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Contents (1979 - 203)
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Environmental Planning and Assessment Act 1979 No 203
Current version for 15 February 2019 to date (accessed 22 April 2019 at 08:01)
Schedule 5
Schedule 5 Development control orders
Part 1 General orders
 
Column 1
Column 2
Column 3
 
To do what?
When?
To whom?
1
Stop Use Order
To stop using premises or a building
Not to conduct or to stop conducting an activity on the premises
Premises are being used:
•  for a prohibited purpose, or
•  for a purpose for which a planning approval is required but has not been obtained, or
•  in contravention of a planning approval.
Building is being used:
•  inconsistently with its classification under this Act or the Local Government Act 1993, and
•  in a manner that constitutes or is likely to constitute a life threatening hazard or a threat to public health or public safety, and
•  in a manner that is not regulated or controlled under any other Act by a public authority.
Premises are being used for an activity (that would or would be likely to require planning approval) that:
•  constitutes or is likely to constitute a life threatening hazard or a threat to public health or public safety, and
•  is not regulated or controlled under any other Act by a public authority.
•  The owner of premises or building
•  The person using the premises or building
2
Stop Work Order
To stop building work or subdivision work carried out in contravention of this Act
Building work or subdivision work is carried out:
•  in contravention of this Act, or
•  in a manner that would affect the support of adjoining premises.
•  Owner of the land
•  Any person apparently engaged in the work
3
Demolish Works Order
To demolish or remove a building
A building:
•  requiring a planning approval is erected without approval, or
•  requiring approval under the Local Government Act 1993 is erected without approval, or
•  is or is likely to become a danger to the public, or
•  is so dilapidated that it is prejudicial to persons or property in the neighbourhood, or
•  is erected in contravention of this Act.
Owner of building or, if the building is situated wholly or partly in a public place, the person who erected the building
4
Stop Demolition Order
To stop demolishing, or not to demolish, a building
Demolition requiring a planning approval is being carried out, or would be carried out, without approval or in contravention of an approval.
•  The owner of premises
•  The person carrying out the demolition or likely to carry out the demolition
5
Repair Order
To repair or make structural alterations to a building
The building is or is likely to become a danger to the public or is so dilapidated that it is prejudicial to the occupants, persons or property in the neighbourhood.
Owner of building
6
Remove Advertising Order
To modify, demolish or remove an advertisement and any associated structure
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, or
•  displayed contrary to a provision made by or under this Act, or
•  associated with a structure erected contrary to a provision made by or under this Act.
•  The owner of premises displaying the advertisement or on which the associated structure is erected
•  The person responsible for the display of the advertisement and erection of the associated structure
7
Public Safety Order
To erect or install structures or appliances necessary for public safety
A building:
•  is about to be erected, or
•  is dangerous to persons or property on or in a public place, or
•  is about to be demolished.
Works are:
•  about to be carried out, or
•  about to be demolished.
The owner or occupier of the land
8
Evacuate Premises Order
To stop using premises or to evacuate premises
A person who has failed to comply with a Stop Use Order issued because the use constitutes or is likely to constitute a life threatening hazard or a threat to public health or public safety.
The person to whom the Stop Use Order was given
9
Exclusion Order
To leave premises or not to enter premises
A person who has failed to comply with a Stop Use Order issued because the use constitutes or is likely to constitute a life threatening hazard or a threat to public health or public safety.
Any person
10
Restore Works Order
To restore premises to the condition in which they were before unlawful building or other works occurred
An unauthorised building has been the subject of a Demolish Works Order or unauthorised works have been carried out.
•  The owner of the premises
•  Any person entitled to act on a planning approval or acting in contravention of a planning approval
•  In relation to work unlawfully carried out that was the deposit of material in a public place, the person responsible for unlawfully depositing material in a public place
11
Compliance Order
To comply with a planning approval for the carrying out of works
A planning approval has not been complied with.
•  The owner of the premises
•  Any person entitled to act on a planning approval, or acting in contravention of a planning approval
 
To do whatever is necessary so that any building or part of a building that has been unlawfully erected complies with relevant development standards
Building has been unlawfully erected and does not comply with relevant development standards.
The owner of the premises
 
To carry out works associated with subdivision
Authorised subdivision works, or works agreed to by the applicant, have not been carried out.
The person required to carry out the works
12
Repair or Remove Works Order
To repair or remove a building in a public place
The building is unlawfully situated wholly or partly in a public place.
Owner or occupier of the building or the person who erected the building
13
Complete Works Order
To complete authorised works under a planning approval within a specified time
The authorised works have commenced, but have not been completed, before the planning approval would (but for the commencement of the works) have lapsed.
The owner of the relevant land
14
Remedy or Restrain Breach Order
To do or refrain from doing any act to remedy or restrain a breach of Division 5.2 (or an approval under that Division) or a breach of a consent for State significant development
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 or consent
15
Stop Coastal Activities Order
To cease carrying out or conducting an activity on a beach, dune or foreshore (within the meaning of those terms in the Coastal Management Act 2016), whether or not the activity is subject to a development consent
The activity is being carried out in contravention of this Act
Any person apparently engaged in promoting, conducting or carrying out the activity
Part 2 Fire safety orders
 
Column 1
Column 2
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To do what?
In what circumstances?
To whom?
1
To do or stop doing things for the purposes of ensuring or promoting adequate fire safety or fire safety awareness
When provision for fire safety or fire safety awareness is inadequate to:
•  prevent fire, or
•  suppress fire, or
•  prevent the spread of fire.
To ensure or promote the safety of persons in the event of fire.
When lack of maintenance of the premises or the use of the premises constitutes a significant fire hazard.
The owner of the premises or, in the case of a place of shared accommodation, the owner or manager
2
To stop doing an activity on premises, including on premises used for the purposes of shared accommodation
The activity is or is likely to be:
•  a life threatening hazard, or
•  a threat to public health or public safety,
and the activity 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
3
To stop the use of premises or to evacuate premises, or not to enter the premises
When an order under item 1 or 2 above has already been served and has not been complied with.
Any person
Part 3 Brothel closure orders
 
Column 1
Column 2
Column 3
 
To do what?
In what circumstances?
To whom?
 
To stop using premises as a brothel, including to specifically stop using the premises for:
•  sexual acts or services in exchange for payment, or
•  massage services (other than genuine remedial or therapeutic massage services) in exchange for payment, or
•  adult entertainment involving nudity, indecent acts or sexual activity in exchange for payment or ancillary to other goods or services.
To prohibit using premises for any of the above uses if those uses are prohibited under an environmental planning instrument or require planning approval and no approval has been granted.
To comply with the conditions of a planning approval for the use of premises as a brothel.
When premises are being used for a purpose that is prohibited.
When premises are being used for a purpose for which a planning approval is required but has not been obtained.
When premises are being used in contravention of a planning approval.
The owner of the premises, or the person using premises for the purpose specified in the order.
The person entitled to act on a planning approval who is acting in contravention of the approval.
Any person apparently in control of, or managing, or assisting in the control or management of, the brothel.
Part 4 Provisions relating to development control orders
1   Order may specify standards and work that will satisfy those standards
(cf previous ss 121P, 121R)
(1)  A relevant enforcement authority may give a development control order that does the following instead of specifying in the order the things the person to whom the order is given must do or refrain from doing:
(a)  specifies the standard that the premises concerned are required to meet,
(b)  indicates the nature of the work that, if carried out, would satisfy that standard.
(2)  The relevant enforcement authority may, in any such development control order, require the owner or occupier to prepare and submit to the relevant enforcement authority, within the period 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.
(3)  The relevant enforcement authority must, within 28 days after those particulars of work are submitted to the authority:
(a)  accept the particulars without modification or with such modifications as the authority thinks fit, or
(b)  reject the particulars.
(4)  If the relevant enforcement authority accepts the particulars of work without modification, the authority must as soon as possible order the owner to carry out that work.
(5)  If the relevant enforcement authority accepts the particulars of work with modifications or rejects the particulars, or if an owner fails to submit particulars of work as required under this clause, the authority must:
(a)  prepare, within 3 months after the acceptance, rejection or failure, particulars of the work that the authority considers necessary to make provision for the matters specified in the order given to the owner, and
(b)  order the owner to carry out that work.
(6)  An order under this clause is not invalid merely because of the failure of the relevant enforcement authority that gave the order to accept or reject any particulars of work or prepare particulars of any work within the period required by this clause.
(7)  A relevant enforcement authority may recover from an owner as a debt the authority’s expenses of preparing particulars of work under this clause.
(8)  An order under this clause forms part of the development control order to which it relates.
2   Orders that make or are likely to make residents homeless
(cf previous s 121G)
(1)  If a development control order will or is likely to have the effect of making a resident homeless, the relevant enforcement authority proposing to give 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 relevant enforcement authority 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 relevant enforcement authority considers appropriate.
3   Orders affecting heritage items
(cf previous s 121S)
(1)  This clause 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 relevant enforcement authority must not give a development control order in respect of an item of the environmental heritage until after the authority has considered the impact of the order on the heritage significance of the item.
(3)  A relevant enforcement authority must not give a development control order in respect of an item of the environmental heritage to which subclause (1) (a) applies until after the authority has given notice of the proposed order to the Heritage Council and has considered any submissions duly made by the Heritage Council.
(4)  The Heritage Council may, by instrument in writing, exempt a relevant enforcement authority from the requirements of subclause (3), either unconditionally or subject to conditions. Any such exemption may be varied or revoked by the Heritage Council by further instrument in writing.
(5)  The Heritage Council may make a submission about a proposed order:
(a)  within 28 days after it is given notice by the relevant enforcement authority, or
(b)  if, within 28 days after it is given notice by the relevant enforcement authority, the Heritage Council requests that a joint inspection of the item be made, within 28 days after the joint inspection is made.
(6)  This clause does not apply to:
(a)  a general order not to demolish or cease demolishing a building if given in an emergency, or
(b)  a general order of a kind prescribed by the regulations, or
(c)  a brothel closure order.
4   Giving and taking effect of orders
(cf previous ss 121N, 121U)
(1)  A development control 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.
(2)  The copy of the development control order is to be accompanied by a notice stating:
(a)  that the person to whom the order is addressed may appeal to the Land and Environment Court against the order, and
(b)  the period within which an appeal may be made.
5   Reasons for orders to be given
(cf previous s 121L)
(1)  A relevant enforcement authority that gives a development control order must give the person to whom the order is addressed the reasons for the order.
(2)  The reasons may be given in the development control order or in a separate instrument.
(3)  The reasons must be given when the development control order is given, except in an emergency. In an emergency, the reasons may be given the next working day.
Part 5 Process for giving orders
6   Natural justice requirements
(cf previous s 121D)
(1)  Before giving a development control order, a relevant enforcement authority must comply with clauses 2, 8 and 9 and Part 7 of this Schedule.
(2)  Subclause (1) does not apply to the following development control orders:
(a)  a general order (under item 2, Part 1 of this Schedule),
(b)  a fire safety order (under item 2, Part 2 of this Schedule),
(c)  an order given, and expressed to be given, in an emergency,
(d)  an order given by the Minister or the Planning Secretary in connection with State significant infrastructure.
Note.
 Part 8 of this Schedule has special provisions relating to fire safety orders and Part 9 has special provisions relating to brothel closure orders.
7   Effect of compliance
(cf previous s 121E)
A relevant enforcement authority that complies with clauses 2, 8 and 9 and Part 7 of this Schedule is taken to have observed the rules of procedural fairness.
Part 6 Notices to be given
8   Notice to be given of proposed order to person who will be subject to order
(cf previous s 121H (1)–(3))
(1)  Before giving a development control order, a relevant enforcement authority must give notice to the person to whom the proposed order is directed of the following:
(a)  the intention to give the order,
(b)  the terms of the proposed order,
(c)  the period proposed to be specified as the period within which the order is to be complied with,
(d)  that the person to whom the order is proposed to be given may make representations to the relevant enforcement authority as to why the order should not be given or as to the terms of or period for compliance with the order.
(2)  The notice may provide that the representations are to be made to the relevant enforcement authority 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 to 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.
9   Notice to be given to other persons and bodies of proposed order
(cf previous s 121H (4)–(5))
(1) Notice to other consent authorities If a council proposes to give a development control 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.
(2) Notice to principal certifier If a council proposes to give a development control order in relation to building work or subdivision work for which the council is not the certifier, the council must give the principal certifier notice of its intention to give the order.
10   Notice of fire safety orders to be given to Commissioner of Fire and Rescue NSW
(cf previous s 121ZB)
A relevant enforcement authority must immediately give notice to the Commissioner of Fire and Rescue NSW after giving a fire safety order.
11   Notice of giving of complete works order
(cf previous s 121X)
A relevant enforcement authority must, on or as soon as practicable after the day on which the authority gives a complete works order, send a copy of the order to:
(a)  such persons (if any) as are, in the opinion of the authority, 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 clause.
12   Details of orders and notices to be given to councils
(cf previous s 121ZE)
(1)  A relevant enforcement authority (other than a council) who gives a notice or an order under this Part must immediately give a copy of the notice or order to the council.
(2)  The relevant enforcement authority, 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 relevant enforcement authority in relation to the notice or order.
Part 7 Representations concerning proposed orders
13   Making of representations
(cf previous s 121I)
(1)  A person who is given notice under clause 8 of the intention to give a development control order may make representations concerning the proposed order in accordance with the notice.
(2)  For the purpose of making the representations, the person may be represented by an Australian legal practitioner or agent.
14   Hearing and consideration of representations
(cf previous s 121J)
The relevant enforcement authority that intends to give the development control order or the nominated person is required to hear and to consider any representations made under this Part.
15   Procedure after hearing and consideration of representations
(cf previous s 121K)
(1)  After hearing and considering any representations made concerning the proposed development control order, the relevant enforcement authority 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 a development control order in accordance with modifications made to the proposed order, the relevant enforcement authority is not required to give notice under this Part of the proposed order as so modified.
Part 8 Special provisions relating to fire safety orders
16   Powers of fire brigades
(cf previous s 121ZC)
(1)  An authorised fire officer who inspects a building in accordance with section 9.32 (Fire brigades inspection powers) may give:
(a)  a fire safety order (under item 1) if the order does not require the carrying out of any structural work to the premises concerned, or
(b)  a fire safety order (under item 2) if the premises concerned are a place of shared accommodation, or
(c)  a fire safety order (under item 3) if a person to whom an order under paragraph (a) or (b) is given has failed to comply with the order.
(2)  Clauses 2, 6, 8, 9 and 31 and Part 7 of this Schedule do not apply to a development control order given in accordance with this clause in circumstances which the authorised fire officer believes constitute an emergency or a serious risk to safety.
(3)  For the purpose of giving such a development control order, an authorised fire officer may exercise such of the powers of a relevant enforcement authority under this Part as are specified in the fire officer’s authorisation under this clause.
(4)  In exercising a power under this Part, an authorised fire officer may be accompanied and assisted by a police officer.
(5)  An authorised fire officer must forward a copy of a development control order given in accordance with this clause to the relevant council.
17   Inspection reports by fire brigades
(cf previous s 121ZD)
(1)  If the Commissioner of Fire and Rescue NSW carries out an inspection of a building under section 9.32 (Fire brigades inspection powers), 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 clause 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 a fire safety order.
(3)  A reference in subclause (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 subclause.
(4)  A council must give notice of a determination under this clause to the Commissioner of Fire and Rescue NSW.
Part 9 Special provisions relating to brothel closure orders
18   Interpretation
(cf previous s 121ZR)
(1)  In this Part:
brothel closure order means a brothel closure order under Part 3 of this Schedule.
(2)  This Part has effect despite any other provision of this Schedule.
Note.
 Failure to comply with a brothel closure order is an offence (see section 9.37).
19   Procedure relating to making of brothel closure orders
(cf previous s 121ZR (2)–(4))
(1) Natural justice requirements not applicable A person who gives a brothel closure order is not required to comply with clauses 2, 8 and 9 and Part 7 of this Schedule.
(2) 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 planning approval is required but has not been obtained.
(3) 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.
20   Compliance with brothel closure orders
(cf previous s 121ZR (5) and (7))
(1) 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.
(2) 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)  in a case where 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.
21   Appeals
(cf previous s 121ZR (8))
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 Part 8 of this Act 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).
Part 10 Modification and revocation of orders
22   Modification of orders
(cf previous s 121ZF)
(1)  A relevant enforcement authority that gives a development control order may, at any time, modify the order (including a modification of the period specified for compliance with the order).
(2)  Except in the case of a development control order given by the Minister or the Planning Secretary, a modification may be made only if the person to whom the order is given agrees to that modification.
23   Revocation of orders
(cf previous s 121ZG)
(1)  A development control order given by the Minister may be revoked by the Minister at any time, and an order given by the Planning Secretary may be revoked by the Minister or the Planning Secretary at any time.
(2)  A development control order given by a consent authority may be revoked by the consent authority at any time.
(3)  A development control order given by a council may be revoked by the council at any time.
(4)  A development control order given by an authorised fire officer may be revoked by an authorised fire officer at any time.
24   Minister may revoke or modify a council’s order
(cf previous s 121ZH)
(1)  The Minister may revoke or modify a development control order given by a council.
(2)  Notice of the revocation or modification must be given to the council and the person to whom the development control 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 a development control order that is revoked or modified under this clause, 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 a development control order or in a separate notice.
25   Limitation on Minister’s orders
(cf previous s 121ZI)
The Minister must not take any action under clause 24 that is inconsistent with, or has the effect of revoking or modifying, a development control 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.
Part 11 Effect of orders and compliance with orders
26   Effect of order on successors in title
(cf previous s 121Y)
A development control 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.
27   Period for compliance with order
(cf previous s 121M)
(1)  A development control order must specify a reasonable period within which the terms of the order are to be complied with.
(2)  However, a development control 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.
28   Continuing effect of orders
(cf previous s 121ZQ)
(1)  A development control 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 clause does not apply to the extent that any requirement under a development control order is revoked.
29   Development consent or approval not required to comply with order
(cf previous s 121O)
A person who carries out work in compliance with a requirement of a development control order does not have to make an application under this Act for consent or approval to carry out the work.
30   Compliance with order under clause 1 (2)
(cf previous s 121Q)
A person complies with a requirement of an order under clause 1 (2) by submitting to the relevant enforcement authority that 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.
31   Compliance with orders by occupiers or managers
(cf previous s 121Z)
If an occupier or manager complies with a development control order, the occupier or manager may (unless the occupier or manager has otherwise agreed):
(a)  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
(b)  recover the cost (and that interest) from the owner as a debt in any court of competent jurisdiction.
32   Occupier of land may be required to permit owner to carry out work
(cf previous s 121ZA)
(1)  A relevant enforcement authority that gives a development control order may order the occupier of any land to permit the owner of the land to carry out specified work on the land, being work that is, in the relevant authority’s opinion, necessary to enable the requirements of this Act or the regulations or of any development control order 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)  If an order under this clause is in force, the owner of the land concerned 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 development control order, that is caused by the occupier of the land refusing to permit the owner to carry out the work specified in the order.
(4)  Subclause (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.
33   Failure to comply with order—carrying out of work by consent authority
(cf previous s 121ZJ (1) (10–(12))
(1)  A relevant enforcement authority that gives a development control 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) if the person to whom the order was given fails to comply with the terms of the order.
(2)  The relevant enforcement authority may exercise the relevant authority’s functions under this clause irrespective of whether the person required to comply with the order has been prosecuted for an offence against this Act.
(3)  In any proceedings before the Land and Environment Court that are brought by a relevant enforcement authority that gave a development control order to a person as a result of the person’s failure to comply with the order, the Court may, at any stage of the proceedings, order the relevant enforcement authority to exercise the authority’s functions under this clause. Having made such an order, the Court may continue to hear and determine the proceedings or may dismiss the proceedings.
(4)  If the Minister or the Planning Secretary gave the development control order, the Minister’s or Planning Secretary’s functions under this clause may be exercised by the Planning Ministerial Corporation.
34   Recovery of expenses by relevant enforcement authority for carrying out work
(cf previous s 121ZJ (7))
(1)  If a relevant enforcement authority takes action under clause 33 to give effect to a development control order by demolishing a building, the authority may remove any materials concerned.
(2)  The relevant enforcement authority may sell those materials but only if the relevant authority’s expenses in giving effect to the terms of the development control order are not paid to the authority within 14 days after removal of the materials.
(3)  If the proceeds of such a sale exceed the expenses incurred by the relevant enforcement authority in relation to the demolition and the sale, the relevant authority:
(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 relevant enforcement authority:
(a)  may retain the proceeds, and
(b)  may recover the deficiency (if any) together with the authority’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)  A relevant enforcement authority that carries out work under clause 33 in relation to development for which an amount of security has been provided to the authority:
(a)  may be recompensed for the work from the security if the security is more than the costs of carrying out the work, and
(b)  must pay any surplus remaining to the person entitled to it on demand.
(7)  Any expenses incurred under this clause by a relevant enforcement authority that gave a development control order, together with all associated costs, may be recovered by the authority in any court of competent jurisdiction as a debt due to the authority by the person required to comply with the order.
(8)  The expenses are to be reduced by the amount of any proceeds of any sale under this clause or the amount of any security provided in respect of development to which the order relates.
(9)  Nothing in this clause affects the owner’s right to recover any amount from any lessee or other person liable for the expenses concerned.
(10)  The recovery of costs and expenses by a relevant enforcement authority under this clause does not include the costs and expenses of court proceedings, but nothing in this clause prevents the authority from receiving costs as between party and party in respect of those proceedings.
35   Enforcement of orders by cessation of utilities
(cf previous s 121ZS)
(1)  This clause applies in relation to a failure to comply with any of the following development control orders:
(a)  a brothel closure order,
(b)  a stop use order in respect of such classes of residential, tourist or other development as are prescribed by the regulations.
(2)  In this clause, the Court means the Land and Environment Court and, in relation to a brothel closure order, includes the Local Court.
(3)  If a person fails to comply with a development control order to which this clause applies, the 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.
(4)  A utilities order is not to be made in respect of a failure to comply with a development control order that is a stop use order unless the Court is satisfied that the failure has caused or is likely to cause a significant adverse impact on health, safety or public amenity.
(5)  A utilities order may apply to the whole or part of the premises.
(6)  A utilities order ceases to have effect on the date specified in the utilities order, or 3 months after the order is made, whichever occurs first.
(7)  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 development control 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.
(8)  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.
(9)  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 development control 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 health, safety or public amenity will be adversely affected by the order,
(e)  any other matter the Court thinks appropriate.
(10)  A utilities order must not be made for premises, or any part of premises, used for residential purposes unless the regulations authorise the making of a utilities order.
(11)  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 the premises, concerned.
(12)  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 clause.
(13)  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 the premises (other than services related to the implementation of the order).
(14)  The Court may make a utilities order when it determines an appeal against a development control order, if subclauses (7) and (8) have been complied with.
36   Special provision relating to tourist parks, residential parks and camping grounds
Any order that may be given to a person under this Schedule to do or refrain from doing a thing in relation to a premises or building in a tourist park, residential park or camping ground may also be given to a person apparently in charge of or managing the tourist park, residential park or camping ground who has authority to do or refrain from doing the thing.
Part 12 Compliance cost notices
37   Compliance cost notices
(cf previous s 121CA)
(1)  A relevant enforcement authority that gives a development control order to a person may also serve a compliance cost notice on the person.
(2)  A compliance cost notice is a notice in writing requiring the person on whom it is served to pay all or any reasonable costs and expenses incurred by the relevant enforcement authority in connection with:
(a)  monitoring action under the development control order, and
(b)  ensuring that the development control order is complied with, and
(c)  any costs or expenses relating to an investigation that leads to the giving of the development control order, and
(d)  any costs or expenses relating to the preparation or serving of the notice of the intention to give the development control order, and
(e)  any other matters associated with the development control order.
(3)  A compliance cost notice is to specify the amount required to be paid and a reasonable period within which the amount is to be paid or, if the regulations prescribe the period to be allowed for payment, that period.
(4)  The relevant enforcement authority may recover any unpaid amounts specified in a compliance cost notice as a debt in a court of competent jurisdiction.
(5)  If the person on whom a compliance cost notice is served complies with the notice but was not the person who was responsible for the situation giving rise to the issue of the notice, the cost of complying with the notice may be recovered by the person who complied with the notice as a debt in a court of competent jurisdiction from the person who was responsible.
(6)  The regulations may make provision for or with respect to the following:
(a)  the issue of compliance cost notices,
(b)  the form of compliance cost notices,
(c)  limiting the amounts that may be required to be paid under compliance cost notices or the matters in respect of which costs and expenses may be required to be paid under those notices.
Part 13 Miscellaneous
38   Combined orders
(cf previous s 121T)
A person who gives a development control order may include 2 or more orders in the same instrument.
39   Orders may be given to 2 or more persons jointly
(cf previous s 121V)
If appropriate in the circumstances of the case, a development control order may direct 2 or more people to do the thing specified in the order jointly.
40   Notice in respect of land or building owned or occupied by more than one person
(cf previous s 121W)
(1)  If land, including land on which a building is erected, is owned or occupied by more than one person:
(a)  a development control 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 a development control 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 Part 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 a development control order.
41   Application of Local Government Act 1993 certificate provision
Section 735A of the Local Government Act 1993 applies to orders and notices under this Schedule in the same way as it applies to notices under that Act.