A “Written Direction Notice” (WDN) is a relatively new measure introduced under the Environmental Planning and Assessment Act 1979 (EPA Act) that gives powers to private principal certifiers to make certain compliance actions mandatory. The intention is to give a person issued with a WDN an opportunity to remedy the non-compliance or potential non-compliance.
A non-compliance can relate to works not carried out in accordance with a development consent or complying development certificate, including any approved plans and development consent conditions. These might be brought to the private principal certifier’s attention by neighbours, referrals from councils, or site observations.
WDNs must be issued within two days and should include:
- a description of the work or works that has resulted or would result in the non-compliance;
- the action that must be taken to remedy the non-compliance; and
- the timeframe within which the non-compliance must be remedied.
A non-compliance does not include matters identified during a critical stage inspection (CSI). The current requirement for minor issues to be rectified before a CSI is approved remain the same.
Private principal certifiers are no longer able to issue a Notice of Intention to Give an Order however authorities can still issue Orders. An order commonly issued in circumstances where a WDN has not been complied with is a “Development Control Order” (DCO).
A DCO a is essentially an order issued by enforcement authorities (ie – local councils) that requires a person to do something, stop doing something, or comply with an existing approval. These may include: Stop Works Orders; Stop Use Orders; Fire Safety Orders Compliance Orders; Demolish Works Orders or Stop Demolition Orders.
The relevant authority is usually required to provide notice of their intention to issue a DCO, however this is not always required. If notice of a DCO is given, the person issued will be given an opportunity to make submissions in relation to the proposed order.
Unless in the case of emergencies, the recipient of an DCO is required to be provided with the detailed reasons as to why a DCO is given. Prior to issuing a DCO, an authority must conduct an inspection of the site and be satisfied of the non-compliance before formalising and serving the DCO on the person responsible.
A DCO can be appealed to the Land and Environmental Court (generally within 28 days). If a recipient of a DCO intends to appeal, it is critical they do so within time otherwise they may have no other recourse available to challenge the DCO.
A failure to comply with a DCO can be considered a criminal offence. An enforcement authority may issue a Penalty Infringement Notice which can carry substantial files ($5 million and a further $50,000 each day the offence continues for a company or $1 million and a further $10,000 each day the offence continues for an individual). A failure to pay fines can also attract further penalties including suspensions of licenses.