Local Councils have powers to take regulatory action for unlawful activities or breaches of various Acts and Regulations. This power is usually derived from the Local Government Act 1993, the Environmental Planning and Assessment Act 1979 or the Protection of the Environment Operations Act 1997. Other Acts and Regulations are available to Council, and the specific legislation relied on will depend on the alleged offence. The regulatory action taken by Council varies according to the circumstances, but may include the service of a notice, an order, a penalty infringement notice, or the instigation of legal proceedings in the Local Court or the Land and Environment Court. Council usually has the discretion as to which enforcement option to take, depending on the seriousness of the alleged offence.
This article deals specifically with show cause notices and stop work orders.
What is a show cause notice?
A show cause notice is usually the first step in Council’s enforcement process for alleged non-compliant building works or development offences. It sets out the details of an alleged offence, usually in broad terms, and invites the landowner to respond to the allegations and, where appropriate, remedy any non-compliant structures or development offences.
Show cause notices are generally issued for unsafe or unapproved buildings or structures, a property being used in a manner that does not have the required development approval or because of a breach of development approval conditions.
What should I do if I receive a show cause notice?
Firstly, do not ignore the notice. Whilst you are not legally obliged to respond to the notice, if no response is received, Council will often proceed further with its enforcement process against you. It is important that you diarise the date your response to the notice must be submitted by. If the issues are complex and you do not believe you will be able to submit a response by the due date, you should immediately contact Council and request an extension to the response period to allow you sufficient time to investigate, seek advice, prepare, and submit a response.
The next step is to either remedy the non-compliance and advise Council of the steps being taken or engage an expert (such as a planner or lawyer) to give you advice on your rights, the validity of the show cause notice and whether you can challenge it. If, for example, the notice alleges defective and dangerous works, you may be able to engage an expert (such as an engineer) to investigate and provide a report that the works are structurally sound. You would then submit this report to Council and assert that the show cause notice is not valid, and no further action is warranted.
If Council is satisfied with your response to a show cause notice, they will not take further action. If they are not satisfied, they may issue further correspondence or proceed with their enforcement process.
What is a stop work order?
A stop work order is an order issued by Council that requires the landowner to cease certain works that are being undertaken on the land. A common example is works being undertaken that have not yet received development approval, such as the erection of an extension on a dwelling house where development approval is required but has not been sought.
Failure to comply with a stop work order is an offence. Following the issuing of a stop work order, Council can proceed with further enforcement actions, such as issuing a demolition order and enforcing such a demolition order through civil proceedings in the Class 4 jurisdiction of the Land and Environment Court. These proceedings can be costly, and the landowner may ultimately be responsible for Council’s legal costs in commencing and running the proceedings.
Council can also pursue criminal proceedings through the Local Court or the Class 5 jurisdiction of the Land and Environment Court if a stop work order is not complied with. Criminal proceedings incur significant monetary penalties and can result in a criminal conviction being recorded. Council can pursue both civil and criminal proceedings.
What should I do if I receive a stop work order?
Again, do not ignore the stop work order. The order should detail the works to be stopped, and the period for compliance (which may be immediately). Your response to a stop work order will depend on your circumstances and the works that have been completed, and you should immediately seek expert advice from a planner or a lawyer. They will be able to advise you on a suitable response to the stop work order and engage with Council on your behalf in an attempt to resolve the matter.
Some orders may be resolved by the landowner applying for development consent for the prospective use of any unauthorized works and a building information certificate. A building information certificate is a confirmation from Council that Council will not issue an order, or take proceedings for an order or injunction, for the repair, demolition, alteration, addition or rebuilding of the works. A building information certificate remains in force for 7 years.
Are there other orders Council can make?
Yes. Schedule 5 of the Environmental Planning and Assessment Act 1979 details the development control orders a Council may make. In addition to a stop work order, these include (but are not limited to) a stop demolition order, a restore works order, a repair order, a compliance order, and a complete works order.
Expert advice sought early on is often crucial in resolving any such orders with Council. Notices and orders are not a case of “ignorance is bliss” – ignorance may result in serious penalties, financial implications, and strict orders as to the works and development.
This article was co-written by Koreen Partridge, Senior Associate.