Ensuring the validity of Development Control Orders

A recent decision in the Land and Environment Court serves as a timely reminder for regulatory authorities when drafting development control orders (DCOs). Should there be non-compliance with a DCO and proceedings effectively brought against the recipient with respect to the same, it is important that the DCO has been drafted correctly, so as to not give rise to a challenge of its validity.

What is a DCO?

A DCO is an important regulatory tool that a council may use in certain circumstances set out in Schedule 5 of the Environmental Planning and Assessment Act 1979 (EP&A Act). Examples of the varying types of DCOs include a ‘Stop Use Order’, ‘Stop Work Order’, ‘Demolish Work Order’ and ‘Compliance Order’.

To ensure validity of a DCO, it must be clear, unambiguous and certain so that a recipient understands the exact terms on which it must be performed. An order must covey “clearly and unambiguously” to the person receiving the order, that the person is being ordered to do or refrain from doing in order to comply and cannot be merely a statement of intention to issue such an order in the future.

Ballina Shire Council v Joblin [2022] NSWLEC 90

In this case, a DCO was issued for the demolition and removal of a swimming pool pursuant to section 9.34 of the EP&A Act.

The terms of the DCO provided that the recipient was to do the following:

• collect and properly dispose of liquid waste from the swimming pool;
• demolish the swimming pool structure and properly dispose of demolition waste;
• apply virgin excavated natural material to fill and reinstate the ground; and
• notify the Council once works have been complete.

The DCO was issued in circumstances where the swimming pool contained seriously hazardous water, had not been maintained to a minimum standard for safe and healthy water, the barrier was non-compliant with the minimum legislative standards creating public safety risk and had high risk of mosquito breeding.

The Council later commenced proceedings against the recipient of the DCO alleging a failure to comply with the DCO resulting in an offence pursuant to section 9.37 of the EP&A Act.

Issues with the DCO

Key to Council’s position was its contention that the swimming pool constituted a building and accordingly it ought properly to be regarded as coming within the terms of the DCO, which had been both clearly and validly issued. In contrast, the defendant to proceedings argued that:

• Council had no power to issue the DCO requiring the demolition in circumstances where the in-ground swimming pool is not a “building”; and

• the terms of the DCO had not explicitly required them to act.

In the alternative, the defendant also argued that the DCP was uncertain as it was expressed in terms of ‘futurity’, noting that the DCO used words such as “Council advises that it will issue you with the Order” and “A Council order, once it is served…”, “Should you fail to comply with the Order once it is served.”  

First Contention: Pools and DCOs

On the first contention, the court found the swimming pool was a “building” for the purpose of issuing a DCO pursuant to Part 1 schedule 5 of the EP&A Act. The definition of “building” under section 1.4(1) of the EP&A Act includes “any structure or part of a structure (including any temporary structure or part of a temporary structure)”. The Commissioner found this to be inclusive of the construction or a structure associated with the in-ground pool given the term is:

• of considerable size and substance in that it involves substantial excavation and associated building works;

• affixed to and recessed in the land; and

• it is a structure which will remain indefinitely on the land.

The Commissioner noted it may be too simplistic to suggest that the pool is a “structure” and caught within the definition of a building, however, considered this appropriate as a purposive construction based on text, context and purpose.

Second Contention: Unclear and Ambiguous

Despite the above finding, the Commissioner found the second contention in favour of the defendant. Objectively, the court found the wording, particularly the reference to “will” and the bold heading “Reasons for the Proposed Order” within the context of the document as a whole, was consistent with unclear and ambiguous language.

It followed that a reasonable person reading the DCO and the language used would not have understood that it required ‘immediate’ compliance. It was open to the reader to consider that the DCO served nothing more than a further warning on the recipient that a DCO might be issued.

Accordingly, the DCO was found to be invalid due to the uncertainty of its terms and the essential element of the offence brought under section 9.37 could not be proven such that the court summarily dismissed the proceedings.

Key takeaways

Council’s must ensure that the drafting of DCOs is clear and unambiguous and also avoids expressing such orders “in terms of futurity”. This is inclusive of the language used for both the headings and the contents of the DCOs issued.

It has been well established that a DCO must be clear ‘on its face’ as the history of a compliance matter and any evidence that the recipient understands the intent of a DCO (such as correspondence exchanged with council) will not be relevant to the Court’s consideration as to its validity. This is because the question is focused on what a reasonable person would understand the DCO to mean and consideration of surrounding matters should not be taken into account. For assistance, or to further discuss the Development Control Orders, please contact the authors of this article.

Thanks to Eadie Melloy for her contribution to this article.