Posted on January 10, 2024 by Anna Sinclair and Fayette Vermeer
Reminder: Validly issuing a Development Control Order
A relevant enforcement authority (including a local council) can issue a development control order (DCO) in certain circumstances to require a person to do or refrain from doing things to ensure compliance with the Environmental Planning and Assessment Act 1979 (EPA Act).
DCOs must be carefully drafted, and comply with the relevant requirements of the EPA Act and administrative law principles to ensure that they are validly issued. This is particularly important if the enforcement authority proposes to commence civil enforcement or prosecution proceedings if the DCO is not complied with.
This blog outlines a number of the requirements an enforcement authority needs to consider and comply with when preparing and issuing a DCO to ensure its validity cannot be successfully challenged.
1. When can a DCO be issued?
The tables in Parts 1 – 3 of Schedule 5 to the EPA Act specify the circumstances when a DCO (being a general, fire safety or brothel closure order) can be issued (column 2), to whom the order can be issued (column 3), and what the order can require a person to do (column 1).
It is critical that before issuing a DCO 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.
For example, in order to issue a ‘Stop Work Order’, an enforcement agency must be able to establish that building or subdivision work is being carried out in contravention of the EPA Act, that the recipient is either the owner of the land or person apparently engaged in building or subdivision work, and that the terms of the DCO requires the recipient to stop that building or subdivision work.
2. Issuing a Notice of Intention to give an order
Before issuing a DCO, enforcement authorities must observe the requirements of natural justice (cl 6, Sch 5 EPA Act). This includes giving notice to the proposed recipient of the DCO of the intention to give the order, the terms of the proposed order, the period the order must be complied with, and that the recipient may make representations regarding the order (cl 8, Sch 5 EPA Act).
If a notice of intention to issue a DCO (NOI) is not given, a DCO can be challenged for invalidity. However, if the order is given in an emergency, the natural justice requirements do not need to be observed (cl 6(2), Sch 5 EPA Act).
3. Drafting the terms of a NOI and DCO
When drafting the terms of a NOI and a DCO, the following requirements and principles must be complied with to ensure that the validity of the NOI and DCO cannot be challenged:
(i) The terms of the order must be certain and clear
A DCO must clearly and unambiguously convey to a reasonable reader what it is they need to do, or refrain from doing, in order to comply with the terms of the orders: Bobolas v Waverley Council  NSWCA 126. In Ballina Shire Council v Joblin  NSWLEC 90, the Court held that an order will not be enforced unless it is expressed in clear and unambiguous language. You can read our earlier post regarding this case here.
(ii) The terms of the order must be reasonable and proportionate
A DCO must be a proportionate, appropriate and reasonable response to the issue, and it cannot be unreasonable, otherwise it may be open to challenge. The reasonableness of a DCO depends on whether the terms can be justified and are intelligible in the circumstances: Minister for Immigration and Citizenship v Li  HCA 18.
(iii) The period for compliance must be reasonable
A DCO must specify a reasonable period within which the terms of the order are to be complied with (cl 27 of Sch 5).
Whether a period is reasonable will turn on the particular facts of each case and will depend on: the nature of the order; what is required to achieve compliance; and what are the known circumstances present that may influence the determination of a period that is (in those circumstances) reasonable: Waverley Council v Ash Samadi  NSWLEC 67. You can read our previous blog regarding this case here.
(iv) Reasons for giving the order must be provided
An enforcement authority must give reasons in support of the giving of the order at the time that a DCO is given (cl 5, Sch 5 EPA Act). The reasons should also be included in the NOI.
The reasons should make the basis of the decision to issue the order understandable or give the recipient sufficient information to decide whether to appeal the order: Lederer v Sydney City  NSWLEC 272 (Lederer)). The reasons must do more than merely restate the circumstances, which permits the enforcement authority to issue the order. The reasons must also make clear the discretionary basis on which the powers under the EPA Act are being exercised: Van Haasteren v South Sydney Council (2000) 109 LGERA 252; Hutchison 3G Australia Pty Limited v Hurstville City Council  NSWLEC 53.
4. Considering any representations
The natural justice requirements also oblige enforcement authorities to hear and consider representations made by the recipient of the proposed order (cl 14, Sch 5 EPA Act).
Representations, which are a relevant consideration that must be taken into account by decision-makers, must be given more attention than ‘mere lip service’ and be meaningfully, genuinely, and properly considered by enforcement authorities to avoid challenge to the DCO: Anderson v Director General of the Department of Environmental and Climate Change & Anor  NSWCA 337.
5. Issuing an order
Once steps (2) to (4) have been complied with, enforcement authorities can either give an order in accordance with the proposed order, give an order modifying the proposed order, or not give an order (cl 15, Sch 5 EPA Act).
If an enforcement authority gives an order modifying the proposed order, the modification should arise from the representations made by the recipient and cannot alter the subject matter or substance of the proposed order. For example, in Lederer, the proposed order directed the removal of a specified sign, while the modification directed the removal of a different sign. The Court found that this was not a modification because it fundamentally changed the substance of the order and held that the council needed to give the recipient a further notification and opportunity to make representations.
DCOs can be complex documents to draft. However, by complying with the above requirements and principles, an enforcement authority can seek to ensure that a DCO is validly issued and can withstand legal challenge.
If you have any questions regarding the above, please leave a comment below or contact Anna Sinclair on 02 8235 9713 or Fayette Vermeer on 02 8235 9730.