Posted on July 26, 2022 by Katie Mortimer and Stuart Simington
LEC reaffirms that development control orders must be unambiguous
Last week, the Land and Environment Court considered a challenge to the validity of a development control order in criminal proceedings.
The decision serves as an important reminder for regulatory authorities when drafting development control orders (DCOs).
In order to be valid, a DCO must be clear, unambiguous, and certain, so that a reasonable recipient understands what the DCO requires to be done. The order in question did not meet this test.
In July 2019, a local council issued a DCO pursuant to section 9.34 of the Environmental Planning and Assessment Act 1979 (EPA Act), requiring the demolition and removal of a swimming pool (Order).
Amongst other reasons, the Order was issued on the basis that the swimming pool:
- contained water that was a water safety hazard to occupiers,
- had a barrier that was not compliant with the Swimming Pools Act 1992 and Swimming Pools Regulation 2018,
- created unhealthy conditions conducive for the breeding of mosquitoes and cane toads,
- was unsightly and unhealthy.
In December 2021, the council commenced criminal prosecution proceedings in the Land and Environment Court alleging one count of failure to comply with the Order, being an offence under section 9.37 of the EPA Act.
Collateral Challenge to the Validity of the Order
By way of defence, the Defendant challenged the validity of the Order, arguing that it was invalid either on the basis that the swimming pool was not a ‘building’ for the purposes of Schedule 5 of the EPA Act (governing DCOs), or alternatively that the Order was uncertain.
At the outset of the Court’s reasoning, Robson J set out that where a prosecution is premised on the validity of a DCO, there is an entitlement for a defendant to raise as a defence, a collateral challenge concerning the validity of the DCO.
The Order was Uncertain
The Defendant argued that the Order was invalid, as it did not convey that something needed to be done due to its phrasing ‘in terms of futurity’.
The Defendant pointed to various wording choices throughout the Order, that suggested an order was proposed in the future, rather than representing that the Order was a DCO. This wording included:
“Council advises that it will issue you with the Order”,
“A Council order, once it is served…”,
“Should you fail to comply with the Order once it is served”,
“In the event that [Council] serves an Order…”,
“Council will issue you with the Order as proposed”,
the heading “Reasons for the Proposed Order” and
where the Order variously refers to “an order” rather than ‘the’ or ‘this’ order
Given this language, the Defendant submitted that a reasonable reader would not be satisfied the Order required immediate compliance and would believe it was simply a further warning.
The Court agreed, relying on well-established principles that:
- the validity of an order depends on strict compliance with the statutory conditions governing its issue,
- an order will not be enforced unless it is expressed in clear and unambiguous language given the potentially serious consequences of non-compliance,
- an order cannot merely be a statement of intention to issue such an order in the future: see Bobolas v Waverley Council  NSWCA 126 and Mailey v Sutherland Shire Council  NSWCA 343.
Robson J considered that reading the Order as a whole, there was a sufficient element of futurity to make the Order uncertain and therefore invalid.
A Swimming Pool is a Building for the purpose of Schedule 5 of the EPA Act
The Court disagreed with the Defendant’s alternative argument that a swimming pool was not a building for the purposes of Schedule 5 of the EPA Act (being the Schedule that governs the issue of DCOs).
The Defendant argued that the swimming pool was a ‘work’ and not a ‘building’, because the pool had not been ‘erected’.
The Defendant sought to rely on the Court of Appeal’s decision in Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd  NSWCA 240. In Hakea the Court found that a structure that is not erected cannot be a building. Applying this reasoning, the Defendant argued that an in-ground swimming pool is not ‘erected’, as it was constructed by digging a hole, laying reinforcing steel, and pouring concrete. The pool was not raised or put together upright.
The Court did not accept the argument – finding that a swimming pool is a building for the purposes of Schedule 5 of the EPA Act.
The Court distinguished the case of Hakea, on the basis that decision did not concern a DCO and Basten JA’s reasoning in that decision emphasised that the context of words in the statute are important.
Robson J held that even if it was too simplistic to accept that a pool was a ‘structure’ and therefore caught by the definition of ‘building’ within the EPA Act, in the context of Schedule 5 of the EPA Act, having regard to the purpose for which the DCO provisions of the EPA Act were enacted, a purposive construction was appropriate and should be preferred to the ordinary interpretation given the planning law’s concern for matters such as safety and the stability of structures. Having found this to be the correct approach, His Honour stated at  that:
‘it is consistent with the text, context and purpose to find that the term “building” in Order 3 is not confined to buildings and structures “erected” (in the sense of erected above-ground) and its purpose is to provide for the regulation of the safe and orderly use of land such that the term “building” in this context would be given a meaning that includes, in the present circumstances, the swimming pool.’
This decision serves as a reminder for regulatory authorities that DCOs must clearly and unambiguously convey to the recipient what they are being ordered to do (or refrain from doing).
Further, before commencing criminal proceedings alleging non-compliance with a DCO, a regulatory authority should be satisfied that the relevant DCO will withstand any collateral challenge.
You can read the decision the subject of this post here: Ballina Shire Council v Joblin  NSWLEC 90
You can also read earlier posts of ours concerning the drafting of orders here and here. Our post on the decision of Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd  NSWCA 240 is here.
If you wish to discuss the issues raised in this post, please contact Katie Mortimer on 8235 9716 or Stuart Simington on 8235 9704.