A recent decision by the NSW Land and Environment Court in Kingfisher Properties Pty Ltd v Northern Beaches Council [2025] NSWLEC 39 (Kingfisher Case) is a timely reminder that development control orders (DCO) must adhere to statutory requirements.
In this case, the Court reduced a $100,000 penalty to just $9,000 after finding that the DCO issued went beyond the powers permitted under the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act).
Background
Kingfisher Properties Pty Ltd (Kingfisher) was a company that built a carport without obtaining the necessary development consent for the construction. Northern Beaches Council (Council) issued a DCO requiring Kingfisher to remove the carport. Initially, this was done via a Compliance Order under item 11, part 1 of Schedule 5 of the EP&A Act. However, a Compliance Order can only be used when a planning approval exists but has not been complied with. Given there was no planning approval in this instance this was not the appropriate order to issue.
Subsequently, Kingfisher appealed against the Compliance Order, and at a conciliation conference, Kingfisher and the Council agreed to a Demolish Works Order being issued under item 3 part 1 of schedule 5 of the EP&A Act (2nd DCO). However, the terms of the 2nd DCO included works that went beyond the scope of what a demolish works order can require. While the Act permitted the 2nd DCO to require the carport’s roof to be demolished, it also required additional actions such as:
- construction of a new roof with guttering;
- submission of a works-as-executed survey plan;
- certification of stormwater drainage works.
These additional requirements exceeded the lawful scope of a Demolish Works Order under the EP&A Act, which is limited to orders “to demolish or remove a building.”
Court Findings
On 21 April 2023, the Council issued a penalty notice to Kingfisher for failing to comply with all the requirements of the 2nd DCO. Electing to have the matter determined by the Local Court, Kingfisher pleaded guilty to the offence and was fined $100,000 by the Local Court. However, in an appeal on the sentence received, the Land and Environment Court (LEC) reassessed the objective seriousness of the breach.
Chief Justice Preston of the LEC held that:
- the 2nd DCO was partially invalid because it exceeded the statutory authority of a Demolish Works Order;
- none of the necessary circumstances for issuing such an order existed in the matter, such as the absence of planning approval, or a breach of relevant development standards;
- the objective seriousness of failing to comply with a DCO that is partly outside power is lower than failing to comply with a valid DCO.
Chief Justice Preston found that, the term of the 2nd DCO requiring the removal of the unlawfully erected carport roof was valid under the EP&A Act, other aspects of the 2nd DCO, specifically those requiring construction work, the submission of a works-as-executed survey plan, and certification of stormwater drainage works, exceeded the statutory power and should not have been issued.
Because Kingfisher had pleaded guilty, the LEC could not overturn the conviction, but it significantly reduced the fine of $100,000 to $9,000 due to the defects in the 2nd DCO.
Key Takeaways
The Kingfisher Case highlights the critical importance of reviewing all elements of Part 1, Schedule 5 of the EP&A Act when issuing a DCO:-
- Clarity of Requirements – Confirm that the action required by the DCO falls within one of the permitted categories in column 1 of part 1, Schedule 5 of the EP&A Act.
- When can it be issued – Ensure that the factual circumstances match those specified in column 2 of part 1, Schedule 5 of the EP&A Act. An order cannot be issued simply because works appear unauthorised, specific triggers under the EP&A Act must apply.
- Who is the recipient – Verify that the person receiving the order is the correct recipient as per column 3 of part 1, Schedule 5 of the EP&A Act.
For regulatory authorities such as local councils, this case serves as a strong prompt to review procedures to ensure that any DCOs issued are appropriate. For recipients, it is a reminder to assess DCOs closely and consider challenging any that fall outside statutory requirements.
If you have questions about a DCO, please contact our Local Government and Planning Team.
