Environmental Planning and Assessment Act 1979 No 203
Historical version for 5 June 2000 to 7 December 2000 (accessed 20 December 2014 at 15:27) Current version
Part 6

Part 6 Implementation and enforcement

Division 1 General

116   (Repealed)

117   Directions by the Minister

(1)  The Minister may direct a public authority or person having functions under this Act or an environmental planning instrument to exercise those functions at or within such times as are specified in the direction.
(2)  In addition to any direction which may be given under subsection (1), the Minister may direct a council:
(a)  to exercise its functions under Division 4 or 5 of Part 3 in relation to the preparation of a draft local environmental plan in accordance with such principles, not inconsistent with this Act, as are specified in the direction, and
(b)  without limiting paragraph (a), to include in a draft local environmental plan prepared by the council provisions which will achieve or give effect to such principles or such aims, objectives or policies, not inconsistent with this Act, as are specified in the direction.
(3)  A public authority or person to whom a direction is given under subsection (1) or (2) shall comply, and is hereby empowered to comply, with the direction in accordance with the terms of the direction.
(4)  Before giving a direction under subsection (1) or (2), the Minister shall consult with the responsible Minister concerned.

117A, 117B   (Repealed)

118   Appointment of environmental planning administrator

(1)  Where, as a consequence of a failure, in the opinion of the Minister, of a council to comply with, carry into effect or enforce the provisions of this Act, an environmental planning instrument, a direction under section 55, a direction under section 94A or a direction under section 117, the Minister considers it proper to do so, the Minister may, with the concurrence of the Minister for Local Government, by order published in the Gazette, appoint a person to administer all, or such part as is specified in the order, of the functions conferred or imposed on the council by or under this Act.
(2)–(4)  (Repealed)
(5)  Notwithstanding subsection (1), the person shall not enter into contracts in the exercise of the person’s functions except with the consent of the Minister and the concurrence of the Minister for Local Government.
(6)  The person shall, during the period of the person’s appointment under subsection (1), be deemed to be and have the functions of the council specified in the order of the person’s appointment.
(7)  In respect of the period of a person’s appointment under subsection (1), there is payable to the Director, for transmission to the Consolidated Revenue Fund, out of the consolidated fund of the council such remuneration and such costs and expenses as the Minister determines with the concurrence of the Minister for Local Government.
(8)  The regulations may make provision for or with respect to the functions of the person in connection with the person’s appointment and, in particular, for or with respect to:
(a)  the accommodation, if any, to be provided at the offices of the council for the person and any other persons assisting the person in the exercise of those functions, and
(b)  requiring officers and employees of the council to render all necessary assistance to the person in the exercise of the person’s functions in accordance with the person’s appointment and any such officers and employees not to obstruct the person in the exercise of the person’s functions.

Division 1A Entry on to land and other powers

118A   Power of entry

(1)  For the purpose of enabling a council to exercise the council’s functions, the council may authorise a person, in writing, to enter any premises.
(2)  For the purpose of enabling the Minister to exercise the Minister’s functions, the Minister may authorise a person, in writing, to enter any premises.
(2A)  For the purpose of enabling the Director to exercise the Director’s functions, the Director may authorise a person, in writing, to enter any premises.
(3)  Entry may only be made at any reasonable hour in the daytime or at any hour during which business is in progress or is usually carried on at the premises.

118B   Inspections and investigations

For the purpose of enabling a council, the Minister or the Director to exercise the council’s, the Minister’s or the Director’s functions, a person authorised to enter premises under this Division may:
(a)  inspect the premises and any article, matter or thing on the premises, and
(b)  for the purpose of an inspection:
(i)  open any ground and remove any flooring and take such measures as may be necessary to ascertain the character and condition of the premises and of any pipe, sewer, drain, wire or fitting, and
(ii)  require the opening, cutting into or pulling down of any work if the person authorised has reason to believe or suspect that anything on the premises has been done in contravention of this Act, the regulations or an environmental planning instrument, and
(c)  take measurements, make surveys and take levels and, for those purposes, dig trenches, break up the soil and set up any posts, stakes or marks, and
(d)  require any person at those premises to answer questions or otherwise furnish information in relation to the matter the subject of the inspection or investigation, and
(e)  take samples or photographs in connection with any inspection.

118C   Notice of entry

(1)  Before a person authorised to enter premises under this Division does so, the council, the Minister, the Director or the person must give the owner or occupier of the premises written notice of the intention to enter the premises.
(2)  The notice must specify the day on which the person intends to enter the premises and must be given before that day.
(3)  This section does not require notice to be given:
(a)  if entry to the premises is made with the consent of the owner or occupier of the premises, or
(b)  if entry to the premises is required because of the existence or reasonable likelihood of a serious risk to health or safety, or
(c)  if entry is required urgently and the case is one in which the general manager of the council, the Minister or the Director has authorised in writing (either generally or in the particular case) entry without notice.

118D   Use of force

(1)  Reasonable force may be used for the purpose of gaining entry to any premises (other than residential premises) under a power conferred by this Division, but only if authorised by the council, the Minister or the Director in accordance with this section.
(2)  The authority of the council, the Minister or the Director:
(a)  must be in writing, and
(b)  must be given in respect of the particular entry concerned, and
(c)  must specify the circumstances which are required to exist before force may be used.

118E   Notification of use of force or urgent entry

(1)  A person authorised to enter premises under this Division who:
(a)  uses force for the purpose of gaining entry to the premises, or
(b)  enters the premises in an emergency without giving written notice to the owner or occupier,
must promptly advise the council, Minister or Director (whichever authorised the person to enter the premises under section 118C (3) or 118D (1)).
(2)  The council, the Minister or the Director must give notice of the entry to such persons or authorities as appear to the council, the Minister or the Director to be appropriate in the circumstances.

118F   Care to be taken

(1)  In the exercise of a function under this Division, a person authorised to enter premises must do as little damage as possible. The council, the Minister or the Director must provide, if necessary, other means of access in place of any taken away or interrupted by a person authorised by it.
(2)  As far as practicable, entry on to fenced land is to be made through an existing opening in the enclosing fence. If entry by that means is not practicable, a new opening may be made in the enclosing fence, but the fence is to be fully restored when the need for entry ceases.

118G   Recovery of cost of entry and inspection

If a person authorised by a council, the Minister or the Director enters any premises under this Division for the purpose of making an inspection and as a result of that inspection, under a power conferred on the council, the Minister or the Director, the council, the Minister or the Director requires any work to be carried out on or in the premises, the council, the Minister or the Director may recover the reasonable costs of the entry and inspection from the owner or occupier of the premises.

118H   Compensation

A council, the Minister or the Director must pay compensation for any damage caused by any person authorised by the council, the Minister or the Director under this Division to enter premises, other than damage arising from work done for the purpose of an inspection which reveals that there has been a contravention of this Act, the regulations or an environmental planning instrument.

118I   Authority to enter premises

(1)  A power conferred by this Division to enter premises, or to make an inspection or take other action on premises, may not be exercised unless the person proposing to exercise the power is in possession of an authority and produces the authority if required to do so by the owner or occupier of the premises.
(2)  The authority must be a written authority which is issued by the council, the Minister or the Director and which:
(a)  states that it is issued under this Act, and
(b)  gives the name of the person to whom it is issued, and
(c)  describes the nature of the powers conferred and the source of the powers, and
(d)  states the date (if any) on which it expires, and
(e)  describes the kind of premises to which the power extends, and
(f)  in the case of a council, bears the signature of the general manager.
(3)  This section does not apply to a power conferred by a search warrant.

118J   In what circumstances can entry be made to a residence?

The powers of entry and inspection conferred by this Division are not exercisable in relation to that part of any premises being used for residential purposes except:
(a)  with the permission of the occupier of that part of the premises, or
(b)  if entry is necessary for the purpose of inspecting work being carried out under a development consent (including a complying development certificate), or
(c)  under the authority conferred by a search warrant, or
(d)  if an application for a building certificate has been made under section 149B in respect of premises used for residential purposes and entry is necessary for the purpose of inspecting the premises in order to issue a building certificate in accordance with sections 149A–149E.

118K   Search warrants

(1)  A person generally or specially authorised by a council, the Minister or the Director for the purposes of this section may apply to an authorised justice if the authorised person has reasonable grounds for believing that the provisions of this Act, the regulations, an environmental planning instrument or the terms of a development consent, complying development certificate or order under this Act have been or are being contravened in or on any premises.
(2)  An authorised justice to whom such an application is made may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising an authorised person named in the warrant:
(a)  to enter the premises, and
(b)  to search the premises for evidence of a contravention of this Act, the regulations, an environmental planning instrument or the terms of a development consent, complying development certificate or order under this Act.
(3)  Part 3 of the Search Warrants Act 1985 applies to a search warrant issued under this section.
(4)  Without limiting the generality of section 18 of the Search Warrants Act 1985, a police officer:
(a)  may accompany an authorised person executing a search warrant issued under this section, and
(b)  may take all reasonable steps to assist the authorised person in the exercise of the person’s functions under this section.
(5)  In this section, authorised justice has the same meaning as in the Search Warrants Act 1985.

118L   Special provision with respect to fire brigades

(1)  An authorised fire officer within the meaning of section 121ZC may exercise the functions conferred on a person authorised by a council, the Minister or the Director under this Division for the purpose of inspecting a building to determine:
(a)  whether or not adequate provision for fire safety has been made in or in connection with the building, or
(b)  whether or not such of the provisions of this or any other Act or law as may be prescribed for the purposes of this paragraph have been complied with.
(2)  An inspection for the purposes of subsection (1) (a) is not, however, authorised for premises other than places of shared accommodation except:
(a)  when requested by the council of the area in which the building is located, or
(b)  when requested by a person who holds himself or herself out as the owner, lessee or occupier of the building, or
(c)  when the Commissioner of New South Wales Fire Brigades has received a complaint in writing that adequate provision for fire safety has not been made concerning the building.
(3)  A council must, at the request of the Commissioner of New South Wales Fire Brigades, make available a person authorised by the council for the purposes of the inspection, and the person concerned is to be present during the inspection.
(4)  The Commissioner of New South Wales Fire Brigades must send a report of any inspection carried out under this section to the council concerned.
(5)  This Division applies to an authorised fire officer within the meaning of section 121ZC in the same way as it applies to a council and a council employee (or other person) authorised by the council.

118M   Councils to carry out fire-safety inspections on request of Commissioner of NSW Fire Brigades

(1)  A council must, at the written request of the Commissioner of New South Wales Fire Brigades, cause any building specified in the request to be inspected for the purpose of determining whether or not adequate provision for fire safety has been made in or in connection with the building.
(2)  As soon as practicable after such an inspection has been carried out, the council must send a report of the inspection to the Commissioner of New South Wales Fire Brigades.

118N   Obstruction of authorised persons

A person must not obstruct, hinder or interfere with an authorised person in the exercise of the person’s functions under this Division.

Maximum penalty: 20 penalty units.

Division 2 Public inquiries and settlement of disputes

119   Public inquiry

(1)  The Minister may at any time direct that an inquiry be held, in accordance with this section, by a Commission of Inquiry appointed under subsection (2) with respect to:
(a)  any matter relating to the administration and implementation of the provisions of this Act or any environmental planning instrument or relating to the administration and implementation of the provisions of any other Act administered by the Minister,
(b)  all or any of the environmental aspects of proposed development the subject of a development application (whether or not it is designated development), or of a part of any such proposed development, or
(c)  all or any of the environmental aspects of an activity referred to in section 112 (1), or of a part of any such activity, or
(d)  a proposal to constitute, alter or abolish a development area under section 132 or 133.
(2)  Where, pursuant to subsection (1) or section 49 (1) or 89 (3), an inquiry is directed to be held, the Minister may appoint one or more Commissioners of Inquiry to constitute a Commission of Inquiry to hold the inquiry and may appoint one or more persons to assist such a Commission.
(3)  Any person appointed under subsection (2) to assist a Commission of Inquiry shall be paid such remuneration and allowances as may be determined in respect of the person by the Minister.
(3A)  Where the Chairperson of Commissioners of Inquiry is appointed with one or more Commissioners of Inquiry to constitute a Commission of Inquiry, the Chairperson shall preside at the proceedings of the Commission.
(3B)  Except as provided by subsection (3A), where the Deputy Chairperson of Commissioners of Inquiry is appointed with one or more Commissioners of Inquiry to constitute a Commission of Inquiry, the Deputy Chairperson shall preside at the proceedings of the Commission.
(4)  Where there is more than one Commissioner of Inquiry constituting a Commission of Inquiry, neither or none of whom is the Chairperson of Commissioners of Inquiry or the Deputy Chairperson of Commissioners of Inquiry, the Minister shall appoint one of the Commissioners to preside at the proceedings of the Commission.
(5)  Except as provided in subsection (1), a Commission of Inquiry is not subject to directions by the Minister or any other person in relation to the contents of its report, findings or recommendations.
(6)  A Commission of Inquiry constituted under this section shall hold an inquiry in accordance with the direction of the Minister or Director, as referred to in subsection (1) or (2), shall report its findings and recommendations to the Minister or Director, as the case may be, and shall, after so reporting, but subject to subsection (7), make public those findings and recommendations.
(7)  A Commission of Inquiry shall not make public any evidence or matters in respect of which directions have been given under section 120 (5) (b) or matters the publication of which is excepted from section 120 (8).
(8)  If the inquiry was held with respect to proposed development (other than designated development), or part of any such proposed development, the subject of a development application, a copy of the findings and recommendations, and of any comment that the Minister may consider appropriate to make on them, must be forwarded by the Minister:
(a)  to the consent authority having the function of determining the application, and
(b)  to any public authority whose concurrence to the granting of consent to the application is required.

120   Procedure at inquiries

(1)  Subject to this section, an inquiry by a Commission of Inquiry constituted under section 119 shall be held in public and evidence in the inquiry shall be taken in public and may be required to be taken on oath or affirmation.
(2)  Before a Commission of Inquiry commences to hold an inquiry, it shall give reasonable notice, by advertisement published in the Gazette and in such newspapers as it thinks necessary, of its intention to hold the inquiry, of the subject of the inquiry and of the time and place at which the inquiry is to be commenced.
(3)  A Commissioner of Inquiry may, by writing signed by the Commissioner summon a person to appear before the Commission of Inquiry at a time and place specified in the summons to give evidence and to produce such books and documents (if any) as are referred to in the summons.
(4)  A person served with a summons to appear as a witness at an inquiry by a Commission of Inquiry shall not, without reasonable excuse:
(a)  fail to attend as required by the summons, or
(b)  fail to appear and report himself or herself from day to day unless excused or released from further attendance by or on behalf of the Commission.

Maximum penalty: 10 penalty units.

(5)  Where a Commission of Inquiry is satisfied that it is desirable to do so in the public interest by reason of the confidential nature of any evidence or matter or for any other reason, the Commission may:
(a)  direct that an inquiry or a part of an inquiry shall take place in private and give directions as to the persons who may be present, or
(b)  give directions prohibiting or restricting the publication of evidence given before the Commission or of matters contained in documents lodged with the Commission,
or do both of those things.
(6)  A Commission of Inquiry may, if it thinks fit, permit a person appearing as a witness before the Commission to give evidence by tendering, and verifying by oath or affirmation, a written statement.
(7)  Where a Commission of Inquiry considers that the attendance of a person as a witness before the Commission would cause serious hardship to the person, the Commission may permit the person to give evidence by sending to the Commission a written statement, verified in such manner as the Commission allows.
(8)  Where evidence is given to a Commission of Inquiry by a written statement in accordance with subsection (6) or (7), the Commission shall make available to the public in such manner as the Commission thinks fit the contents of the statement other than any matter the publication of which, in the opinion of the Commissioner, would be contrary to the public interest by reason of its confidential nature or for any other reason.
(9)  Subject to this section and the regulations:
(a)  the procedure to be followed at an inquiry by a Commission of Inquiry shall be determined by the Commission, and
(b)  a Commission of Inquiry is not bound by the rules of evidence.
(10)  An oath or an affirmation may be administered for the purposes of this section by a Commissioner of Inquiry or by any person authorised by the Oaths Act 1900 to administer a judicial oath.
(11)  Nothing in this section derogates from any law relating to Crown privilege.
(12)  This section is subject to section 120A.

120A   Additional procedural requirements where water licence or water approval is involved

(1)  A Commission of Inquiry must cause notice to be given to the Water Administration Ministerial Corporation if, before or at any time up to the conclusion of an inquiry held by it into:
(a)  the environmental aspects of any proposed development the subject of a development application, whether or not it is designated development, or
(b)  the environmental aspects of any activity referred to in section 112 (1),
it is of the opinion that the development or activity involves a work that may require a water licence or a work that may require a water approval.
(2)  For the purposes of subsection (1), an inquiry concludes when the Commission of Inquiry provides its report on the inquiry to the Minister under section 119 (6), regardless of when any public hearings conducted in connection with the inquiry are concluded.
(3)  The Commission of Inquiry must also cause notice to be given to the applicant for the development, or the proponent of the activity, advising that an application for a water licence or for a water approval should be made promptly if it has not already been made.
(4)  The Commission of Inquiry must defer concluding its inquiry for sufficient time to enable the applicant or proponent:
(a)  to make an application for a water licence under section 10, and for objectors to lodge objections in accordance with section 11, of the Water Act 1912, or
(b)  to make an application for a water approval under section 167, and for objectors to make objections in accordance with section 170, of that Act.
(5)  As soon as practicable after the applicant’s or proponent’s:
(a)  application for a water licence is referred to it under section 11A of the Water Act 1912, or
(b)  application for a water approval is referred to it under section 171A of that Act,
the Commission of Inquiry must give at least 28 days notice, by advertisement published in the Gazette and in such newspapers as it thinks necessary, of its intention to hold a public hearing in connection with the application concerned and of the time and place at which that hearing is to be held.
(6)  The advertisement under subsection (5) may, but need not, form part of the advertisement referred to in section 120 (2).
(7)  In addition to considering any submissions that are made to it in the course of its inquiry, the Commission of Inquiry must consider:
(a)  the application for a water licence or for a water approval, and
(b)  any objection to the granting of a water licence, or a water approval, that has been referred to it under section 11A, or under section 171A, of the Water Act 1912.
(8)  In any report prepared by it under section 119 (6), the Commission of Inquiry must include findings and recommendations with respect to:
(a)  the question of whether or not a water licence or a water approval should be granted, and
(b)  the period, term, limitations and conditions of any such licence or approval.
(9)  The Commission of Inquiry must cause a copy of any such report to be given to the Water Administration Ministerial Corporation.
(10)  This section extends to any inquiry that had been begun by a Commission of Inquiry, but in respect of which a report had yet to be made under section 119 (6), as at the commencement of this section.
(11)  The regulations may make further provision for or with respect to the procedure of a Commission of Inquiry in relation to those aspects of its inquiry that relate to the granting of a water licence or a water approval.
(12)  In this section:

water approval means an approval under Part 8 of the Water Act 1912.

water licence means a licence under Division 3 of Part 2 of the Water Act 1912.

121   Settlement of disputes

(1)  Where a dispute arises between the Department or the Director, and a public authority, other than a council, with respect to:
(a)  the operation of any provision made by or under this Act, the regulations or an environmental planning instrument, or
(b)  the exercise of any function conferred or imposed upon the Department or the Director or upon the public authority by or under this Act, the regulations or an environmental planning instrument,
a party to the dispute may submit that dispute to the Premier for settlement in accordance with this section.
(1A)  Where a dispute arises between a public authority, other than a council, and another public authority, other than a council, with respect to:
(a)  the operation of any provision made by or under this Act, the regulations or an environmental planning instrument, or
(b)  the exercise of any function conferred or imposed upon any such public authority by or under this Act, the regulations or an environmental planning instrument,
a party to the dispute may submit that dispute to the Premier for settlement in accordance with this section.
(2)  Where a dispute arises between a public authority (including the Department and the Director) and a council with respect to:
(a)  the operation of any provision made by or under this Act, the regulations or an environmental planning instrument, or
(b)  the exercise of any function conferred or imposed upon the public authority or council by or under this Act, the regulations or an environmental planning instrument,
a party to the dispute may submit that dispute to the Minister for settlement in accordance with this section.
(3)  On the submission of a dispute to the Premier or the Minister under subsection (1), (1A) or (2), the Premier or Minister may appoint a Commissioner of Inquiry to hold an inquiry and make a report to the Premier or the Minister with respect to that dispute or may himself or herself hold an inquiry with respect to that dispute.
(4)  After the completion of an inquiry held under subsection (3) and, where a report is made to the Premier or the Minister under that subsection, after consideration by the Premier or the Minister of that report, the Premier or the Minister, as the case may be, may make such order with respect to the dispute, having regard to the public interest and to the circumstances of the case, as the Premier or the Minister thinks fit.
(5)  An order made by the Premier or the Minister under subsection (4) may direct the payment of any costs or expenses of or incidental to the holding of the inquiry.
(6)  The Department, the Director, a council or other public authority, as the case may be, shall comply with an order given under subsection (4), and shall, notwithstanding the provisions of any Act, be empowered to comply with any such order.
(7)  The provisions of any other Act relating to the settlement of disputes do not apply to the settlement of a dispute referred to in subsection (1), (1A) or (2).

Division 2A Orders

121A   Definition

In this Division:

order means an order under this Division.

121B   What orders may be given by a consent authority?

(1)  An order may be given to a person by:
(a)  a council, or
(b)  any other person who exercises functions as a consent authority, except in relation to complying development for which a complying development certificate has been issued,
to do or to refrain from doing a thing specified in the following Table if the circumstances specified opposite it in Column 2 of the Table exist and the person comes within the description opposite it in Column 3 of the Table.

Column 1

Column 2

Column 3

To do what?

In what circumstances?

To whom?

1

To cease using premises for a purpose specified in the order

(a)  Premises are being used for a purpose that is prohibited
(b)  Premises are being used for a purpose for which development consent is required but has not been obtained
(c)  Premises are being used in contravention of the conditions of a development consent

Owner of premises, or person by whom premises are being used for the purpose specified in the order

2

To demolish or remove a building

(a)  Building is erected without prior development consent of consent authority in a case where prior development consent is required or is erected without prior development consent of a consent authority and a prior construction certificate in a case where both prior development consent and a prior construction certificate are required
(b)  Building is or is likely to become a danger to the public
(c)  Building is so dilapidated as to be prejudicial to its occupants or to persons or property in the neighbourhood
(d)  Building is erected without prior approval of council, in a case where prior approval was required under the Local Government Act 1919 or the Local Government Act 1993 when the erection of the building commenced

Owner of building

3

Not to demolish, or to cease demolishing a building

(a)  Building is likely to be demolished without prior development consent of consent authority in a case where prior development consent is required
(b)  Building is being demolished without prior development consent of consent authority or otherwise than in accordance with prior development consent of consent authority in a case where prior development consent is required

Owner of building, person likely to demolish or person engaged in demolition

4

To repair or make structural alterations to a building

(a)  Building is or is likely to become a danger to the public
(b)  Building is so dilapidated as to be prejudicial to its occupants or to persons or property in the neighbourhood

Owner of building

5

To alter, obliterate, demolish or remove an advertisement and any associated advertising structure

(a)  The advertisement is unsightly, objectionable or injurious to the amenity of any natural landscape, foreshore, public reserve or public place at or near where the advertisement is displayed
(b)  The advertisement is displayed contrary to a provision made by or under this Act
(c)  The advertising structure is erected contrary to a provision made by or under this Act

The person who caused the advertisement or advertising structure to be erected or the owner or occupier of the premises on which the advertisement is displayed or the advertising structure is erected

6

To do or refrain from doing such things as are specified in the order so as to ensure or promote adequate fire safety or fire safety awareness

(a)  Provisions for fire safety or fire safety awareness are not adequate to prevent fire, suppress fire or prevent the spread of fire or ensure or promote the safety of persons in the event of fire
(b)  Maintenance or use of the premises constitutes a significant fire hazard

Owner of premises or, in the case of a place of shared accommodation, the owner or manager

7

To erect or install on or around a building such structures or appliances as are necessary to protect persons or property on or in a public place

(a)  Building is about to be erected
(b)  Building is situated in the immediate vicinity of a public place and is dangerous to persons or property on or in the public place
(c)  Building is about to be demolished
(d)  Work is about to be carried out
(e)  Work is about to be demolished

Owner or occupier of land

8

Not to conduct, or to cease conducting, an activity on premises (being an activity that is, or is capable of being, the subject of a development consent, whether or not the activity is the subject of a development consent)

The activity constitutes or is likely to constitute:

(a)  a life threatening hazard, or
(b)  a threat to public health or public safety,
      and is not regulated or controlled under any other Act by a public authority

Any person apparently engaged in promoting, conducting or carrying out the activity

9

To cease the use of a building

The use of the building:

(a)  is not consistent with its classification under this Act or the Local Government Act 1993, and
(b)  constitutes or is likely to constitute a life threatening hazard or a threat to public health or public safety, and
(c)  is not regulated or controlled under any other Act by a public authority

The owner or occupier of the building

10

To cease the use of premises or to evacuate premises

A person to whom order No 6 or 8 is given has failed to comply with the order

The person to whom order No 6 or 8 is given

11

To leave premises or not to enter premises

A person to whom order No 6 or 8 is given has failed to comply with the order

Any person

12

To do such things as are specified in the order to restore premises to the condition in which they were before building was unlawfully erected or before work was unlawfully carried out

(a)  Building has been unlawfully erected, and an order No 2 has been given requiring the building to be demolished or removed
(b)  Work has been unlawfully carried out

The owner of the premises, any person entitled to act on a development consent or complying development certificate or any person acting otherwise than in compliance with a development consent or complying development certificate

13

To do such things as are necessary to bring into compliance with relevant development standards any building or part of a building that has been unlawfully erected

Building has been unlawfully erected and does not comply with relevant development standards

The owner of the premises

14

To repair or remove a building

The building is situated wholly or partly in a public place

Owner or occupier of building

15

To comply with a development consent

The development consent is not being complied with

Person entitled to act on the development consent or person acting otherwise than in compliance with the development consent

16

To complete development that is subject to a development consent within such time (not being less than 12 months from the date of service of the order) as the consent authority considers reasonable, having regard to all relevant circumstances, including the nature of the development, and including, if the development is the subject of:

(a)  a proposed strata development contract referred to in the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986, or
(b)  a development contract registered with a community plan or precinct plan under the Community Land Development Act 1989,
      the proposals relating to the stages in which the development is to be effected

The development has been commenced within the period specified in section 95 (1) but has not been completed within that period

The owner of the land to which the development consent applies

17

To carry out works associated with a subdivision

There has been a failure to carry out the works in accordance with a development consent or an agreement made with the applicant for development consent

The person required to carry out the works

(2)  The regulations may prescribe acts and circumstances that are taken to be included in or excluded from any of the acts or circumstances specified in Column 1 or 2 of the Table to subsection (1).

121C   Giving orders to public authorities

(1)  An order under this Division may not be given in respect of the following land without the prior written consent of the Minister:
(a)  vacant Crown land,
(b)  a reserve within the meaning of Part 5 of the Crown Lands Act 1989,
(c)  a common within the meaning of the Commons Management Act 1989.
(2)  The Minister must not give consent in respect of vacant Crown land or a reserve within the meaning of Part 5 of the Crown Lands Act 1989 until after the Minister has consulted the Minister administering the Crown Lands Act 1989.

121D   Circumstances in which compliance with secs 121F–121K is required

Before giving an order, the person who gives the order must comply with sections 121F–121K, except for:
(a)  order No 8 in the Table to section 121B, or
(b)  an order given, and expressed to be given, in an emergency.

121E   Effect of compliance with secs 121F–121K

A person who complies with sections 121F–121K is taken to have observed the rules of natural justice (the rules of procedural fairness).

121F   Criteria to be considered before order is given

If a council has adopted criteria in a development control plan under section 72 on which it is to give an order, the council is required to take the criteria into consideration before giving the order.

121G   Orders that make or are likely to make residents homeless

(1)  If an order will or is likely to have the effect of making a resident homeless, the person who gives the order must consider whether the resident is able to arrange satisfactory alternative accommodation in the locality.
(2)  If the resident is not able to arrange satisfactory alternative accommodation in the locality, the person who gives the order must provide the resident with:
(a)  information as to the availability of satisfactory alternative accommodation in the locality, and
(b)  any other assistance that the person considers appropriate.

121H   Notice to be given of proposed order

(1) Notice to whom the order is to be given
Before giving an order, the person who gives the order must give notice to the person to whom the order is proposed to be given of the intention to give the order, the terms of the proposed order and the period proposed to be specified as the period within which the order is to be complied with.
(2)  The notice must also indicate that the person to whom the order is proposed to be given may make representations to the person who gives the order as to why the order should not be given or as to the terms of or period for compliance with the order.
(3)  The notice may provide that the representations are to be made to the person who gives the order or a nominated person on a nominated date, being a date that is reasonable in the circumstances of the case. In the case of a council this may be a specified committee of the council on a specified meeting date or to a specified employee of the council on or before a specified date.
(4) Notice to the other consent authorities
If a council proposes to give an order in relation to development for which another person is the consent authority, the council must give the other person notice of its intention to give the order.

121I   Making of representations

(1)  A person may, in accordance with a notice under section 121H, make representations concerning the proposed order.
(2)  For the purpose of making the representations, the person may be represented by a barrister, solicitor or agent.

121J   Hearing and consideration of representations

The person who gives the order or the nominated person is required to hear and to consider any representations made under section 121I.

121K   Procedure after hearing and consideration of representations

(1)  After hearing and considering any representations made concerning the proposed order, the person who gives the order or the nominated person may determine:
(a)  to give an order in accordance with the proposed order, or
(b)  to give an order in accordance with modifications made to the proposed order, or
(c)  not to give an order.
(2)  If the determination is to give an order in accordance with modifications made to the proposed order, the person who gives the order is not required to give notice under this Division of the proposed order as so modified.

121L   Reasons for orders to be given

(1)  A person who gives an order must give the person to whom the order is directed the reasons for the order.
(2)  The reasons may be given in the order or in a separate instrument.
(3)  The reasons must be given when the order is given, except in an emergency. In an emergency, the reasons may be given the next working day.

121M   Period for compliance with order

(1)  An order must specify a reasonable period within which the terms of the order are to be complied with, subject to this section.
(2)  An 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.

121N   Notice of right to appeal against order

A person who gives an order must, in giving a person notice of the order:
(a)  state that the person or any other person affected by the order may appeal to the Court against the order or a specified part of the order, and
(b)  specify the period within which an appeal may be made.

121O   Development consent not required to comply with order

A person who carries out work in compliance with a requirement of an order does not have to make an application under Part 4 for consent to carry out the work.

121P   Order may specify standards and work that will satisfy those standards

(1)  Instead of specifying the things the person to whom the order is given must do or refrain from doing, an order:
(a)  may specify the standard that the premises are required to meet, and
(b)  may indicate the nature of the work that, if carried out, would satisfy that standard.
(2)  Such an order may require the owner or occupier to prepare and submit to the person who gives the order, within the period (not exceeding 3 months) specified in the order, particulars of the work the owner or occupier considers necessary to make provision for such matters as may be so specified.

121Q   Compliance with order under sec 121P

(1)  A person complies with a requirement of an order under section 121P (2) by submitting to the person who gives the order such matters as the person would be required to submit if applying to a consent authority for development consent to carry out the work.
(2)  (Repealed)

121R   Consent authority’s response to submission of particulars of work by owner

(1)  A person who gives an order must, within 28 days after particulars of work are submitted to the person in accordance with section 121P (2):
(a)  accept the particulars without modification or with such modifications as the person thinks fit, or
(b)  reject the particulars.
(2)  If a person accepts the particulars of work without modification, the person must forthwith order the owner to carry out that work.
(3)  If a person accepts the particulars of work with modifications or rejects the particulars, or if an owner fails to submit particulars of work in accordance with section 121P (2), the person must:
(a)  prepare, within 3 months after the acceptance, rejection or failure, particulars of the work that the person considers necessary to make provision for the matters specified in the order given to the owner under section 121P, and
(b)  order the owner to carry out that work.
(4)  An order under this section is not invalid merely because of the failure of the person to accept or reject any particulars of work or prepare particulars of any work, as the case may be, within the period it is required to do so by this section.
(5)  A person may recover from an owner as a debt the person’s expenses of preparing particulars of work under this section.
(6)  Except for the purposes of section 121ZK (3), an order under this section forms part of the order under section 121B to which it relates.

121S   Orders affecting heritage items

(1)  This section applies to an item of the environmental heritage:
(a)  to which an interim heritage order or listing on the State Heritage Register under the Heritage Act 1977 applies or to which an order under section 136 of that Act applies, or
(b)  that is identified as such an item in an environmental planning instrument.
(2)  A person must not give an order under this Division in respect of an item of the environmental heritage to which this section applies until after the person has considered the impact of the order on the heritage significance of the item.
(3)  A person must not give an order under this Division in respect of an item of the environmental heritage to which subsection (1) (a) applies until after the person has given notice of the order to the Heritage Council and has considered any submissions duly made to the person by the Heritage Council.
(4)  The Heritage Council may, by instrument in writing served on a person, exempt the person from the requirements of subsection (3).
(5)  An exemption under subsection (4) may be given unconditionally or subject to such conditions as the Heritage Council determines, and may be varied or revoked by a subsequent instrument in writing made by the Heritage Council and served on the person.
(6)  The Heritage Council may make a submission:
(a)  within 28 days after it is given notice by the person, or
(b)  if, within 28 days after it is given notice by the person, the Heritage Council requests that a joint inspection of the item be made, within 28 days after the joint inspection is made.
(7)  If the Heritage Council notifies a person that it wishes to be consulted in connection with an order under section 121R, the person must include a statement to that effect in any order under section 121P.
(8)  This section does not apply to:
(a)  order No 3 in the Table to section 121B if given by a person in an emergency, or
(b)  order No 8, 10 or 11.

121T   Combined orders

A person who gives an order may include two or more orders in the same instrument.

121U   Giving and taking effect of orders

An order is given by serving a copy of the order on the person to whom it is addressed and takes effect from the time of service or a later time specified in the order.

121V   Orders may be given to two or more persons jointly

If appropriate in the circumstances of the case, an order may direct two or more people to do the thing specified in the order jointly.

121W   Notice in respect of land or building owned or occupied by more than one person

(1)  If land, including land on which a building is erected, is owned or occupied by more than one person:
(a)  an order in respect of the land or building is not invalid merely because it was not given to all of those owners or occupiers, and
(b)  any of those owners or occupiers may comply with such an order without affecting the liability of the other owners or occupiers to pay for or contribute towards the cost of complying with the order.
(2)  Nothing in this Division affects the right of an owner or occupier to recover from any other person all or any of the expenses incurred by the owner or occupier in complying with such an order.

121X   Notice of giving of order No 16

A person who gives an order must, on or as soon as practicable after the day on which the person gives an order in the terms of order No 16 in the Table to section 121B, send a copy of the order to:
(a)  such persons (if any) as are, in the opinion of the person, likely to be disadvantaged by the giving of the order, and
(b)  such persons (if any) as are referred to in the regulations for the purposes of this section.

121Y   Effect of order on successors in title

An order given to a person binds any person claiming through or under or in trust for or in succession to the person or who is a subsequent owner or occupier to the person, as if the order had been given to that person.

121Z   Compliance with orders by occupiers or managers

If an occupier or manager complies with an order, the occupier or manager may (unless the occupier or manager has otherwise agreed) deduct the cost of so complying (together with interest at the rate currently prescribed by the Supreme Court rules in respect of unpaid judgment debts) from any rent payable to the owner or may recover the cost (and that interest) from the owner as a debt in any court of competent jurisdiction.

121ZA   Occupier of land may be required to permit owner to carry out work

(1)  The person who gives an order may order the occupier of any land to permit the owner of the land to carry out such work on the land as is specified in the order (being work that is, in the person’s opinion, necessary to enable the requirements of this Act or the regulations, or of any order under section 121B, to be complied with).
(2)  An occupier of land on whom such an order is served must, within 2 days after the order is served, permit the owner to carry out the work specified in the order.
(3)  The owner of the land is not guilty of an offence arising from his or her failure to comply with the requirements of this Act or the regulations, or of any order under section 121B, if, while an order under this section is in force, the occupier of the land refuses to permit the owner to carry out the work specified in the order.
(4)  Subsection (3) applies only if the owner of the land satisfies the Court that the owner has, in good faith, tried to comply with the requirements concerned.

121ZB   Notice of fire safety orders to be given to Commissioner of NSW Fire Brigades

A person who gives an order must immediately give notice to the Commissioner of New South Wales Fire Brigades of an order given by the person in terms of order No 6 in the Table to section 121B.

121ZC   Powers of fire brigades

(1)  An authorised fire officer who inspects a building in accordance with section 118L may give:
(a)  order No 6 in the Table to section 121B if the order does not require the carrying out of any structural work to the premises concerned, or
(b)  order No 8 in the Table to section 121B if the premises concerned are a place of shared accommodation, or
(c)  order No 10 or 11 in the Table to section 121B if a person to whom an order under paragraph (a) or (b) is given has failed to comply with the order.
(2)  The provisions of:
(a)  sections 121D–121K, and
(b)  section 121Q,
do not apply to an order given in accordance with this section in circumstances which the authorised fire officer believes constitute an emergency or a serious risk to safety.
(3)  For the purpose of giving such an order, an authorised fire officer may exercise such of the powers of a person who gives an order under this Division as are specified in the fire officer’s authorisation under this section.
(4)  In exercising a power under this Division, an authorised fire officer may be accompanied and assisted by a police officer.
(5)  An authorised fire officer must forward a copy of an order given under this section to the relevant council.
(6)  In this section, a reference to an authorised fire officer, in relation to the exercise of a power under this Division, is a reference to:
(a)  the Commissioner of New South Wales Fire Brigades, or
(b)  a member of staff of New South Wales Fire Brigades who is for the time being authorised by the Minister administering the Fire Brigades Act 1989 to exercise that power, or
(c)  an officer or member of a fire brigade who is for the time being authorised by the Minister administering the Fire Brigades Act 1989 to exercise that power.

121ZD   Inspection reports by fire brigades

(1)  If the Commissioner of New South Wales Fire Brigades carries out an inspection of a building under section 118L, the Commissioner must furnish to the council of the area in which the building is located:
(a)  a report of the inspection, and
(b)  if of the opinion that adequate provision for fire safety has not been made concerning the building, such recommendations as to the carrying out of work or the provision of fire safety and fire-fighting equipment as the Commissioner considers appropriate.
(2)  A council must:
(a)  table any report and recommendations it receives under this section at the next meeting of the council, and
(b)  at any meeting of the council held within 28 days after receiving the report and recommendations or at the next meeting of the council held after the tabling of the report and recommendations, whichever is the later, determine whether it will exercise its powers to give order No 6 or 8 in the Table to section 121B.
(3)  A reference in subsection (2) to a meeting of a council does not include a reference to a special meeting of the council unless the special meeting is called for the purpose of tabling any report and recommendations or making any determination referred to in that subsection.
(4)  A council must give notice of a determination under this section to the Commissioner of New South Wales Fire Brigades.

121ZE   Details of orders and notices to be given to councils

(1)  A person, other than a council, who gives a notice or an order under this Division must immediately give a copy of the notice or order to the council.
(2)  The person, if requested by the council, must immediately inform the council whether or not the notice is outstanding or the order is in force and of any action proposed to be taken by the person in relation to the notice or order.

121ZF   Modification of orders

A person who gives an order may, at any time, modify an order it has given to a person (including a modification of the period specified for compliance with the order) if the person to whom the order is given agrees to that modification.

121ZG   Revocation of orders

(1)  An order given by a consent authority may be revoked by the consent authority at any time.
(2)  An order given by a council may be revoked by the council at any time.
(3)  An order given by an authorised fire officer (as referred to in section 121ZC (6)) may be revoked by an authorised fire officer at any time.

121ZH   Minister may revoke or modify a council’s order

(1)  The Minister may revoke or modify an order given by a council.
(2)  Notice of the revocation or modification must be given to the council and the person to whom the order was given.
(3)  The revocation or modification takes effect from the date specified in the Minister’s notice. The date may be the date on which the order was given by the council or a later date.
(4)  The Minister may prohibit a council from re-making an order that is revoked or modified under this section, totally or within such period or except in accordance with such terms and conditions (if any) as the Minister may specify.
(5)  Notice of a prohibition may be given in the same notice as notice of the revocation or modification of an order or in a separate notice.

121ZI   Limitation on Minister’s orders

The Minister must not take any action under section 121ZH that is inconsistent with, or has the effect of revoking or modifying, an order given by the council unless the Minister is of the opinion that:
(a)  it is necessary because of an emergency, or
(b)  it is necessary because of the existence or reasonable likelihood of a serious risk to health or safety, or
(c)  the order relates to a matter of State or regional significance, or
(d)  the order relates to a matter in which the intervention of the Minister is necessary in the public interest.

121ZJ   Failure to comply with order—carrying out of work by consent authority

(1)  If a person fails to comply with the terms of an order given to the person under this Division, the person who gave the order may do all such things as are necessary or convenient to give effect to the terms of the order, including the carrying out of any work required by the order.
(2)  If the person who gave the order gives effect to it by demolishing a building, the person:
(a)  may remove any materials concerned, and
(b)  may sell the materials, unless the person’s expenses in giving effect to the terms of the order are paid to the person within 14 days after removal of the materials.
(3)  If the proceeds of such a sale exceed the expenses incurred by the person who gave the order in relation to the demolition and the sale, the person:
(a)  may deduct out of the proceeds of the sale an amount equal to those expenses, and
(b)  must pay the surplus to the owner on demand.
(4)  If the proceeds of sale do not exceed those expenses, the person who gave the order:
(a)  may retain the proceeds, and
(b)  may recover the deficiency (if any) together with the person’s costs of recovery from the owner as a debt.
(5)  Materials removed that are not saleable may be destroyed or otherwise disposed of.
(6)  If work required by the order is carried out by the person who gave the order in relation to development for which an amount of security was provided and the amount of the security is more than the costs of carrying out the work, the person, after being recompensed from the security, must pay the surplus to the person entitled to it on demand.
(7)  Any expenses incurred under this section by a person who gave an order (less the proceeds, if any, of any sale under this section or the amount of any security provided in respect of development to which the order relates) together with all associated costs may be recovered by the person in any court of competent jurisdiction as a debt due to the person by the person required to comply with the order.
(8)  Nothing in subsection (3), (4), (6) or (7) affects the owner’s right to recover any amount from any lessee or other person liable for the expenses of repairs.
(9)  A reference in subsection (4), (6) or (7) to costs is a reference to costs incurred by the person who gave the order in seeking to recover the deficiency or expenses otherwise than by proceedings in a court, but nothing in this section prevents the person from receiving costs as between party and party in respect of those proceedings.
(10)  The person who gave the order may exercise the person’s functions under this section irrespective of whether the person required to comply with the order has been prosecuted for an offence against this Act.
(11)  In any proceedings before the Land and Environment Court that are brought by a person who gave an order against another person as a result of the other person’s failure to comply with the order, the Court may, at any stage of the proceedings, order the person who gave the order to exercise the person’s functions under this section. Having made such an order, the Court may continue to hear and determine the proceedings or may dismiss the proceedings.
(12)  If the Minister or the Director gave the order, the Minister’s or Director’s functions under this section may be exercised by the corporation.

121ZK   Appeals concerning orders

(1)  A person on whom an order is served may appeal against the order to the Court.
(2)  However, a person may not appeal against order No 6 in the Table to section 121B if the order is given by an authorised fire officer (as referred to in section 121ZC (6)).
(3)  The appeal must be made within 28 days after the service of the order on the person or, if an order is given under section 121R, within 28 days after the service of the order given under section 121R on the person. The person may make an appeal within the later period whether or not the person has made an appeal within the earlier period.
(4)  On hearing an appeal, the Court may:
(a)  revoke the order, or
(b)  modify the order, or
(c)  substitute for the order any other order that the person who gave the order could have made, or
(d)  find that the order is sufficiently complied with, or
(e)  make such order with respect to compliance with the order as the Court thinks fit, or
(f)  make any other order with respect to the order as the Court thinks fit.

121ZL   Awarding of compensation concerning orders

(1)  The Land and Environment Court, on the hearing of an appeal or otherwise, has a discretion to award compensation to a person on whom an order is served for any expense incurred by the person as a consequence of the order, including the cost of any investigative work or reinstatement carried out by the person as a consequence of the order, but only if the person satisfies the Court that the giving of the order was unsubstantiated or the terms of the order were unreasonable.
(2)  A claim for compensation may not be made more than 28 days after the date on which the Court gives its decision on the appeal or more than 3 months after the date of the order if an appeal is not made against the order.
(3)  Compensation under this section is to be awarded against the person who gave the order.

121ZM   Appeals concerning particulars of work submitted to person who gave order

(1)  A person may appeal to the Court against the failure of a person who gave an order:
(a)  to accept or reject, under section 121R (1), particulars of work submitted to the person in accordance with section 121P (2), or
(b)  to prepare, under section 121R (3) (a), particulars of the work that the person considers necessary to make provision for the matters specified in an order given to an owner under section 121P.
(2)  The appeal must be made within 28 days after the period limited under section 121R (1) or (3) (a) for compliance by the person who gave the order.
(3)  On hearing an appeal, the Court may:
(a)  make any order that the person who gave the order could have made, or
(b)  order the person to perform the person’s functions under section 121R (1) or (3) (a) within such time as is specified in the order.

121ZN   Effect of appeal on order

If an appeal is duly made to the Land and Environment Court against an order, the appeal does not effect a stay of the order.

121ZO   Court’s powers not limited by this Division

This Division does not limit a power of the Land and Environment Court under the Land and Environment Court Act 1979.

121ZP   Certificate as to orders

(1)  A person may apply to a council for a certificate as to whether there are:
(a)  any outstanding notices issued under section 121H,
(b)  any orders under this Division in force,
in respect of any land within the council’s area.
(2)  The application must be in the form determined by the council and must be accompanied by the fee determined by the council under the Local Government Act 1993.
(3)  The council is to issue a certificate to the applicant stating:
(a)  whether or not a notice is outstanding or an order is in force in respect of the land as at the date of the certificate and, if so, the terms of any such notice or order, and
(b)  any action proposed to be taken or that may be taken by the council or any other person in relation to any such notice or order.
(4)  The production of the certificate is taken for all purposes to be conclusive proof of the existence or otherwise of any outstanding notices and any orders in force.

Division 3 Orders of the Court

122   Definitions

In this Division:
(a)  a reference to a breach of this Act is a reference to:
(i)  a contravention of or failure to comply with this Act, and
(ii)  a threatened or an apprehended contravention of or a threatened or apprehended failure to comply with this Act, and
(b)  a reference to this Act includes a reference to the following:
(i)  the regulations,
(ii)  an environmental planning instrument,
(iii)  a consent granted under this Act, including a condition subject to which a consent is granted,
(iv)  a complying development certificate, including a condition subject to which a complying development certificate is granted,
(v)  an order under Division 2A.

123   Restraint etc of breaches of this Act

(1)  Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach.
(2)  Proceedings under this section may be brought by a person on his or her own behalf or on behalf of himself or herself and on behalf of other persons (with their consent), or a body corporate or unincorporated (with the consent of its committee or other controlling or governing body), having like or common interests in those proceedings.
(3)  Any person on whose behalf proceedings are brought is entitled to contribute to or provide for the payment of the legal costs and expenses incurred by the person bringing the proceedings.
(4)  Proceedings under this section may not be brought in connection with development, or an activity, carried out by, for or on behalf of the Olympic Co-ordination Authority in accordance with the Olympic Co-ordination Authority Act 1995.

124   Orders of the Court

(1)  Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach.
(2)  Without limiting the powers of the Court under subsection (1), an order made under that subsection may:
(a)  where the breach of this Act comprises a use of any building, work or land—restrain that use,
(b)  where the breach of this Act comprises the erection of a building or the carrying out of a work—require the demolition or removal of that building or work, or
(c)  where the breach of this Act has the effect of altering the condition or state of any building, work or land—require the reinstatement, so far as is practicable, of that building, work or land to the condition or state the building, work or land was in immediately before the breach was committed.
(3)  Where a breach of this Act would not have been committed but for the failure to obtain a consent under Part 4, the Court, upon application being made by the defendant, may:
(a)  adjourn the proceedings to enable a development application to be made under Part 4 to obtain that consent, and
(b)  in its discretion, by interlocutory order, restrain the continuance of the commission of the breach while the proceedings are adjourned.
(4)  The functions of the Court under this Division are in addition to and not in derogation from any other functions of the Court.
(5)  Nothing in this section affects the provisions of Division 3 of Part 3 of the Land and Environment Court Act 1979.

Division 4 Offences

125   Offences against this Act and the regulations

(1)  Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Director, a council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act.
(2)  Where any matter or thing is by or under the regulations directed or forbidden to be done, or where the Minister, the Director, a council or any other person is authorised by the regulations to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against the regulations.
(3)  Nothing in subsection (1) or (2) applies in respect of a direction given under this Act by the Minister to a public authority.
(4)  It is a sufficient defence to a prosecution for an offence that arises from the failure to comply with an order under Division 2A if the defendant satisfies the court that the defendant was unaware of the fact that the matter in respect of which the offence arose was the subject of an order.

126   Penalties

(1)  A person guilty of an offence against this Act shall, for every such offence, be liable to the penalty expressly imposed and if no penalty is so imposed to a penalty not exceeding 10,000 penalty units and to a further daily penalty not exceeding 1,000 penalty units.
(2)  A person guilty of an offence against the regulations is liable to a penalty not exceeding 1,000 penalty units.
(3)  Where a person is guilty of an offence involving the destruction of or damage to a tree or vegetation, the court dealing with the offence may, in addition to or in substitution for any pecuniary penalty imposed or liable to be imposed, direct that person:
(a)  to plant new trees and vegetation and maintain those trees and vegetation to a mature growth, and
(b)  to provide security for the performance of any obligation imposed under paragraph (a).

127   Proceedings for offences

(1)  Proceedings for an offence against this Act may be taken before a Local Court constituted by a Magistrate sitting alone or before the Court in its summary jurisdiction.
(2)  Proceedings for an offence against the regulations may be taken before a Local Court constituted by a Magistrate sitting alone.
(3)  If proceedings in respect of an offence against this Act are brought in a Local Court constituted by a Magistrate, the maximum monetary penalty that the court may impose in respect of the offence is, notwithstanding any other provisions of this Act, 1,000 penalty units or the maximum monetary penalty provided by this Act in respect of the offence, whichever is the lesser.
(4)  If proceedings in respect of an offence against this Act are brought in the Court in its summary jurisdiction, the Court may impose a penalty not exceeding the maximum penalty provided by this Act in respect of the offence.
(5)  Proceedings in the Court in its summary jurisdiction in respect of an offence against this Act may be commenced not later than 6 months after the offence was alleged to be committed, except as provided by subsection (6).
(6)  Proceedings for the following offences may be instituted at any time within the period specified in relation to the offence:
(a)  carrying out development, other than complying development, for which development consent is required without obtaining development consent—12 months after the offence is alleged to have been committed,
(b)  carrying out complying development without obtaining a complying development certificate—12 months after the offence is alleged to have been committed.
(7)  A person shall not be convicted of an offence against this Act where the matter constituting the offence is, at the date upon which the conviction would, but for this subsection, be made:
(a)  the subject of proceedings under section 123, which proceedings have not been concluded, or
(b)  the subject of an order made under section 124.
(8)  Nothing in subsection (7) precludes a conviction being made where the proceedings referred to in paragraph (a) of that subsection are concluded otherwise than by the making of an order under section 124.

127A   Penalty notices for certain offences

(1)  An authorised person may serve a penalty notice on a person if it appears to the authorised person that the person has committed an offence under this Act, being an offence prescribed by the regulations.
(2)  A penalty notice is a notice to the effect that, if the person served does not wish to have the matter determined by a court, the person may pay, within the time and to the person specified in the notice, the amount of penalty prescribed by the regulations for the offence if dealt with under this section.
(3)  A penalty notice:
(a)  may be served personally or by post, or
(b)  if it relates to an offence involving the use of a vehicle, may be addressed to the owner (without naming the owner or stating the owner’s address) and may be served by leaving it on or attaching it to the vehicle.
(4)  If the amount of penalty prescribed for an alleged offence is paid under this section, no person is liable to any further proceedings for the alleged offence.
(5)  Payment under this section is not regarded as an admission of liability for the purpose of, and does not in any way affect or prejudice, any civil claim, action or proceeding arising out of the same occurrence.
(6)  The regulations may:
(a)  prescribe an offence for the purposes of this section by specifying the offence or by referring to the provision creating the offence, and
(b)  prescribe the amount of penalty payable for the offence if dealt with under this section, and
(c)  prescribe different amounts of penalties for different offences or classes of offences.
(7)  The amount of a penalty prescribed under this section for an offence must not exceed the maximum amount of penalty which could be imposed for the offence by a court.
(8)  This section does not limit the operation of any other provision of, or made under, this or any other Act relating to proceedings which may be taken in respect of offences.
(9)  In this section:

authorised person means:

(a)  a person, including an employee of a council, generally or specially authorised by a council to be an authorised person for the purposes of this section, or
(b)  a person, including a person employed within the Department, generally or specially authorised by the Director to be an authorised person for the purposes of this section, or
(c)  a person generally or specially authorised by the Minister to be an authorised person for the purposes of this section, or
(d)  a police officer.

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