Environmental Planning and Assessment Act 1979 No 203
Historical version for 1 October 2010 to 31 December 2010 (accessed 26 November 2014 at 08:55) 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116   (Repealed)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 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 planning proposal 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, and
(c)  to provide the Minister, in the manner and at the times specified in the direction, with reports, containing such information as the Minister may direct, on the council’s performance in relation to planning and development matters.
(2A)  A direction under subsection (2):
(a)  may be given to a particular council or to councils generally, and
(b)  may require the inclusion in planning proposals of provisions to achieve or give effect to particular principles, aims, objectives or policies, and
(c)  may require planning proposals to be strictly consistent or substantially consistent with the terms of the direction (or provide for the circumstances in which an inconsistency can be justified).

Any such direction may be given to councils generally by its publication in the Gazette or on a website maintained by the Department (or both).

(2B)  A reference to a council in subsections (2) and (2A) includes a reference to a relevant planning authority under Division 4 of Part 3 that is not a council.
(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.
(4A)  Before giving a direction under subsection (2) (c), the Minister is to consult with the Local Government and Shires Associations of New South Wales and any other industry organisation the Minister considers to be relevant, in relation to the information that the Minister is proposing to seek. This requirement is in addition to the requirement under subsection (4).
(5)  A local environmental plan (or any planning proposal or purported plan) cannot in any court proceedings be challenged, reviewed, called into question, prevented from being made or otherwise affected on the basis of anything in a direction under subsection (1) or (2).

117A   Inquiry into councils by Director-General of Department of Premier and Cabinet

(1)  The Director-General of the Department of Planning may request the Director-General of the Department of Premier and Cabinet to authorise an investigation under section 430 of the Local Government Act 1993 into any aspect of a council’s performance of its functions under this Act that requires investigation.
(2)  The Director-General of the Department of Premier and Cabinet is to provide the Director-General of the Department of Planning with advice on the outcome of any such request or investigation.

117B   Action that may be taken against council following investigation

(1)  If the Building Professionals Board has made its final report of the results of an investigation under section 45 of the Building Professionals Act 2005 in relation to a council publicly available and is of the opinion that the council has not taken appropriate action about a matter investigated, the Board may:
(a)  make recommendations to the Director-General of the Department of Local Government as to the measures that it considers appropriate to be taken in relation to the matter, or
(b)  recommend to the Minister that the Minister take action against the council under this section.
Note. Section 45 of the Building Professionals Act 2005 enables the Building Professionals Board to investigate the work and activities of a council in its capacity as a certifying authority.
(2)  The Minister may, on the recommendation of the Board under this section and following consultation with the Minister administering the Local Government Act 1993, make an order suspending a council’s authority to exercise all or specified functions of a certifying authority.
(3)  A council must comply with an order under this section that relates to the council.
(4)  Despite any other provision of this Act, a council that is the subject of an order must not exercise any function of a certifying authority while the council’s authority to exercise that function is suspended by operation of the order.
(5)  An order does not operate to suspend a council’s authority to exercise the functions of a certifying authority in relation to any matter being dealt with by the council as a certifying authority before the commencement of the order, unless the order provides otherwise.
(6)  An order may contain provisions of a savings or transitional nature consequent on the suspension contained in the order.
(7)  Without limiting subsection (6), an order may contain provisions for or with respect to the following:
(a)  the way in which any pending matter being dealt with by the relevant council as a certifying authority is to be completed, including, for example, enabling the council to complete any such matter or providing for the matter to be completed by an accredited certifier,
(b)  directing any fee paid to the council to act as a certifying authority in relation to any pending matter to be refunded,
(c)  directing the council to pay any fees required to be paid to an accredited certifier to complete any pending matter being dealt with by the council as a certifying authority.
(8)  The Minister must revoke an order if satisfied that the relevant council has implemented measures to address the matters that led to the making of the order.
(9)  Nothing prevents the Minister from amending an order made under this section by another order, including amending the first order to change the functions of a certifying authority to which the first order relates.
(10)  An order under this section must be in writing and published in the Gazette and takes effect on the day on which it is published in the Gazette or on a later day specified in the order.
(11)  Section 109E (1AA) does not require a council to accept an appointment as principal certifying authority if the council would contravene subsection (4) by accepting the appointment.
(12)  An order under this section may be made whether or not any action has been taken by the Minister under section 118 in relation to the exercise of all or any of the functions of the council concerned.

Division 1AA Planning administrators and panels

117C   Definitions

In this Division:

planning administrator means a person appointed as a planning administrator under section 118.

regional panel means a joint regional planning panel.

118   Appointment of planning administrator, planning assessment panel or regional panel

(1)  The Minister may appoint a planning administrator, a planning assessment panel or a regional panel (or all of them) to exercise functions of a council if:
(a)  the Minister is of the opinion that the council has failed to comply with its obligations under the planning legislation, or
(b)  the Minister is of the opinion that the performance of a council in dealing with planning and development matters (or any particular class of such matters) is unsatisfactory because of the manner in which the council has dealt with those matters, the time taken or in any other respect, or
(c)  the council agrees to the appointment, or
(d)  a report referred to in section 74C of the Independent Commission Against Corruption Act 1988 recommends that consideration be given to the appointment because of serious corrupt conduct by any of the councillors in connection with the exercise or purported exercise of functions conferred or imposed on the council by or under this Act.
(2)  A planning administrator may be appointed to exercise all or any particular function or class of functions of the council under this Act.
(3)  A planning assessment panel or regional panel may be appointed to exercise only all or any particular function or class of functions of the council:
(a)  as a consent authority, or
(b)  in relation to making of environmental planning instruments under Part 3 or under Division 1 of Part 2 of Chapter 6 of the Local Government Act 1993, or
(c)  in relation to the preparation, making and approval of development control plans, or
(d)  in relation to the preparation and approval of contributions plans.
(4)  A planning assessment panel or regional panel may not exercise the functions of a council for a continuous period of more than 5 years.
(5)  If a planning assessment panel exercises the functions of a council for a continuous period of more than 2 years, the Minister is, as soon as practicable after 2 years after the date on which the planning assessment panel was appointed, to conduct a review of the appointment and functions of the planning assessment panel.
(6)  A review under subsection (5) is to be conducted by the Minister in consultation with the Minister for Local Government, the Local Government and Shires Associations of New South Wales and any other industry organisation that the Minister considers to be relevant.
(7)  A planning administrator or planning assessment panel is to be appointed by order of the Minister published in the Gazette.
(7A)  Functions are to be conferred on a regional panel under this section by order of the Minister published in the Gazette.
(7B)  Before appointing a planning administrator or planning assessment panel, or conferring functions under this section on a regional panel, the Minister must notify the council concerned in writing of the proposed action (including the reasons for the proposed action) and request the council to show cause why the action should not be taken.
(7C)  The Minister must consider any written submissions made by the council within 21 days of notice being given under subsection (7B) and must not take action under this section earlier than 21 days after the notice is given.
(8)  Before appointing a planning administrator or a planning assessment panel, or conferring functions on a regional panel under this section, the Minister is to obtain the concurrence of the Minister for Local Government.
(9)  The Minister may appoint a planning administrator or a planning assessment panel, or confer functions on a regional panel under this section, for a reason set out in subsection (1) (b) only if the Minister has, by order published in the Gazette, provided heads of consideration for the exercise of power under subsection (1) (b), and has taken any of those heads of consideration that are relevant into account.
Editorial note. For orders under this subsection, see the Historical notes at the end of this Act.
(10)  The Minister may take action under this section in the circumstances specified in subsection (1) (d) without conducting an inquiry but, in that case, the Minister is to inquire into the matter as soon as practicable with a view to confirming or revoking the appointment.
(11)  The Minister must, as soon as reasonably practicable after appointing a planning administrator or a planning assessment panel, or conferring functions on a regional panel under this section, make the reasons for that appointment publicly available.
(12)  In this section:

failure to comply with obligations under the planning legislation includes:

(a)  a failure to carry into effect or enforce the provisions of this Act, an environmental planning instrument or a direction under section 55, 94E or 117, or
(b)  a failure to comply with the requirements of the staged repeal program under section 33B with respect to the preparation or making of a replacement local environmental plan, or
(c)  without limiting paragraph (a), a failure to comply with a determination under section 56, or
(d)  without limiting paragraph (a), a failure to provide access to and the use of staff and facilities to the Planning Assessment Commission, a joint regional planning panel or a planning arbitrator as referred to in section 23N (1).

serious corrupt conduct means corrupt conduct (within the meaning of the Independent Commission Against Corruption Act 1988) that may constitute a serious indictable offence, being conduct in connection with the exercise or purported exercise of the functions of a councillor.

118AA   Planning assessment panels

(1)  The bodies listed in Part 1 of Schedule 5B from time to time are established by this Act as planning assessment panels.
(2)  A planning assessment panel is a body corporate with the corporate name specified in Part 1 of Schedule 5B.
(3)  A planning assessment panel is a statutory body representing the Crown and has the status, privileges and immunities of the Crown.
(4)  A planning assessment panel is to consist of such members (being not less than 3 and not more than 5) as are appointed by the Minister.
(5)  The members of the planning assessment panel are to be persons who together have, in the opinion of the Minister, relevant skills and knowledge in planning and development matters.
(6)  The Minister is to appoint a member of the planning assessment panel as the chairperson of the planning assessment panel.
(7)  Part 2 of Schedule 5B has effect with respect to the members of planning assessment panels.
(7A)  The regulations may make provision for or with respect to the procedures of planning assessment panels.
(8)  A planning assessment panel is, in the exercise of its functions, subject to the control and direction of the Minister.
(9)  A planning assessment panel is to provide the Minister with such information and material as the Minister may require in relation to its policies, programs and procedures.
(10)  Despite subsection (8), a planning assessment panel is not subject to the control of the Minister in determining a development application.
(11)  The Minister may, by order published on the NSW legislation website, amend Part 1 of Schedule 5B for the purpose of:
(a)  establishing a planning assessment panel, or
(b)  abolishing a planning assessment panel, or
(c)  changing the name of a planning assessment panel.
(12)  Any such order may contain savings and transitional provisions.

118AB   Functions of planning administrators or panels

(1)  During the period of appointment, the planning administrator, planning assessment panel or regional panel:
(a)  is to exercise the functions of the council under this Act that are specified in the order of appointment, and
(b)  is, in the exercise of those functions, taken to be the council, and
(c)  is to exercise those functions to the exclusion of the council except to the extent that the order of appointment provides otherwise, and
(d)  is, in the exercise of those functions, to give priority to particular functions to the extent that the order of appointment so provides.
(2)  Despite subsection (1), a planning administrator or planning assessment panel is not to enter into contracts in the exercise of the planning administrator’s or panel’s functions except:
(a)  with the consent of the Minister and the concurrence of the Minister for Local Government, or
(b)  in the case of contracts for the appointment of staff—with the authority conferred by a regulation made under section 118AF.
(3)  Subsection (1) has effect even if the appointment of the planning administrator or panel is subsequently found not to have been validly made.

118AC   Costs of planning administrator or planning assessment panel

(1)  A council, the functions of which are exercised by a planning administrator or planning assessment panel, is to pay to the Director-General out of the council’s consolidated fund, the remuneration and costs and expenses of the planning administrator or planning assessment panel.
(2)  The Minister may do either or both of the following:
(a)  exempt a council from payment of all or part of the remuneration and costs and expenses of the planning administrator or planning assessment panel,
(b)  resolve any dispute as to the amount of any such remuneration, costs or expenses.

118AD   Council to assist planning administrator or panel

(1)  A council must, if directed to do so by the Minister, provide any of the following with such staff, facilities and documents as are specified in the direction:
(a)  a planning administrator, planning assessment panel or regional panel appointed to exercise functions of the council,
(b)  a staff member of any such planning administrator, planning assessment panel or regional panel,
(c)  a member of any such panel.
(2)  A member of a council, or a member of staff of a council, must not obstruct any of the persons in subsection (1) (a)–(c) in the exercise of his or her functions under this Division.

Maximum penalty: 10 penalty units.

(2A)  The general manager of a council must carry out any reasonable direction of the planning administrator or planning assessment panel relating to functions of the council being exercised by the planning administrator or panel.

Maximum penalty: 10 penalty units.

(3)  Before giving a direction under subsection (1), the Minister is to consult with the Minister for Local Government.

118AE   Annual report on activities of planning administrators and planning assessment panels

The Director-General is, in the annual report of the Department, to report on the activities of planning administrators and planning assessment panels during the period covered by the annual report, including:
(a)  the financial activities of planning administrators and planning assessment panels, and
(b)  the exercise of council functions by planning administrators and planning assessment panels.

118AF   Regulations

The regulations may make provision for or with respect to the appointment and functions of a planning administrator, planning assessment panel or regional panel and, in particular, for or with respect to:
(a)  the accommodation, if any, to be provided at the offices of the council for the planning administrator, planning assessment panel or regional panel and any other persons assisting the planning administrator, planning assessment panel or regional panel in the exercise of the planning administrator’s, planning assessment panel’s or regional panel’s functions, and
(b)  the appointment of staff by the planning administrator, planning assessment panel or regional panel to assist in the exercise of the planning administrator’s, planning assessment panel’s or regional panel’s functions.

118AG   Protection for exercise of certain functions by Minister

(1)  This section applies to any function (a protected function) conferred or imposed on the Minister (including a delegate of the Minister) relating to the appointment of a planning administrator or planning assessment panel, or the conferral of functions on a regional panel, under this Division.
(2)  The exercise by the Minister of any protected function may not be:
(a)  challenged, reviewed, quashed or called into question before any court of law or administrative review body in any proceedings, or
(b)  restrained, removed or otherwise affected by any proceedings.
(3)  Without limiting subsection (2), that subsection applies whether or not the proceedings relate to any question involving compliance or non-compliance, by the Minister (including a delegate of the Minister), with the provisions of this Division or the rules of natural justice (procedural fairness).
(4)  Accordingly, no court of law or administrative review body has jurisdiction or power to consider any question involving compliance or non-compliance, by the Minister (including a delegate of the Minister), with those provisions or with those rules so far as they apply to the exercise of any protected function.
(5)  This section has effect despite any provision of this Act or other legislation or any other law (whether written or unwritten).
(6)  In this section:

exercise of functions includes:

(a)  the purported exercise of functions, and
(b)  the non-exercise or improper exercise of functions, and
(c)  the proposed, apprehended or threatened exercise of functions.

proceedings includes:

(a)  proceedings for an order under section 124, and
(b)  proceedings for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, and
(c)  without limiting paragraph (b), proceedings in the exercise of the inherent jurisdiction of the Supreme Court or the jurisdiction conferred by section 23 of the Supreme Court Act 1970.

Division 1A Local enforcement 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), (2A)  (Repealed)
(2B)  The principal certifying authority for any development may enter the land on which the development is carried out, including any building or work being erected on the land, for the purpose of exercising his or her functions under this Act and the regulations as the principal certifying authority with respect to the development.
(2C)  Subject to the regulations, this Division (other than section 118BA) applies to a principal certifying authority referred to in subsection (2B) as if his or her functions as a principal certifying authority were the functions of a council and as if he or she had been authorised by a council to enter premises for the purpose of exercising those functions.
(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 to exercise the council’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.

118BA   Power of authorised persons to require answers and record evidence

(1)  A person authorised to enter premises under this Division (an authorised person) may require an accredited certifier, a person carrying out building work or subdivision work or any other person whom the authorised person suspects on reasonable grounds to have knowledge of matters in respect of which information is reasonably required to enable the council concerned to exercise its functions under this Act to answer questions in relation to those matters.
(2)  An authorised person may require a corporation to nominate a director or officer of the corporation who is authorised to represent the corporation for the purposes of answering questions under this section.
(3)  An authorised person may, by notice in writing, require a person referred to in subsection (1) to attend at a specified place and time to answer questions under this section if attendance at that place is reasonably required in order that the questions can be properly put and answered.
(4)  The place and time at which a person may be required to attend under subsection (3) is to be:
(a)  a place and time nominated by the person, or
(b)  if the place and time nominated is not reasonable in the circumstances or a place and time is not nominated by the person, a place and time nominated by the authorised person that is reasonable in the circumstances.
(5)  An authorised person may cause any questions and answers to questions given under this section to be recorded if the authorised person has informed the person who is to be questioned that the record is to be made.
(6)  A record may be made using sound recording apparatus or audio visual apparatus, or any other method determined by the authorised person.
(7)  A copy of any such record must be provided by the authorised person to the person who is questioned as soon as practicable after it is made.
(8)  A record may be made under this section despite the provisions of any other law.

118C   Notice of entry

(1)  Before a person authorised to enter premises under this Division does so, the council 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 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 in accordance with this section.
(2)  The authority of the council:
(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.
(2)  The council must give notice of the entry to such persons or authorities as appear to the council 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 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 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 council requires any work to be carried out on or in the premises, the council may recover the reasonable costs of the entry and inspection from the owner or occupier of the premises.

118H   Compensation

A council must pay compensation for any damage caused by any person authorised by the council 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 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 for the purposes of this section may apply to an authorised officer 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 officer 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)  Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to a search warrant issued under this section.
(4)  Without limiting the generality of section 71 of the Law Enforcement (Powers and Responsibilities) Act 2002, 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 officer has the same meaning as it has in the Law Enforcement (Powers and Responsibilities) Act 2002.

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 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

(1)  A person must not:
(a)  without reasonable excuse, refuse or fail to comply with any notice given or requirement made, or to answer any question asked, by an authorised person under this Division, or
(b)  wilfully delay, hinder or obstruct an authorised person in the exercise of the authorised person’s functions under this Division, or
(c)  furnish an authorised person with information that the person knows (or ought reasonably to know) is false or misleading in a material particular.

Maximum penalty: 20 penalty units.

(2)  Section 122U applies to and in respect of:
(a)  an offence under subsection (1) of failing or refusing to comply with a requirement to furnish information or answer a question under this Division in the same way as it applies to an offence of failing or refusing to comply with a requirement to furnish information or answer a question under Division 2C, and
(b)  a requirement to furnish information or answer a question under this Division in the same way as it applies to a requirement to furnish information or answer a question under Division 2C.

Division 1B

118O–118R(Repealed)

Division 2 Settlement of disputes

119–120A   (Repealed)

121   Settlement of disputes

(1)  Where a dispute arises between the Department or the Director-General, 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-General 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-General) 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 member of the Planning Assessment Commission 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-General, 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   Definitions

In this Division:

consent authority includes, in the case of a project to which Part 3A applies, the Minister.

development consent includes, in the case of a project to which Part 3A applies, an approval under that Part to carry out the project.

order means an order under this Division.

121B   Orders that may be given by consent authority or by Minister etc

(1)  An order may be given to a person by:
(aa)  the Minister or the Director-General (but only in connection with a project to which Part 3A applies or in connection with development for which the Minister or Director-General is or has been the consent authority), or
(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 to be displayed 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

13A

(Repealed)  

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

18

To do or refrain from doing any act to remedy or restrain a breach of Part 3A or of an approval under that Part

The breach has occurred, is occurring or is likely to occur

The person who caused, is causing or is likely to cause the breach, or the person entitled to act on the approval

19

To cease carrying out specified building work or subdivision work

(a)  Building work or subdivision work is being carried out in contravention of this Act
(b)  Building work or subdivision work is being carried out that affects the support of adjoining premises

Owner of land or any person apparently engaged in carrying out the building work or subdivision work

(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).
(3)  An order under item 18 of the Table to subsection (1) may only be given by the Minister or the Director-General.

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 sections 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 or No 19 in the Table to section 121B (1), or
(b)  an order given, and expressed to be given, in an emergency, or
(c)  an order given by the Minister or the Director-General in connection with a project to which Part 3A applies.

121E   Effect of compliance with sections 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 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.
(5) Notice to principal certifying authority
If a council proposes to give an order in relation to building work or subdivision work for which the council is not the principal certifying authority, the council must give the principal certifying authority 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 an Australian legal practitioner 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 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 or approval 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 3A for approval or 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) but, except in the case of an order given by the Minister or the Director-General, only if the person to whom the order is given agrees to that modification.

121ZG   Revocation of orders

(1A)  An order given by the Minister may be revoked by the Minister at any time, and an order given by the Director-General may be revoked by the Minister or the Director-General at any time.
(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-General gave the order, the Minister’s or Director-General’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.

121ZQ   Continuing effect of orders

(1)  An order that specifies a time by which, or period within which, the order must be complied with continues to have effect until the order is complied with even though the time has passed or the period has expired.
(2)  This section does not apply to the extent that any requirement under an order is revoked.

121ZR   Special provisions relating to brothel closure orders

(1) Definitions
In this section and section 121ZS:

brothel closure order means an order No 1 or No 15 under the Table to section 121B (1) to cease using premises as a brothel or in respect of the use of premises as a brothel, whether or not the order also prohibits the premises from being used for, or relates to the use of the premises for, any related sex uses.

related sex uses means the following:

(a)  the use of premises for the provision of sexual acts or sexual services in exchange for payment,
(b)  the use of premises for the provision of massage services (other than genuine remedial or therapeutic massage services) in exchange for payment,
(c)  the use of premises for the provision of adult entertainment involving nudity, indecent acts or sexual activity if the entertainment is provided in exchange for payment or if the entertainment is ancillary to the provision of other goods or services.

(2) Natural justice requirements not applicable
A person who gives a brothel closure order is not required to comply with sections 121G–121K.
Note. Sections 121G–121K provide, among other things, for notice of proposed orders. Sections 121L and 121N apply to brothel closure orders and provide for reasons for an order to be given to the person to whom an order is given as well as information about appeal rights.
(3) Additional prohibitions may be included
A brothel closure order may also prohibit the use of the premises for specified related sex uses, if the use of the premises for the specified uses is a prohibited development or a development for which development consent is required but has not been obtained.
(4) Additional persons to whom order may be given
In addition to any other person to whom a brothel closure order may be given, a brothel closure order may be given to any person apparently in control of or managing, or assisting in the control or management of, the brothel.
(5) Period for compliance
A brothel closure order must specify a period of not less than 5 working days within which the order must be complied with.
Note. An appeal against a brothel closure order may be made under section 121ZK.
(6) Additional persons or bodies that may make brothel closure orders
In addition to the persons specified by section 121B, a brothel closure order may be made by a person or body exercising planning or regulatory functions in respect of the area in which the premises are situated and authorised by the Minister to make brothel closure orders.
(7) Defences
It is a sufficient defence to a prosecution for an offence that arises from a failure to comply with a brothel closure order if the defendant satisfies the court that:
(a)  if the defendant is the owner of the premises, the defendant has taken all reasonable steps to evict the persons operating the brothel or using the premises for the specified related sex uses, or
(b)  in all cases, the defendant has taken all reasonable steps to prevent the use of the premises as a brothel or for the specified related sex uses.
(8) Appeals
Regulations may be made for or with respect to the following matters:
(a)  the conferral of jurisdiction on the Local Court with respect to appeals against brothel closure orders,
(b)  removing the right to appeal under section 121ZK if an appeal is made to the Local Court against a brothel closure order under the regulations,
(c)  the conferral of jurisdiction on the Land and Environment Court with respect to appeals from decisions of the Local Court on appeals against brothel closure orders,
(d)  the modification of provisions of the Crimes (Appeal and Review) Act 2001 for the purposes of appeals referred to in paragraph (c).
(9) Section prevails over Division
This section has effect despite any other provision of this Division.
Note. Failure to comply with a brothel closure order is an offence (see section 125).

121ZS   Enforcement of brothel closure orders by cessation of utilities

(1)  If a person fails to comply with a brothel closure order, the Local Court or the Land and Environment Court may, on the application of the person who gave the order, make an order (a utilities order) directing that a provider of water, electricity or gas to the premises concerned cease to provide those services.
(2)  An order may apply to the whole or part of premises.
(3)  A utilities order ceases to have effect on the date specified in the order, or 3 months after the order is made, whichever occurs first.
(4)  An application for a utilities order must not be made unless not less than 7 days notice of the proposed application is given to the following persons:
(a)  any person to whom the brothel closure order was given,
(b)  any provider of water, electricity or gas to the premises who is affected by the application,
(c)  any owner or occupier of the premises.
(5)  An owner or occupier of premises, or a provider of water, electricity or gas to premises, who is affected by an application for a utilities order is entitled to be heard and represented in proceedings for the order.
(6)  In determining whether to make a utilities order, the court is to take into consideration the following matters:
(a)  the effects of the failure to comply with the brothel closure order,
(b)  the uses of the premises,
(c)  the impact of the order on the owner, occupier or other users of the premises,
(d)  whether the health or safety of any person, or of the public, will be detrimentally affected by the order,
(e)  any other matter the court thinks appropriate.
(7)  A utilities order must not be made for premises, or any part of premises, used for residential purposes.
(8)  A provider of water, electricity or gas must comply with a utilities order, despite any other law or agreement or arrangement applying to the provision of water, electricity or gas to the premises, or part of premises, concerned.
(9)  No compensation is payable to any person for any damage or other loss suffered by that person because of the making or operation of a utilities order or this section.
(10)  A provider of water, electricity or gas must not, during a period that a utilities order is in force in relation to premises, or part of premises, require payment for the provision of water, electricity or gas services to the premises or part of premises (other than services related to the implementation of the order).
(11)  The Land and Environment Court or the Local Court may make a utilities order when it determines an appeal against a brothel closure order, if subsections (4) and (5) have been complied with.

Division 2B Monitoring and environmental audits—approved projects

122A   Application of Division

(1)  This Division applies to the carrying out of a project approved under Part 3A.
(2)  This Division does not affect the other provisions of this Act.

122B   Nature of monitoring and environmental audits

(1)  For the purposes of this Division, monitoring of a project is the monitoring of the carrying out of the project to provide data on compliance with the approval of the project or on the project’s environmental impact.
(2)  For the purposes of this Division, an environmental audit of a project is a periodic or particular documented evaluation of an approved project to provide information to the proponent of the project and to the persons administering this Act on compliance with the approval of the project or on the project’s environmental management or impact.
(3)  A reference in this section to compliance with the approval of a project includes a reference to compliance with:
(a)  the conditions to which the approval of the project is subject, and
(b)  the requirements of this Act and of relevant provisions of any other Act referred to in Division 4 of Part 3A.

122C   Minister may require monitoring or environmental audits by imposition of conditions on approved project

(1)  The Minister may, by the imposition of conditions on the approval for a project, require monitoring or an environmental audit or audits to be undertaken to the satisfaction of the Minister by the proponent of the project.
(2)  A condition requiring monitoring or an environmental audit may be imposed at the time the approval for the project is given or at any other time by notice in writing to the proponent of the project.
(3)  Any such condition imposed by notice may be varied or revoked by a similar notice.

122D   Provisions relating to conditions for monitoring and environmental audits

(1)  A condition requiring monitoring may require:
(a)  the provision and maintenance of appropriate measuring and recording devices for the purposes of the monitoring, and
(b)  the analysis, reporting and retention of monitoring data, and
(c)  certification of the monitoring data (including the extent to which the terms and conditions of any approval have or have not been complied with).
(2)  A condition requiring an environmental audit must specify the purpose of the audit. Such a condition may require:
(a)  the conduct of the audit by the proponent or by an independent person or body approved by the Minister or the Director-General (either periodically or on particular occasions), and
(b)  preparation of written documentation during the course of the audit, and
(c)  preparation of an audit report, and
(d)  certification of the accuracy and completeness of the audit report, and
(e)  production to the Minister of the audit report.

122E   Offences

(1) False or misleading information in monitoring or audit report
A person must not include information in (or provide information for inclusion in):
(a)  a report of monitoring data, or
(b)  an audit report produced to the Minister in connection with an environmental audit,
if the person knows that the information is false or misleading in a material respect.
(2) Information not included in monitoring or audit report
The proponent of an approved project must not fail to include information in (or provide information for inclusion in):
(a)  a report of monitoring data, or
(b)  an audit report produced to the Minister in connection with an environmental audit,
if the proponent knows that the information is materially relevant to the monitoring or audit.
(3) Retention of monitoring data or audit documentation
The proponent of an approved project must:
(a)  retain any monitoring data in accordance with the relevant condition of the approval for at least 5 years after it was collected, and
(b)  retain any documentation required to be prepared by the proponent in connection with an environmental audit for a period of at least 5 years after the audit report concerned was produced to the Minister, and
(c)  produce during that period any such documentation on request to an authorised officer under Division 2C.
(4) Penalty
Despite section 126, the maximum penalty for an offence under section 125 arising under this Division is:
(a)  in the case of a corporation—$250,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or
(b)  in the case of an individual—$120,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues.

122F   Self-incriminatory information and use of information

(1)  Information must be supplied by a person in connection with a report of monitoring or an environmental audit, and this Division applies to any such information that is supplied, whether or not the information might incriminate the person.
(2)  Any information in monitoring data or in an audit report or other documentation supplied to the Minister in connection with an environmental audit may be taken into consideration by the Minister and used for the purposes of this Act.
(3)  Without limiting the above, any such information:
(a)  is admissible in evidence in any prosecution of the proponent of an approved project for any offence (whether under this Act or otherwise), and
(b)  may be disclosed by the Minister by publishing it in such manner as the Minister considers appropriate.

Division 2C Departmental enforcement powers

Subdivision 1 Preliminary

122G   Purposes for which powers under Division may be exercised

(1)  Powers may be exercised under this Division for the following purposes:
(a)  for enabling the Minister or Director-General to exercise their functions under this Act,
(b)  for determining whether there has been compliance with or a contravention of this Act, the regulations, any environmental planning instrument, any approval under Part 3A or any development consent under Part 4 or any document or requirement issued or made under this Act,
(c)  for obtaining information or records for purposes connected with the administration of this Act,
(d)  generally for administering this Act and securing the objects of this Act.
(2)  Powers are not to be exercised under this Division for the purpose only of investigating the exercise of the statutory functions of a council under this Act.
(3)  Nothing in this Division affects any function under any other part of this Act or under any other Act.

122H   Definitions: Division 2C

In this Division:

authorised officer means a person appointed under section 122I.

occupier of premises means the person who has the management or control of the premises.

records includes plans, specifications, maps, reports, books and other documents (whether in writing, in electronic form or otherwise).

122I   Appointment of authorised officers

(1)  The Director-General may appoint any person (including a class of persons) as an authorised officer for the purposes of this Division.
(2)  An authorisation of a person as an authorised officer can be given generally, or subject to conditions, limitations or restrictions or only for limited purposes.
(3)  Every authorised officer is to be provided with an identification card as an authorised officer by the Director-General.
(4)  In the course of exercising the functions of an authorised officer under this Division, the officer must, if requested to do so by any person affected by the exercise of any such function, produce the officer’s identification card to the person.

Subdivision 2 Powers of entry and search of premises

122J   Powers of authorised officers to enter premises

(1)  An authorised officer may enter:
(a)  any premises at which the authorised officer reasonably suspects that any industrial, agricultural or commercial activities are being carried out—at any time during which those activities are being carried out there, and
(b)  any other premises—at any reasonable time.
(2)  A power to enter premises conferred by this Subdivision authorises entry by foot or by means of a motor vehicle or other vehicle, or in any other manner.
(3)  Entry may be effected under this Subdivision by an authorised officer with the aid of such authorised officers, police officers or other persons as the authorised officer considers necessary and with the use of reasonable force.
(4)  Entry may be effected to any premises with the authority of a search warrant under section 122M.

122K   Entry into residential premises only with permission or warrant

This Division does not empower an authorised officer to enter any part of premises used only for residential purposes without the permission of the occupier or the authority of a search warrant under section 122M.

122L   Powers of authorised officers to do things at premises

(1)  An authorised officer may, at any premises lawfully entered, do anything that in the opinion of the authorised officer is necessary to be done for the purposes of this Division, including (but not limited to) the things specified in subsection (2).
(2)  An authorised officer may do any of the following:
(a)  examine and inspect any works, plant or other article,
(b)  take and remove samples,
(c)  make such examinations, inquiries and tests as the authorised officer considers necessary,
(d)  take such photographs, films, audio, video and other recordings as the authorised officer considers necessary,
(e)  require records to be produced for inspection,
(f)  examine and inspect any records,
(g)  copy any records,
(h)  seize anything that the authorised officer has reasonable grounds for believing is connected with an offence against this Act or the regulations,
(i)  do any thing that a person authorised by a council is empowered to do under Division 1A,
(j)  do any other thing the authorised officer is empowered to do under this Division.
(3)  The power to seize anything connected with an offence includes a power to seize:
(a)  a thing with respect to which the offence has been committed, and
(b)  a thing that will afford evidence of the commission of the offence, and
(c)  a thing that was used for the purpose of committing the offence.

A reference to any such offence includes a reference to an offence that there are reasonable grounds for believing has been committed.

122M   Search warrants

(1) Application for search warrant
An authorised officer may apply to an issuing officer for the issue of a search warrant if the authorised officer believes on reasonable grounds that a provision of or made under this Act is being or has been contravened at any premises.
(2) Issue of search warrant
An issuing officer 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 officer named in the warrant:
(a)  to enter the premises, and
(b)  to exercise any function of an authorised officer under this Division.
(3) Application of Law Enforcement (Powers and Responsibilities) Act 2002
Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to a search warrant issued under this section.
(4) Definition
In this section:

issuing officer means an authorised officer within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002.

122N   Assistance to be given to authorised officers

(1)  This section applies for the purpose of enabling an authorised officer to exercise any of the powers of an authorised officer under this Division in connection with any premises.
(2)  The Director-General may, by notice in writing given to the owner or occupier of the premises, require the owner or occupier to provide such reasonable assistance and facilities as are specified in the notice within a specified time and in a specified manner.
(3)  Assistance and facilities can be required under this section, whether they are of the same kind as, or a different kind from, any prescribed by the regulations.

122O   Care to be taken and compensation

(1)  In the exercise of a power of entering or searching premises under this Subdivision, the authorised officer must do as little damage as possible.
(2)  The State must compensate all interested parties for any damage caused by an authorised officer in exercising a power of entering premises (but not any damage caused by the exercise of any other power), unless the occupier obstructed or hindered the authorised officer in the exercise of the power of entry.

Subdivision 3 Power to obtain information or records

122P   Application of Subdivision

This Subdivision applies whether or not a power of entry under this Division is being or has been exercised.

122Q   Requirement to provide information and records

(1)  An authorised officer may, by notice in writing given to a person, require the person to furnish to the officer such information or records (or both) as the officer requires by the notice in connection with any matter within the responsibilities and functions of the Minister or Director-General under this Act.
(2)  A notice under this Subdivision must specify the manner in which information or records are required to be furnished and a reasonable time by which the information or records are required to be furnished.

122R   Provisions relating to records

(1)  A notice under this Subdivision may only require a person to furnish existing records that are in the person’s possession or that are within the person’s power to obtain lawfully.
(2)  The body or person to whom any record is furnished under this Subdivision may take copies of it.
(3)  If any record required to be furnished under this Subdivision is in electronic, mechanical or other form, the notice requires the record to be furnished in written form, unless the notice otherwise provides.

122S   Power of authorised officers to require answers and record evidence

(1)  An authorised officer may require a person whom the authorised officer suspects on reasonable grounds to have knowledge of matters in respect of which information is reasonably required in connection with any matter within the responsibilities and functions of the Minister or Director-General under this Act to answer questions in relation to those matters.
(2)  The Minister or Director-General may require a corporation to nominate a director or officer of the corporation who is authorised to represent the corporation for the purposes of answering questions under this section.
(3)  An authorised officer may, by notice in writing, require a person to attend at a specified place and time to answer questions under this section if attendance at that place is reasonably required in order that the questions can be properly put and answered.
(4)  The place and time at which a person may be required to attend under subsection (3) is to be:
(a)  a place or time nominated by the person, or
(b)  if the place and time nominated is not reasonable in the circumstances or a place and time is not nominated by the person, a place and time nominated by the authorised officer that is reasonable in the circumstances.
(5)  An authorised officer may cause any questions and answers to questions given under this section to be recorded if the officer has informed the person who is to be questioned that the record is to be made.
(6)  A record may be made using sound recording apparatus or audio visual apparatus, or any other method determined by the authorised officer.
(7)  A copy of any such record must be provided by the authorised officer to the person who is questioned as soon as practicable after it is made.
(8)  A record may be made under this section despite the provisions of any other law.

Subdivision 4 General

122T   Criminal proceedings relating to compliance with requirements under this Division

(1)  A person is not guilty of an offence under section 125 in respect of a neglect or failure to comply with a requirement made of the person under this Division if the person satisfies the court that the person had a lawful excuse for doing so.
(2)  A person must not furnish any information or do any other thing in purported compliance with a requirement made under this Division that the person knows is false or misleading in a material respect.
(3)  A person must not wilfully delay or obstruct an authorised officer in the exercise of the authorised officer’s powers under this Division.
(4)  Despite section 126, the maximum penalty for an offence under section 125 arising under this Division is:
(a)  in the case of a corporation—$250,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or
(b)  in the case of an individual—$120,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues.

122U   Provisions relating to requirements to furnish records, information or answer questions

(1) Warning to be given on each occasion
A person is not guilty of an offence of failing to comply with a requirement under this Division to furnish records or information or to answer a question unless the person was warned on that occasion that a failure to comply is an offence.
(2) Self-incrimination not an excuse
A person is not excused from a requirement under this Division to furnish records or information or to answer a question on the ground that the record, information or answer might incriminate the person or make the person liable to a penalty.
(3) Information or answer not admissible if objection made
However, any information furnished or answer given by a natural person in compliance with a requirement under this Division is not admissible in evidence against the person in criminal proceedings (except proceedings for an offence under this Division) if:
(a)  the person objected at the time to doing so on the ground that it might incriminate the person, or
(b)  the person was not warned on that occasion that the person may object to furnishing the information or giving the answer on the ground that it might incriminate the person.
(4) Records admissible
Any record furnished by a person in compliance with a requirement under this Division is not inadmissible in evidence against the person in criminal proceedings on the ground that the record might incriminate the person.
(5) Further information
Further information obtained as a result of a record or information furnished or of an answer given in compliance with a requirement under this Division is not inadmissible on the ground:
(a)  that the record or information had to be furnished or the answer had to be given, or
(b)  that the record or information furnished or answer given might incriminate the person.

122V   Miscellaneous provisions relating to notices

(1)  More than one notice under a provision of this Division may be given to the same person.
(2)  A notice given under this Division may be revoked or varied by a subsequent notice or notices (including by extending the time for compliance with the notice).
(3)  A notice may be given under this Division to a person in respect of a matter or thing even though the person is outside the State or the matter or thing occurs or is located outside the State, so long the matter or thing affects the environment of this State.

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,
(vi)  a planning agreement referred to in section 93F.

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)  (Repealed)

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.

124AA   Evidence of use of premises as backpackers’ hostel

(1)  This section applies to proceedings before the Court under this Act to remedy or restrain a breach of this Act in relation to the use of premises as a backpackers’ hostel.
(2)  In any proceedings to which this section applies, the Court may rely on circumstantial evidence to find that particular premises are used as a backpackers’ hostel.
Note. Examples of circumstantial evidence include (but are not limited to) the following:
(a)  evidence relating to persons entering and leaving the premises (including the depositing of luggage) that is consistent with the use of the premises for a backpackers’ hostel,
(b)  evidence of the premises being advertised expressly or implicitly for the purposes of a backpackers’ hostel (including advertisements on or in the premises, newspapers, directories or the Internet),
(c)  evidence relating to internal and external signs and notices at the premises (including price lists, notices to occupants and offers of services) that is consistent with the use of the premises for a backpackers’ hostel,
(d)  evidence of the layout of rooms, and the number and arrangement of beds, at the premises that is consistent with the use of the premises for a backpackers’ hostel.

124AB   Proceedings relating to use of premises as brothel

(1) Application
This section applies to proceedings before the Court to remedy or restrain a breach of this Act in relation to the use of premises as a brothel. Subsections (5) and (6) extend to any such proceedings in relation to all brothels within the meaning of the Restricted Premises Act 1943.
(2) Adjournments to obtain consent only in exceptional circumstances
The Court may not adjourn the proceedings under section 124 (3) unless it is of the opinion that the adjournment is justified because of the exceptional circumstances of the case. The fact that it is intended to lodge a development application, or that a development application has been made, is not by itself an exceptional circumstance.
(3) Time for making development application limited to 10 days
If the Court adjourns the proceedings under section 124 (3), the proceedings must be brought back before the Court if a development application is not made within 10 working days of the adjournment.
(4) Only one adjournment
The Court may make only one adjournment under section 124 (3) of particular proceedings.
(5) Finding may be made on circumstantial evidence
In any proceedings:
(a)  the Court may rely on circumstantial evidence to find that particular premises are used as a brothel, and
(b)  the Court may make such a finding without any direct evidence that the particular premises are used as a brothel.
(6)  However, the presence in any premises of articles or equipment that facilitate or encourage safe sex practices does not of itself constitute evidence of any kind that the premises are used as a brothel.
Note. Examples of circumstantial evidence include (but are not limited to) the following:
(a)  evidence relating to persons entering and leaving the premises (including number, gender and frequency) that is consistent with the use of the premises for prostitution,
(b)  evidence of appointments with persons at the premises for the purposes of prostitution that are made through the use of telephone numbers or other contact details that are publicly advertised,
(c)  evidence of information in books and accounts that is consistent with the use of the premises for prostitution,
(d)  evidence of the arrangement of, or other matters relating to, the premises, or the furniture, equipment or articles in the premises, that is consistent with the use of the premises for prostitution.

124A   Special provision where development consent tainted by corruption

(1)  For the purposes of this section, a decision of a consent authority to grant or modify a development consent is tainted by corrupt conduct:
(a)  if the Independent Commission Against Corruption, in a report referred to in section 74C of the Independent Commission Against Corruption Act 1988, recommends that consideration be given to the suspension of the development consent or modification with a view to its revocation because of serious corrupt conduct by the consent authority or by a councillor or other officer or member of staff of the consent authority in connection with the grant of the consent or modification, or
(b)  if criminal proceedings are instituted against the consent authority or against a councillor or other officer or member of staff of the consent authority for serious corrupt conduct in connection with the grant of the consent or modification, or
(c)  if the consent authority, councillor or other officer or member of staff makes an admission of such serious corrupt conduct.
(2)  A breach of this Act that may be remedied or restrained in proceedings instituted under this Division includes a decision of a consent authority to grant or modify a development consent that is tainted by corrupt conduct.
(3)  If a decision of a consent authority to grant or modify a development consent is tainted by corrupt conduct, the Minister may, without prior notice or inquiry, suspend the decision pending the institution and determination of proceedings under this Division in respect of the decision. The Minister is to give the consent authority and the applicant for the grant or modification of the development consent written notice of the suspension as soon as practicable after it is imposed.
(4)  A suspension imposed by the Minister may be lifted by the Minister at any time and is taken to be lifted if the proceedings concerned are not instituted within 6 months after the suspension is imposed.
(5)  The Court may, in proceedings to which this section applies, suspend the decision of a consent authority to grant or modify a development consent pending the determination of the proceedings. The Court may lift a suspension imposed by the Minister under this section.
(6)  The Court may, in proceedings to which this section applies, revoke the decision of a consent authority to grant or modify a development consent if:
(a)  the decision is tainted by corrupt conduct, and
(b)  the Court is satisfied that the revocation of the decision will not significantly disadvantage any person affected by the decision who was not a party to the corrupt conduct.

The Court retains its discretion in proceedings to which this section applies as to whether to revoke a decision that is tainted by corrupt conduct.

(7)  A development consent for the erection of a building, the carrying out of a work or the demolition of a building or work (or a modification of any such consent) is not to be suspended or revoked under this section if the building, work or demolition authorised by the consent (or by the modification) has been substantially commenced.
(8)  Section 101 does not apply to proceedings to which this section applies.
(9)  Compensation is not payable by the Minister or the State for any loss suffered by a person because:
(a)  a decision is suspended under this section (whether or not the Court decides to revoke the decision), or
(b)  a decision is revoked under this section.
(10)  This section applies:
(a)  to decisions made by a consent authority before or after the commencement of this section, and
(b)  to serious corrupt conduct, and to criminal proceedings instituted or admissions made in respect of serious corrupt conduct, before or after that commencement.
(11)  In this section:

serious corrupt conduct means corrupt conduct (within the meaning of the Independent Commission Against Corruption Act 1988) that may constitute a serious indictable offence.

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-General, 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-General, 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.
(5)  Unless the context otherwise requires, a requirement under this Act or the regulations that must be complied with by a particular time, or within a particular period, continues after the time has expired or the period ended, and so must still be complied with.

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, for every such offence, liable to:
(a)  the penalty (not exceeding 1,000 penalty units) expressly imposed by the regulations, or
(b)  if no such penalty is imposed, 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).
(4)  In determining the sentence for a person who has previously been found guilty of an offence that arises from a failure to comply with a brothel closure order within the meaning of section 121ZR or the unlawful use of premises for the purposes of a brothel, a court must take into account the fact of the previous offence as an aggravating factor and is, accordingly, to impose a higher sentence than it would otherwise impose.

127   Proceedings for offences

(1)  Proceedings for an offence against this Act may be taken before the Local Court or before the Court in its summary jurisdiction.
(2)  Proceedings for an offence against the regulations may be taken before the Local Court.
(3)  If proceedings in respect of an offence against this Act are brought in the Local Court, 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 for an offence against this Act or the regulations may be commenced not later than 2 years after the offence was alleged to be committed.
(5A)  However, proceedings for any such offence may also be commenced within, but not later than, 2 years after the date on which evidence of the alleged offence first came to the attention of an authorised officer within the meaning of Division 2C of Part 6.
(5B)  If subsection (5A) is relied on for the purpose of commencing proceedings for an offence, the information or application must contain particulars of the date on which evidence of the offence first came to the attention of an authorised officer and need not contain particulars of the date on which the offence was committed. The date on which evidence first came to the attention of an authorised officer is the date specified in the information or application, unless the contrary is established.
(5C)  This section applies despite anything in the Criminal Procedure Act 1986 or any other Act.
(6)  (Repealed)
(7)  A person shall not be convicted of an offence against this Act or the regulations 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 or the regulations, 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, and
(d)  prescribe different amounts of penalties for the same offence, including, in the case of a continuing offence, different amounts of penalties for different periods during which the offence continues.
(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 person who is declared by the regulations to be an authorised person for the purposes of this section or who belongs to a class of persons so declared.
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