Division 2AIn this Division:order means an order under this Division.
121B What orders may be given by a consent authority?
(1) An order may be given to a person by:(a) a council, or(b) any other person who exercises functions as a consent authority, except in relation to complying development for which a complying development certificate has been issued,to do or to refrain from doing a thing specified in the following Table if the circumstances specified opposite it in Column 2 of the Table exist and the person comes within the description opposite it in Column 3 of the Table.
Column 1
Column 2
Column 3
To do what?
In what circumstances?
To whom?
1
To cease using premises for a purpose specified in the order
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
Owner of building
3
Not to demolish, or to cease demolishing a building
Owner of building, person likely to demolish or person engaged in demolition
4
To repair or make structural alterations to a building
Owner of building
5
To alter, obliterate, demolish or remove an advertisement and any associated advertising structure
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
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
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 authorityAny 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 authorityThe 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
The owner of the premises, any person entitled to act on a development consent or complying development certificate or any person acting otherwise than in compliance with a development consent or complying development certificate
13
To do such things as are necessary to bring into compliance with relevant development standards any building or part of a building that has been unlawfully erected
Building has been unlawfully erected and does not comply with relevant development standards
The owner of the premises
14
To repair or remove a building
The building is situated wholly or partly in a public place
Owner or occupier of building
15
To comply with a development consent
The development consent is not being complied with
Person entitled to act on the development consent or person acting otherwise than in compliance with the development consent
16
To complete development that is subject to a development consent within such time (not being less than 12 months from the date of service of the order) as the consent authority considers reasonable, having regard to all relevant circumstances, including the nature of the development, and including, if the development is the subject of:
(a) a proposed strata development contract referred to in the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986, or(b) a development contract registered with a community plan or precinct plan under the Community Land Development Act 1989,the proposals relating to the stages in which the development is to be effectedThe development has been commenced within the period specified in section 95 (1) but has not been completed within that period
The owner of the land to which the development consent applies
17
To carry out works associated with a subdivision
There has been a failure to carry out the works in accordance with a development consent or an agreement made with the applicant for development consent
The person required to carry out the works
(2) The regulations may prescribe acts and circumstances that are taken to be included in or excluded from any of the acts or circumstances specified in Column 1 or 2 of the Table to subsection (1).
121C Giving orders to public authorities
(1) An order under this Division may not be given in respect of the following land without the prior written consent of the Minister:(a) vacant Crown land,(b) a reserve within the meaning of Part 5 of the Crown Lands Act 1989,(c) a common within the meaning of the Commons Management Act 1989.(2) The Minister must not give consent in respect of vacant Crown land or a reserve within the meaning of Part 5 of the Crown Lands Act 1989 until after the Minister has consulted the Minister administering the Crown Lands Act 1989.
121D Circumstances in which compliance with secs 121F–121K is required
Before giving an order, the person who gives the order must comply with sections 121F–121K, except for:(a) order No 8 in the Table to section 121B, or(b) an order given, and expressed to be given, in an emergency.
121E Effect of compliance with secs 121F–121K
A person who complies with sections 121F–121K is taken to have observed the rules of natural justice (the rules of procedural fairness).
121F Criteria to be considered before order is given
If a council has adopted criteria in a development control plan under section 72 on which it is to give an order, the council is required to take the criteria into consideration before giving the order.
121G Orders that make or are likely to make residents homeless
(1) If an order will or is likely to have the effect of making a resident homeless, the person who gives the order must consider whether the resident is able to arrange satisfactory alternative accommodation in the locality.(2) If the resident is not able to arrange satisfactory alternative accommodation in the locality, the person who gives the order must provide the resident with:(a) information as to the availability of satisfactory alternative accommodation in the locality, and(b) any other assistance that the person considers appropriate.
121H Notice to be given of proposed order
(1) Notice to whom the order is to be given
Before giving an order, the person who gives the order must give notice to the person to whom the order is proposed to be given of the intention to give the order, the terms of the proposed order and the period proposed to be specified as the period within which the order is to be complied with.(2) The notice must also indicate that the person to whom the order is proposed to be given may make representations to the person who gives the order as to why the order should not be given or as to the terms of or period for compliance with the order.(3) The notice may provide that the representations are to be made to the person who gives the order or a nominated person on a nominated date, being a date that is reasonable in the circumstances of the case. In the case of a council this may be a specified committee of the council on a specified meeting date or to a specified employee of the council on or before a specified date.(4) Notice to the other consent authorities
If a council proposes to give an order in relation to development for which another person is the consent authority, the council must give the other person notice of its intention to give the order.
121I Making of representations
(1) A person may, in accordance with a notice under section 121H, make representations concerning the proposed order.(2) For the purpose of making the representations, the person may be represented by a barrister, solicitor or agent.
121J Hearing and consideration of representations
The person who gives the order or the nominated person is required to hear and to consider any representations made under section 121I.
121K Procedure after hearing and consideration of representations
(1) After hearing and considering any representations made concerning the proposed order, the person who gives the order or the nominated person may determine:(a) to give an order in accordance with the proposed order, or(b) to give an order in accordance with modifications made to the proposed order, or(c) not to give an order.(2) If the determination is to give an order in accordance with modifications made to the proposed order, the person who gives the order is not required to give notice under this Division of the proposed order as so modified.
121L Reasons for orders to be given
(1) A person who gives an order must give the person to whom the order is directed the reasons for the order.(2) The reasons may be given in the order or in a separate instrument.(3) The reasons must be given when the order is given, except in an emergency. In an emergency, the reasons may be given the next working day.
121M Period for compliance with order
(1) An order must specify a reasonable period within which the terms of the order are to be complied with, subject to this section.(2) An order may require immediate compliance with its terms in circumstances which the person who gives the order believes constitute a serious risk to health or safety or an emergency.
121N Notice of right to appeal against order
A person who gives an order must, in giving a person notice of the order:(a) state that the person or any other person affected by the order may appeal to the Court against the order or a specified part of the order, and(b) specify the period within which an appeal may be made.
121O Development consent not required to comply with order
A person who carries out work in compliance with a requirement of an order does not have to make an application under Part 4 for consent to carry out the work.
121P Order may specify standards and work that will satisfy those standards
(1) Instead of specifying the things the person to whom the order is given must do or refrain from doing, an order:(a) may specify the standard that the premises are required to meet, and(b) may indicate the nature of the work that, if carried out, would satisfy that standard.(2) Such an order may require the owner or occupier to prepare and submit to the person who gives the order, within the period (not exceeding 3 months) specified in the order, particulars of the work the owner or occupier considers necessary to make provision for such matters as may be so specified.
121Q Compliance with order under sec 121P
(1) A person complies with a requirement of an order under section 121P (2) by submitting to the person who gives the order such matters as the person would be required to submit if applying to a consent authority for development consent to carry out the work.(2) (Repealed)
121R Consent authority’s response to submission of particulars of work by owner
(1) A person who gives an order must, within 28 days after particulars of work are submitted to the person in accordance with section 121P (2):(a) accept the particulars without modification or with such modifications as the person thinks fit, or(b) reject the particulars.(2) If a person accepts the particulars of work without modification, the person must forthwith order the owner to carry out that work.(3) If a person accepts the particulars of work with modifications or rejects the particulars, or if an owner fails to submit particulars of work in accordance with section 121P (2), the person must:(a) prepare, within 3 months after the acceptance, rejection or failure, particulars of the work that the person considers necessary to make provision for the matters specified in the order given to the owner under section 121P, and(b) order the owner to carry out that work.(4) An order under this section is not invalid merely because of the failure of the person to accept or reject any particulars of work or prepare particulars of any work, as the case may be, within the period it is required to do so by this section.(5) A person may recover from an owner as a debt the person’s expenses of preparing particulars of work under this section.(6) Except for the purposes of section 121ZK (3), an order under this section forms part of the order under section 121B to which it relates.
121S Orders affecting heritage items
(1) This section applies to an item of the environmental heritage:(a) to which an interim heritage order or listing on the State Heritage Register under the Heritage Act 1977 applies or to which an order under section 136 of that Act applies, or(b) that is identified as such an item in an environmental planning instrument.(2) A person must not give an order under this Division in respect of an item of the environmental heritage to which this section applies until after the person has considered the impact of the order on the heritage significance of the item.(3) A person must not give an order under this Division in respect of an item of the environmental heritage to which subsection (1) (a) applies until after the person has given notice of the order to the Heritage Council and has considered any submissions duly made to the person by the Heritage Council.(4) The Heritage Council may, by instrument in writing served on a person, exempt the person from the requirements of subsection (3).(5) An exemption under subsection (4) may be given unconditionally or subject to such conditions as the Heritage Council determines, and may be varied or revoked by a subsequent instrument in writing made by the Heritage Council and served on the person.(6) The Heritage Council may make a submission:(a) within 28 days after it is given notice by the person, or(b) if, within 28 days after it is given notice by the person, the Heritage Council requests that a joint inspection of the item be made, within 28 days after the joint inspection is made.(7) If the Heritage Council notifies a person that it wishes to be consulted in connection with an order under section 121R, the person must include a statement to that effect in any order under section 121P.(8) This section does not apply to:(a) order No 3 in the Table to section 121B if given by a person in an emergency, or(b) order No 8, 10 or 11.
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.
(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.
A person who gives an order may, at any time, modify an order it has given to a person (including a modification of the period specified for compliance with the order) if the person to whom the order is given agrees to that modification.
(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’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.