. Justice Biscoe explained that, in the context of the LG Act, if a person actually received a notice hand which was delivered to their mailbox then it will have been served, even though that is not a method of service authorised by s 710. However, where a person does not receive a document which has been hand delivered to their mailbox then, as that is not a method of service authorised by the Act, it will be taken not to have been served.

To avoid the issues experienced by the Council in Tweed Shire Council v Furlonger we recommend that Council officers take care to serve documents in a way that is authorised under the relevant Act in order to take advantage of provisions which will deem a document to have been served, even without proof of receipt.  It can do this in addition to service by other methods which may bring the notice to the attention of the intended recipient.

Requirements for service before prosecution

Councils should note that, under s.628(5) of the LG Act and s.9.37 of the EPA Act, it is a sufficient defence to a prosecution for an offence for failing to comply with an order if the defendant satisfies the court that the defendant was unaware of the fact that the activity in respect of which the offence arose was the subject of an order. As such, even if a person or company has been served with an order in accordance with the relevant provision, if they are not actually aware of the order, they cannot be prosecuted for disobeying it.[13] In Furlonger his Honour explained that this type of provision is consistent with fundamental principle: no one should be found guilty of the crime of disobeying a statutory order of which they are unaware.[14]

Practical Guidance

There are a number of practices that we recommend Local Councils adopt to ensure effective service. In all cases, a record of service should be maintained. When serving in person, the documents may be delivered by any person, and there is no requirement that service be done by Council employees. A Council may therefore wish to engage a process server to serve documents in some circumstances.

Where a person has replied to a notice the reply may be construed as confirmation of receipt of the notice. Importantly, service is also effected when the documents intended for service come into the possession of the person being served, at which point the method of service becomes immaterial.[15]

More information

Please note that the law detailed in this Essential Guide is correct as of 16 February 2022. If you have a specific question regarding service, please call Alice Menyhart or Victoria McGinness on (02) 6274 0999.

The content contained in this guide is not legal advice. Readers should contact us and receive our specific advice on the particular situation that concerns them.

[1] Local Government Act 1993 (NSW) s 710.

[2] Waverley Council v Ash Samadi and Ors [2020] NSWLEC 67 [134].

[3] Interpretation Act 1987 s 21

[4] Protection of the Environment Operations Act 1997 (NSW) s 321(2).

[5] Corporations Act 2001 (Cth) s 109X.

[6] Protection of the Environment Operations Act 1997 (NSW) s 321.

[7] Snowy Monaro Regional Council v Cmunt [2017] NSWLEC 95 at [45]

[8] Local Government Act 1993 (NSW) Dictionary (definition of ‘approved form’)

[9] Macquarie Dictionary (online at 6 December 2021) “conspicuous”.

[10] Local Government Act 1993 (NSW) s 710(2)(f).

[11] Tweed Shire Council v Furlonger [2014] NSWLEC 156

[12] [2014] NSWLEC 156

[13] Tweed Shire Council v Furlonger [2014] NSWLEC 156 at [21].

[14] Ibid.

[15] Howship Holdings Pty Ltd v Leslie (No 2) (1996) 41 NSWLR 542 at 544;; Tweed Shire Council v Furlonger (2014) 206 LGERA 1; [2014] NSWLEC 156 [20]; Snowy Monaro Regional Council v Cmunt [2017] NSWLEC 95 [46] – [47].

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