The case of Kingfisher Properties Pty Limited v Northern Beaches Council [2025] NSWLEC 39 involved an appeal to the NSW Land and Environment Court against a $100,000 fine imposed by the Local Court for failing to comply with a development control order (DCO), pursuant to s 9.37(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act). Notably, the Court made significant observations regarding the history of the DCO’s lawfulness, which, in this matter, contributed to a substantial reduction in the penalty.

The DCO related to a carport that had been constructed without development consent. Kingfisher was initially issued with a penalty infringement notice for failing to comply with the DCO and elected to have the matter determined by the Local Court. 

The NSW Land and Environment Court significantly reduced the fine to $9,000, finding that "the offence committed by Kingfisher is at the very low end of the range of objective seriousness" (at [50]). One of the factors contributing to this conclusion (amongst other factors) was that some of the terms of the order that had not been complied with "ought not to have been issued" (at [37]) because they "went beyond what a Demolish Works Order can require" (at [18]). 

Extraordinarily, Chief Justice Preston of the NSW Land and Environment Court found that the circumstances did not exist for the DCO to have been issued (at [11]), and that the terms of the DCO were also outside power (at [12]). 

However, despite those deficiencies with the DCO, this was an appeal against sentence only—not a challenge to the conviction, as the appellant had pleaded guilty to the offence in the Local Court. 

Chief Justice Preston at [31]-[32] explained that, in sentencing, the Court cannot go behind a guilty plea:

"On 11 September 2024, Kingfisher appealed to this Court against the severity of the sentence. It did not appeal against its conviction for the offence as it had pleaded guilty to the offence in the Local Court. This Court must deal with the appeal against sentence on the basis that Kingfisher has committed the offence of failing to comply with the identified terms of the Demolish Works Order, notwithstanding that that order is in large parts outside power. 

…

Because of Kingfisher's guilty plea, however, this Court must sentence Kingfisher for having committed an offence by failing to comply with these requirements of the Demolish Works Order. Nevertheless, the fact that these requirements were outside power is relevant to this Court's assessment of the objective seriousness of the offence. It is less objectively serious to fail to comply with requirements of a development control order that are outside power than it is to fail to comply with requirements of a development control order that are within power." (Emphasis added).

DCOs are issued under section 9.34(1) of the EP&A Act, and the specific types of orders that may be given are itemised in the table at Schedule 5 to the EP&A Act.

This judgment serves as a useful reminder of the need to carefully check the table in Schedule 5 when issuing or receiving a DCO.

If a DCO is issued without properly complying with the parameters set by Schedule 5, it may be susceptible to invalidation. However, in these circumstances Kingfisher did not challenge the validity of the order. 

For each type of order, the table specifies:

• The type of order, i.e. an order "To do what?";

• The circumstances that must exist before the order can be issued: "When?"; and

• Who the order can be given to: "To whom?"

When a DCO is issued, it will specify what type of order it is, which must correspond to one of the categories listed in the table at Schedule 5. The item of the table specifies what the order can require someone to do. A DCO cannot require something outside the scope of what is described in the "To do what" column. 

In this case, originally the DCO issued was under item 11 (a compliance order). Kingfisher appealed against the issue of the DCO, and at a conciliation conference the parties agreed that it be substituted for a demolish works order under item 3 of the table at Schedule 5: see [14] of the judgment. 

However, the demolish works order required works which were beyond the scope of a demolish works order, which can only be an order "To demolish or remove a building". In addition to requiring the removal of the carport roof, the terms of the demolish works order also purported to require:

• The construction of a replacement roof with guttering; 

• the submission of a works as executed survey plan for the building work required to be constructed; and

• the certification of any stormwater drainage works required to be constructed.

Chief Justice Preston also noted at [31] that in relation to requiring a security bond:

"There might be power for a Demolish Works Order to require a security bond, but only for the demolition of the unlawfully erected carport and not for the construction of new building work" (Emphasis added).

Column 2 of the table at Schedule 5 then lists the circumstances that need to exist for that type of order to be issued. 

In this case, Chief Justice Preston noted in relation to the demolish works order, that none of the circumstances existed for that DCO to have been issued, being:

• "A planning approval has not been complied with." – as no planning approval existed;

• "Building has been unlawfully erected and does not comply with relevant development standards." – because the relevant development standards for a carport were complied with, noting that those standards are not the standards from the Codes SEPP: see [9] of this judgment; and

• "Authorised subdivision works, or works agreed to by the applicant, have not been carried out."  – subdivision was not relevant to the carport in this case.

The third column ("To whom?") was not in issue in this case. 

It is always necessary to check that an order is being issued to the correct person. 

Some orders contain multiple subtypes in column 1 (e.g. item 11 – compliance order – where there are three different types of orders “To do what”). It is necessary to consider the correct row within the item to determine the correct person to whom an order can be given. 

This judgment highlights the importance for local councils of selecting the appropriate orders to remedy unauthorised works using DCOs, particularly where those works already comply with relevant development standards. For owners or occupiers it is essential to consider the enlivening powers for the issue of the order, and to assess what is being required against the purported exercise of the relevant order. It is clear from the terms of Schedule 5 and from this judgment that a demolish works order cannot be used as a means of requiring works to be carried out. 

However, because the works in this case already complied with the relevant development standards (see [9]), an order "To do whatever is necessary so that any building or part of a building that has been unlawfully erected complies with relevant development standards" was not appropriate.

That aside, the key point from this judgment is the importance of thoroughly reviewing all columns of the table at Schedule 5 to the EP&A Act when issuing or receiving a DCO, to ensure it has been properly issued. 

DCOs can be appealed, and their validity can also be challenged in the NSW Land and Environment Court. Where an order is flawed, and that flaw leads to a penalty for non-compliance, this case demonstrates that the penalty may be significantly reduced if the issues with the order are established at a later stage. If you would like to discuss any of the content above or require support on related matters, please reach out to our PGIE team.