Posted on June 30, 2020 by Anna Sinclair and Carlo Zoppo

When can a development control order be served by email?

The Land and Environment Court has recently considered whether a development control order (Order) was validly issued under the Environmental Planning and Assessment Act 1979 (EPA Act). This decision provides useful guidance to local councils on a number of the requirements when giving an Order, including when they can be served by email, when they can require immediate compliance, and what constitutes sufficient reasons for giving the Order.

Background

In Waverley Council v Ash Samadi and Ors [2020] NSWLEC 67 the Council commenced Class 4 proceedings against the Respondent in respect of development carried out at his Tamarama property. Whilst the Council sought orders in respect of a number of contraventions of the EPA Act, this blog focuses only on its claim that the Respondent was in breach of an Order, being a stop work order, issued pursuant to  s9.35 and Schedule 5 of the EPA Act.

The relevant facts are that in December 2019 the Council issued the Respondent a stop work order (2019 SWO). Notwithstanding this, the Respondent continued construction at his property, and in early 2020, Council became aware of the work during a site inspection. Two days later, the Respondent appealed the 2019 SWO. The Council subsequently revoked the 2019 SWO and issued the Respondent a further stop work order (2020 SWO) requiring him to stop the construction work “forthwith“.  The 2020 SWO was sent to the Respondent’s PO Box and email address.

In response to the Council’s claim that the Respondent was in breach of the 2020 SWO, the Respondent challenged the validity of the 2020 SWO on the basis that the Council failed to comply with the provisions of Schedule 5 of the EPA Act in respect to:

  1. the manner of purported service of the 2020 SWO,
  2. the adequacy of the time given for compliance with the 2020 SWO, and
  3. the adequacy of the reasons given for the 2020 SWO.

Service of documents electronically

An Order (such as the 2020 SWO) must be given by serving a copy of the Order on the person (Sch 5, cl 4). This must be done in accordance with s10.11, which sets out a number of methods of service for notices and other documents under the EPA Act, including subsection (1)(c) that provides it can be sent “by facsimile or electronic transmission… to the person in accordance with arrangements indicated by the person as appropriate for transmitting documents to the person” (emphasis added).

The Respondent argued that given he had never stated to the Council that he would accept service by email, the 2020 SWO was not served in accordance with s10.11(1)(c), and was therefore invalid.

Having regard to the statutory language and context and the ordinary meaning of the words, the Court held that the person can, by conduct, indicate the necessary arrangements. It is not necessary that the person indicates in writing, orally, or even expressly. Here, it was reasonable to infer from the Respondent’s conduct that he had represented that he was prepared to receive communications relating to the property by email to his email address. This was because for about a year the parties had corresponded primarily by email, and the Respondent had not indicated that the email address or the use of the email was not appropriate for the transmission of the documents.

This finding is useful for local councils, as if they electronically serve an Order of other notice under the EPA Act to the person, that service will likely be valid if there has been a history of electronic communication between the parties, and the person has not stated that they are not prepared to receive electronic communications.  That being said, it is critical to any civil or criminal proceedings relating to a breach of an Order or notice that the document has been properly served.

Councils should therefore exercise precaution when serving these documents, and ideally, the document should be served by delivering it to the person, or by sending it by pre paid post to the person’s postal address in accordance with s10.11(1)(a)(ii) or 10.11(1)(b)(ii) of the EPA Act, in addition to the document being served by email.

Adequacy of time for compliance with the 2020 SWO

Clause 27 of Schedule 5 to the EPA Act sets out the period of compliance with an Order, and provides:

(1) A development control order must specify a reasonable period within which the terms of the order are to be complied with.
(2) However, a development control order may require immediate compliance with its terms in circumstances which the person who gives the order believes constitute a serious risk to health or safety or an emergency.

The 2020 SWO specified that the period of compliance was “forthwith” from the time of service of the order.

The Respondent claimed that compliance “forthwith” means “immediate” and that immediate compliance with the terms of an Order is only permitted pursuant to  cl 27(2), i.e. in circumstances which constitute a serious risk to healthy or safety or an emergency. Further, that in determining whether the period for compliance was within that permitted by cl 27(1), the Court was only entitled to look to the terms of the 2020 SWO, and not the circumstances surrounding the giving of the order. Taking the 2020 SWO on its face, it was unreasonable to require an operating building site to immediately shut down.

The Court rejected these arguments, and found that:

  • the determination of whether a period is reasonable under cl 27(1) 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,
  • whether or not a period is reasonable is an objective assessment, and
  • cl 27 does not identify the sole circumstance where the period for compliance can be immediate, but rather, identifies when the period can be unreasonable.

Accordingly, the 2020 SWO could require compliance “forthwith” in the absence of an emergency, etc.  In determining whether this period was reasonable, the Court took into account that the 2019 SWO had been revoked and was replaced by the 2020 SWO, and found it reasonable to assume that at this time the Respondent was complying with the 2019 SWO. As the 2020 SWO did nothing more than maintain the current state of affairs, it was not unreasonable for it to require compliance with the 2020 SWO “forthwith“.

Following from this, an Order should only be required to be complied with immediately if it falls under cl 27(2), or if requiring immediate compliance is reasonable having regard to the nature of the order, what the person is required to do to achieve compliance, and other known circumstances that may influence the determination of a period that is reasonable.

Adequacy of reasons

Clause 5 of Schedule 5 requires that a council must give to the recipient its reasons for the Order. The Respondent argued that it was not sufficient that the 2020 SWO recited that an inspection took place, described what was observed, reproduced photos and indicated that the Council officer considers that work was done in breach of the EPA Act. Rather, there needed to be some reference to the considerations that the relevant officer took into account in forming the opinion to issue the 2020 SWO.

Following previous case law, the Court confirmed that the 2020 SWO must be read as a whole, and the test as to whether sufficient reasons have been provided depends on whether they are capable of making “intelligible the true basis for the decision to issue the order, or give the recipient sufficient information to decide whether to accept the order, or to appeal”. The recitation of the circumstances enlivening the power can comprise sufficient reasons, provided that it makes plain to the recipient the basis and reason for the decision to issue the Order.

It was held that the 2020 SWO provided sufficient reasons as it identified the work to which the order related in such a manner that made it plain to the Respondent the basis and the reasons for the decision to issue the order.

Following from this decision, a sensible approach would be for the reasons for giving of an Order to, at a minimum, include when any inspections of the unauthorised development took place, a description of the observed unauthorised development (and potentially photographs of it), and what provisions of the EPA Act and/or other planning instrument have been contravened. The more information in the reasons the better to meet the test for sufficiency.

The judgment can be read here.

Please contact Anna Sinclair, Senior Associate on 8235 9713 or anna.sinclair@lindsaytaylorlawyers.com.au, or Carlo Zoppo, Partner on 8235 9705 or carlo.zoppo@lindsaytaylorlawyers.com.au to discuss this blog or any other matter.