Posted on May 9, 2025 by Liam Mulligan 6

REMINDER: Development Control Orders must be within the scope of powers under the EPA Act

A recent decision of the Land and Environment Court serves as a reminder to regulatory authorities such as local councils of the importance of carefully considering the terms of their statutory orders to ensure that they meet the requirements of the relevant legislation.

The case involved an appeal against the severity of a sentence imposed by the Local Court for failure to comply with the terms of a development control order (DCO), contrary to s 9.37(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). A DCO is an order which requires a person to do, or refrain from doing, certain specified things.  It is a criminal offence under the EPA Act to fail to comply with a DCO.

Background

A particular company (Kingfisher) constructed a carport at a residential property without obtaining development consent beforehand . The Council issued Kingfisher with a DCO under s 9.34(1)(a) and the table to Part 1 of Schedule 5 of the EPA Act. The specific order the Council issued was a “Compliance Order” under item 11 of the table to Part 1 of Schedule 5. That order requires a person to comply with a planning approval and can only be issued where a planning approval has not been complied with.

Clearly, where no planning approval was obtained at all, a Compliance Order is not the appropriate order for an authority to give.

Kingfisher appealed against the Compliance Order to the Land and Environment Court. In those proceedings, Kingfisher and the Council agreed upon the terms of different DCO in substitution for the one issued by the Council. That DCO (New DCO) was under item 3 of the table to Part 1 of Schedule 5 of the EPA Act, being a Demolish Works Order. However, the New DCO required Kingfisher to do more than just demolish works (which is all that a demolish works order can require).

Kingfisher partially complied with the New DCO, but did not carry out all of its requirements (by failing to carry out certain works and alter certain other works).

On 21 April 2023, the Council issued a penalty notice to Kingfisher for failing to comply with all of the requirements of the New DCO. Kingfisher plead guilty to the offence in the Local Court and was fined $100,000.

Issue

Whilst Kingfisher had pleaded guilty to failing to comply with the New DCO, and the appeal before the Court was on the severity of the sentence imposed, on appeal Preston CJ considered whether the New DCO had been validly issued by the Council.

Preston CJ considered that the question of whether the New DCO had been validly issued was relevant to the objective seriousness of Kingfisher’s failure to comply with the order because “it is less objectively serious to fail to comply with requirements of a development control order that are outside power than it is to fail to comply with requirements of a development control order that are within power“. That analysis may well be correct where a recipient of a notice has protested that the order was unlawful but is perhaps a surprising conclusion in this case where  Kingfisher clearly considered that the New DCO was lawful (as it agreed to the making of the order in earlier proceedings) and did not raise any issue with the validity of the order either before the Local Court or on appeal.

Findings

Preston CJ held that Order 1 of the Demolish Works Order requiring removal of the roof of the unlawfully erected carport, and any conditions regulating the removal of the roof was within the scope of power pursuant to Part 1 of Schedule 5 to the EPA Act.

However, that was not the case for Orders 2 and 3 which required the carrying out of certain building work. In respect of those aspects of the New DCO, the Court found that the building work specified in Order 2, and the actions required by Order 3 were matters that could not be required under item 3 of the table to Part 1 of Schedule 5 of the EPA Act. The work under Orders 2 and 3 did not fall within the description of work specified in Column 1 of Part 1 of Schedule 5 of the EPA Act, being “to demolish or remove a building”.

To the extent that Kingfisher failed to comply with other terms of the Demolish Works Order to construct a replacement roof with guttering (Order 2), to submit a works as executed survey plan (Order 3) and to submit certification of the stormwater drainage works, which were outside power, Kingfisher’s conduct did not undermine the purpose of that statutory provision, as an order in those terms ought not to have been issued.

Ultimately, the Court significantly reduced the fine imposed by the Local Court ($100,000) down to $9,000 in recognition of the lesser seriousness of the offending, once the defects in New DCO were understood.

Key Takeaways

This decision serves as a reminder that DCOs must be drafted so that they clearly and unambiguously convey to the recipient what they are being ordered to do (or refrain from doing) and that these orders must be drafted within the limitations of the power provided by Part 1, Schedule 5 of the EPA Act. It is critical that before issuing a DCO, that the enforcement authority has sufficient evidence to establish on the balance of probabilities that the circumstances specified in column 2 exist, that the recipient of the order is the person/s specified in column 3, and that the orders only require the recipient to do the things that are specified in column 1.

The judgment can be read here: Kingfisher Properties Pty Limited v Northern Beaches Council – NSW Caselaw

We have previously blogged on the requirement to validly issue a DCO which you can read at the links here: REMINDER: Validly issuing a Development Control Order | Lindsay Taylor Lawyers  and here: LEC reaffirms that development control orders must be unambiguous | Lindsay Taylor Lawyers

If you wish to discuss the issues raised in this post, please contact Liam Mulligan on (02) 8235 9715.