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What are the Consequences of Receiving a Development Control Order?

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Development Control Orders (Order) are important to Councils as a method of dealing with compliance issues. The authority for these comes from the Environmental Planning and Assessment Act 1979 (EPA). Failure to comply with an Order can have financial and legal consequences for the recipient.

What is a Development Control Order?

Essentially, a Development Control Order requires a person to do something, comply with an existing approval or stop doing something. Orders can include Stop Work Orders, Compliance Orders requiring compliance with a planning order, a Demolition Order, or even a demand to stop the demolition or removal of a building.

Does notice need to be given and how must it be served?

Usually, the Council must provide notice of their intention to issue an Order. However, the notice does not need to be given for Stop Work Orders, some Fire Safety Orders and orders given in an emergency.

Notice must be served using one of the methods outlined in the EPA to be enforceable. The notice should cover the intention to give an Order, its proposed terms, the proposed time for compliance, and advise the recipient that they can make representations to the Council as to why the Order should not be given, or regarding the terms of the period for compliance. The reasons for the Order will also typically be provided at the time of issue.

What happens if you fail to comply with a Development Control Order?

If you fail to comply with an Order given by the Council, under the EPA the Council can 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").

Compliance Costs Notice

The Council may also issue a Compliance Costs Notice to recover "all or any reasonable costs and expenses incurred in connection" with the matter. The Council can try to recover any unpaid amounts in Court. If the Order is subsequently found to be invalid, the Council could be liable for damages for the costs of the work involved in carrying out the Order.

Mediation

Mediation may be appropriate before enforcement action and can be more time and cost-effective if successful. Indicators as to the likelihood of successful mediation include whether there are different ways to achieve compliance, the flexibility of the parties, the relationship between them, and how urgently action is required.

Civil enforcement

A Council can commence civil enforcement in Class 4 proceedings (which cover civil enforcement matters) in the NSW Land and Environment Court. These can include a declaration by the Court that an Order has not been complied with, along with Orders for future compliance and costs. The Council will need to establish that you have not complied with an Order on "the balance of probabilities".

The Court has an element of discretion in making a compliance order. Factors that might be considered in exercising discretion can include whether the breach was a mere technicality, the nature of the breach, any environmental impacts and whether there has been any undue delay in bringing forward the proceedings.

Non-compliance with an Order

Non-compliance with an Order is also potentially a criminal offence. In this case, the evidential benchmark is the more stringent "beyond reasonable doubt". The Council must prove that the development could not have been lawfully completed without the need for development consent. Criminal proceedings must be brought within two years of the offence occurring or the offence coming to the attention of the Council.

How do these Orders work in practice?

The recent case of Waverley Council v Ash Samadi and Ors (2020) NSWLEC 67 is illustrative of many of the issues involved as well as the specific issue of service of an Order by email.

In late 2019, the Council issued a Stop Work Order (SWO) in respect of a property under construction. This was not acted upon. In early 2020, the Council made a site visit. The Council issued a new SWO requiring construction work to be stopped "forthwith". This was sent to the developer's email address.

In response to the new SWO, the defendant challenged the validity of the SWO on the grounds that the Council had not followed the correct process set out in the EPA as regards the way the later SWO had been served, the shortness of time given to comply, and the substance of the reasons given for the SWO.

Concerning service by email, although the recipient had never stated they would accept service this way, the Court decided this was acceptable because of previous conduct. There was a history of correspondence by email between the parties.

On the objection raised of the need to comply immediately, the Court decided compliance could be required "forthwith" even in the absence of an emergency noting the earlier SWO requirements.

The Court also decided that the new SWO provided sufficient reasons by clearly identifying the work to which the Order related and the reasons for issuing the Order.

What are the consequences of non-compliance of an Order?

Non-compliance or contravention of an Order can result in civil proceedings and is also potentially a criminal offence with liability to a penalty in either case. The penalty depends on whether a corporation or an individual is involved but can be substantial.

Having received a notice from the Council concerning the intention to issue an Order, remedying the breach may be the best option which would preclude the need for the Order. Alternatively, representations can be made to the Council which must be considered before the Council decide to go ahead with the issue of an Order.

 If, having considered the representations, the Council decide to proceed with issuing the Order, and mediation is not regarded as appropriate, you have the right to appeal to the Land and Environment Court within 28 days of the service of the Order.

Contact our Land and Environment Court Lawyers in Sydney, NSW

Szabo & Associates Solicitors can advise you on all of the issues raised here and are experienced practitioners in all Land and Environment Court matters. Please call us on 02 9281 5088 or complete our online contact form.

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