Part 2 Orders

Division 1 Giving of orders

124   What orders may be given, in what circumstances and to whom?

A council may order a person to do or to refrain from doing a thing specified in Column 1 of 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.

Note. This section does not affect the power of a council to give an order (or a notice or direction) under the authority of another Act.

For example, some of those Acts and the orders (or notices or directions) that may be given include:

Food Act 2003	(by delegation) improvement notice or prohibition order
Protection of the Environment Operations Act 1997	environment protection notices
Public Health Act 1991	direction concerning maintenance or use of certain air-conditioning systems
Roads Act 1993	order preventing the passage of traffic along a road or tollway
	order for the removal of an obstruction or encroachment on a road
Swimming Pools Act 1992	order requiring owner of swimming pool to bring it into compliance with the Act

A person who fails to comply with an order is guilty of an offence—see sec 628.

Table

Orders

Orders requiring or prohibiting the doing of things to or on premises

Column 1		Column 2	Column 3
To do what?		In what circumstances?	To whom?
1	To demolish or remove a building	(a)–(c)  (Repealed) (d)  Building is erected in a catchment district and causes or is likely to cause pollution of the water supply	Owner of building
2	(Repealed)
3	To repair or make structural alterations to a building	(a), (b)  (Repealed) (c)  Building is erected in a catchment district and causes or is likely to cause pollution of the water supply	Owner of building
4	(Repealed)
5	To take such action as is necessary to bring into compliance with relevant standards or requirements set or made by or under this Act or under the Local Government Act 1919: (a)  a camping ground, caravan park or manufactured home estate (b)  a moveable dwelling or manufactured home (c)  (Repealed) (d)  a place of shared accommodation (e)  a hairdressers shop or beauty salon (f)  a mortuary (g)  (Repealed) (h)  a water meter, water supply or sewerage system on premises	Failure to comply with relevant standards or requirements set or made by or under this Act or under the Local Government Act 1919	Owner, occupier or manager or, in the case of a water meter, water supply or sewerage system in respect of which a defect occurs in work due to faulty workmanship of, or defective material supplied by, a licensed contractor (being the holder of a licence in force under the Home Building Act 1989 authorising the holder to contract to do the work) within 12 months after the work is carried out or the material is supplied, the licensed contractor
6	(Repealed)
7	To fence land	Public health, safety or convenience renders it necessary or expedient to do so and there is no adequate fence between the land and a public place	Owner or occupier of land
8	To identify premises with such numbers or other identification in such manner as is specified in the order	Premises have a frontage to or entrance from a road and there are no markings that can readily be seen and understood from the road	Owner or occupier of land
9	To fence, empty, fill in or cover up a hole or waterhole in the manner specified in the order	Hole or waterhole is or may become dangerous to life	Owner or occupier of land
10	To remove or stack articles or matter, to cover articles or matter, to erect fences or screens or to plant trees	Land is in the immediate vicinity of a public place and is used for the storage of articles or matter so as to create or be likely to create unsightly conditions	Owner or occupier of land
11	To do or to refrain from doing such things as are specified in the order to prevent environmental damage, to repair environmental damage or to prevent further environmental damage	Work carried out on land has caused or is likely to cause environmental damage, being damage to the physical environment that is caused by: (a)  drainage, or (b)  drainage works, or (c)  obstructing a natural watercourse other than by a work constructed or used under a water management work approval granted under the Water Management Act 2000, not being environmental damage arising from premises, works or equipment the subject of a licence issued under the Protection of the Environment Operations Act 1997 or the subject of a notice or direction issued by a regulatory authority under that Act	Owner or occupier of land
12	To do such things as are necessary to control the flow of surface water across land	Other land, or a building on the land or other land, is being damaged or is likely to be damaged	Owner or occupier of land
13, 14	(Repealed)

Orders requiring that premises be used or not used in specified ways

Column 1		Column 2	Column 3
To do what?		In what circumstances?	To whom?
15	Not to conduct, or to cease conducting, an activity on premises (whether or not the activity is approved under this Act)	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
15A	(Repealed)
16	To cease the use of premises or to evacuate premises	A person to whom order No 15 is given has failed to comply with the order	The person to whom order No 15 is given
17	To leave premises or not to enter premises	A person to whom order No 15 is given has failed to comply with the order	Any person
18	Not to keep birds or animals on premises, other than of such kinds, in such numbers or in such manner as specified in the order	Birds or animals kept on premises are: (a)  in the case of any premises (whether or not in a catchment district)—of an inappropriate kind or number or are kept inappropriately, or (b)  in the case of premises in a catchment district—birds or animals (being birds or animals that are suffering from a disease which is communicable to man or to other birds or animals) or pigs	Occupier of premises
19	To use or not to use a tennis court as specified	Actual or likely annoyance or threat to the safety of neighbours or users of a public place	Occupier of land

Orders requiring the preservation of healthy conditions

Column 1		Column 2	Column 3
To do what?		In what circumstances?	To whom?
20	To do such things as are specified in the order to put premises, vehicles or articles used for the manufacture, preparation, storage, sale, transportation or other handling or use of or in relation to food into a clean or sanitary condition	The premises, vehicle or article is not in a clean or sanitary condition	Owner or occupier of premises or owner or operator of vehicle or article
21	To do or refrain from doing such things as are specified in the order to ensure that land is, or premises are, placed or kept in a safe or healthy condition	The land or premises are not in a safe or healthy condition	Owner or occupier of land or premises
22	To store, treat, process, collect, remove, dispose of or destroy waste which is on land or premises in the manner specified in the order, provided that it is not inconsistent with regulations made under the Protection of the Environment Operations Act 1997	Waste is present or generated on the land or premises and is not being dealt with satisfactorily, and is not regulated or controlled by, or subject to, a licence or notice granted or issued under the Protection of the Environment Operations Act 1997	Owner or occupier of land or premises, owner of or person responsible for the waste or for any receptacle or container in which the waste is contained
22A	To remove or dispose of waste that is on any residential premises or to refrain from keeping waste on those premises	The waste is, in the opinion of an environmental health officer (within the meaning of the Public Health Act 1991), causing or is likely to cause a threat to public health or the health of any individual	Owner or occupier of the premises
23	To connect premises to the council’s water supply by a specified date	The premises are situated within 225 metres of a water pipe of the council	Owner or occupier of land
24	To connect premises with a sewerage system by a specified date	The premises are situated within 75 metres of a sewer of the council	Owner or occupier of premises
25	Not to use or permit the use of a human waste storage facility on premises after a specified date	It is necessary for the purpose of protecting public health	Owner or occupier of premises

Orders requiring the protection or repair of public places

Column 1		Column 2	Column 3
To do what?		In what circumstances?	To whom?
26	(Repealed)
27	To remove an object or matter from a public place or prevent any object or matter being deposited there	The object or matter: (a)  is causing or is likely to cause an obstruction or encroachment of or on the public place and the obstruction or encroachment is not authorised by or under any Act, or (b)  is causing or is likely to cause danger, annoyance or inconvenience to the public	Person causing obstruction or encroachment or owner or occupier of land from which the object or matter emanates or is likely to emanate
28	To take whatever steps are necessary to prevent damage to a public place and to repair damage to a public place	There is actual or likely damage:
		(a)  by excavation or removal of material from or adjacent to the public place, or	Person responsible for the excavation or the removal of the material
		(b)  by a work or structure, or	Owner or person entitled to the benefit of the work or structure
		(c)  by surface drainage or irrigation	Owner or occupier of land from which surface drainage flows or from which spray emanates
29	To alter or repair a work or structure on, over or under a public place	It is in the public interest to do so	Owner of the work or structure

Orders requiring compliance with approval

Column 1		Column 2	Column 3
To do what?		In what circumstances?	To whom?
30	To comply with an approval	The approval is not being complied with	Person entitled to act on the approval or person acting otherwise than in compliance with the approval

125   Abatement of public nuisances

A council may abate a public nuisance or order a person responsible for a public nuisance to abate it.

Note. Abatement means the summary removal or remedying of a nuisance (the physical removal or suppression of a nuisance) by an injured party without having recourse to legal proceedings.

Nuisance consists of interference with the enjoyment of public or private rights in a variety of ways. A nuisance is “public” if it materially affects the reasonable comfort and convenience of a sufficient class of people to constitute the public or a section of the public. For example, any wrongful or negligent act or omission in a public road that interferes with the full, safe and convenient use by the public of their right of passage is a public nuisance.

126   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:

•  vacant Crown land

•  a reserve within the meaning of Part 5 of the Crown Lands Act 1989

•  a common.

(2)  The Minister must not give consent in respect of vacant Crown lands 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.

127   Making of regulations for the purposes of this Division

The regulations may prescribe acts or 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 section 124.

128   Catchment districts

(1)  The Governor may proclaim a district to be a catchment district for the purposes of this Act.

(2)  An owner of a building who complies with order No 1 in the Table to section 124 in the circumstances specified in paragraph (d) for that order, or order No 3 in that Table in the circumstances specified in paragraph (c) for that order, under section 124 is entitled to compensation from the council for the expenses incurred by the owner in complying with the order.

128A   Orders about removal or keeping of waste

(1)  An order in terms of order No 22A in the Table to section 124 ceases to have effect, unless earlier revoked under section 153, at the end of the period of 5 years after it is given.

(2)  The protection of public health is the paramount consideration in giving any such order.

Division 2 Procedures to be observed before giving orders

129   Circumstances in which compliance with this Division is required

(1)  Before giving an order, a council must comply with this Division.

(2)  This section does not apply to:

(a)  an order in terms of order No 15 in the Table to section 124, or

(a1)  an order in terms of order No 22A in the Table to section 124 (except to the extent that this section would otherwise require compliance with section 131A), or

(b)  an order given, and expressed to be given, in an emergency.

130   Effect of compliance with this Division

A council that complies with this Division is taken to have observed the rules of natural justice (the rules of procedural fairness).

131   Criteria to be considered before order is given

If the council has adopted criteria in a local policy under Part 3 on which it is to give an order, the council is required to take the criteria into consideration before giving the order.

131A   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 council must consider whether the resident is able to arrange satisfactory alternative accommodation in the locality.

(2)  If the person is not able to arrange satisfactory alternative accommodation in the locality, the council must provide the person with:

(a)  information as to the availability of satisfactory alternative accommodation in the locality, and

(b)  any other assistance that the council considers appropriate.

132   Notice to be given of proposed order

(1)  Before giving an order, a council must give notice to the person to whom the order is proposed to be given of its 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 council’s notice must also indicate that the person to whom the order is proposed to be given may make representations to the council 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 council or a specified committee of the council on a specified meeting date or to a specified councillor or employee of the council on or before a specified date being, in either case, a date that is reasonable in the circumstances of the case.

133   Making of representations

(1)  A person may, in accordance with a notice under section 132, 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.

134   Hearing and consideration of representations

The council or a specified committee, or the specified councillor or employee of the council, is required to hear and to consider any representations made under section 133.

135   Procedure after hearing and consideration of representations

(1)  After hearing and considering any representations made concerning the proposed order, the council, the committee, or the councillor or employee concerned, 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 council is not required to give notice under this Division of the proposed order as so modified.

Division 3 Orders generally

136   Reasons for orders to be given

(1)  A council must give the person to whom an 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 a case of urgency. In a case of urgency, the reasons may be given the next working day.

137   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 council believes constitute a serious risk to health or safety or an emergency.

138   Notice of right to appeal against order

(1)  A council must, in giving a person notice of an order:

(a)  state that the person may appeal to the Land and Environment Court against the order or a specified part of the order, and

(b)  specify the period within which an appeal may be made.

(2)  This section does not apply in relation to order No 22A in the Table to section 124.

138A   Approval or 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 Division 1, 2 or 3 of Part 1 for approval of the work or an application under Part 4 of the Environmental Planning and Assessment Act 1979 for consent to carry out the work.

139   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 council, 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.

140   Compliance with order referred to in sec 139 (2)

(1)  A person complies with a requirement of an order referred to in section 139 (2) by submitting to the council such matters as the person would be required to submit under section 81 if applying to the council for approval of the work.

(2)  (Repealed)

141   Council’s response to submission of particulars of work by owner

(1)  The council must, within 28 days after particulars of work are submitted to it in accordance with section 139 (2):

(a)  accept the particulars without modification or with such modifications as it thinks fit, or

(b)  reject the particulars.

(2)  If a council accepts the particulars of work without modification, the council must forthwith order the owner to carry out that work.

(3)  If a council 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 139 (2), the council must:

(a)  prepare, within 3 months after the acceptance, rejection or failure, particulars of the work that it considers necessary to make provision for the matters specified in the order referred to in section 139 given to the owner, 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 council 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.

(4A)  An order under this section forms part of the order under section 124 to which it relates.

(5)  A council may recover from an owner as a debt its expenses of preparing particulars of work under this section.

142   Orders affecting heritage items

(1)  This section applies to an item of the environmental heritage:

(a)  which is listed in the Register of the National Estate kept in pursuance of the Australian Heritage Commission Act 1975 of the Commonwealth, or

(b)  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

(c)  which is identified as such an item in an environmental planning instrument.

(2)  A council must not give an order under this Part in respect of an item of the environmental heritage to which this section applies until after it has considered the impact of the order on the heritage significance of the item.

(3)  A council must not give an order under this Part in respect of an item of the environmental heritage to which subsection (1) (a) or (b) applies until after it has given notice of the order to the Heritage Council and has considered any submissions duly made to it by the Heritage Council.

(3A)  The Heritage Council may, by instrument in writing served on a council, exempt the council from the requirements of subsection (3).

(3B)  An exemption under subsection (3A) 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 council.

(4)  The Heritage Council may make a submission:

(a)  within 28 days after it is given notice by the council, or

(b)  if, within 28 days after it is given notice by the council, the Heritage Council requests that a joint inspection of the item be made, within 28 days after the joint inspection is made.

(5)  If the Heritage Council notifies a council that it wishes to be consulted in connection with an order under section 141, the council must include a statement to that effect in any order under section 139.

(6)  This section does not apply to order No 15, 16, 17 or 22A in the Table to section 124 if given by a council in an emergency.

143   Combined orders

(1)  A council may include two or more orders in the same instrument.

(2)  However, an order in terms of order No 22A in the Table to section 124 cannot be included with another order in the same instrument.

144   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.

145   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.

146   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.

147   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.

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

(1)  The council 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 council’s opinion, necessary to enable the requirements of this Act or the regulations, or of any order under Division 1, 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 Division 1, 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.

149–151   (Repealed)

152   Modification of orders

A council 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 agrees to that modification.

153   Revocation of orders

(1)  An order given by the council may be revoked by the council at any time.

(2)  An order given by the Minister may be revoked by the Minister at any time.

(3)  (Repealed)

154   The Minister may exercise any function concerning an order that a council may exercise

(1)  The Minister may exercise any function under this Part that the council may exercise.

(2)  This Part (except Division 2) applies to the Minister in the same way as it applies to a council for the purpose of exercising any such function.

(3)  The Minister must not give an order to protect public health until after the Minister has consulted the Minister administering the Public Health Act 1991.

(3A)  The Minister must not give an order that relates to an activity that is the subject of a development consent granted under the Environmental Planning and Assessment Act 1979 by the Minister administering that Act until after the Minister has consulted that other Minister. However, the Minister is not required to consult, but must notify, the other Minister in the case of:

(a)  an order in terms of order No 15 in the Table to section 124, or

(b)  an order given, and expressed to be given, in an emergency.

(4)  If the Minister’s functions under this section are delegated, a person to whom an order by the Minister’s delegate is given may apply to the Minister for a review of the order within 28 days after service of the order.

(5)  The Minister’s decision on the review is final.

(6)  Part 5 (Appeals) does not apply to an order given under this section.

(7)  The Minister must forward a copy of an order given under this section to the relevant council.

155   Effect of inconsistency between council’s order and Minister’s order

An order given by a council under Division 1, to the extent to which it is inconsistent with an order given by the Minister under section 154, is void.

156   Minister may revoke or modify a council’s order

(1)  The Minister may revoke or modify an order given by a council.

(1A)  The Minister administering the Environmental Planning and Assessment Act 1979 may revoke or modify an order given by a council that relates to an activity that is the subject of a development consent granted under that Act. A reference in this section to the Minister includes a reference to the Minister administering that Act.

(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.

157   Limitation on Minister’s orders

The Minister must not give an order under this Part 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.

 

Orders