The Requirement for Certainty and Specificity in Building Orders and Direction Notices

A Closure Notice issued by the Department of Water and Environmental Regulation was found invalid due to it failing to state, with sufficient specificity, what the recipient of the notice was required to do. For local governments who issue Direction Notices pursuant to s.214 of the Planning and Development Act 2005, or Building Orders pursuant to s.110 of the Building Act 2011, this has potential ramifications.

In Bio-Organics Pty Ltd v The Chief Executive Officer, Department of Water and Environment Regulations [2018] WASC 236, the critical question was whether the Notice issued met the degree of clarity and certainty of expression required for a thing to be ‘specified in the closure notice’, as required by s.68A(7) and (8) of the Environmental Protection Act 1986.

The Court recognised that there is no general principle that uncertainty in an executive instrument spells legal invalidity, although in some cases, certainty of expression may be a pre-condition to the valid exercise of the power.  The Court found s.68A required certainty of expression as a condition of its exercise.

The Court considered the word “specify” in s.68A called for considerable precision of statement (Re Lawrence; Ex parte Goldbar Holdings Pty Ltd (1994) 11 WAR 549).  Section 68A required that a Closure Notice must unambiguously identify and make clear what must be done.  One of the major issues affecting the validity of the Closure Notice was that although the problems with the site were identified, the Notice did not specify what the recipient of the Notice, or others bound by it, were required to do.

A further factor affecting the validity of the Closure Notice was that the directions were required to be inspected and certified by an independent suitably qualified professional.  The Closure Notice did not identify who this would be, leaving the recipient to judge who might be suitably qualified.  The Court referred to Mailey v Sutherland Shire Council [2017] NSWCA 343 where the Notice in issue identified the relevant professional group to be engaged – such as a Structural Engineer, Geotechnical Engineer or Surveyor.  The Court found the Notice did not identify who a suitably qualified professional would be, and its failure to do so affected certainty surrounding the management and on-going monitoring of the site.

Certainty and Specificity in Building Orders and Direction Notices

To avoid a challenge on the grounds of validity, local governments should ensure that Building Orders and Direction Notices state, with sufficient clarity, the steps required to be taken for compliance.

In relation to the content of a Building Order, Section 112 of the Building Act 2011 may direct a person to do specified building or demolition work (s.112(c)), to take or not take specified action (s.112(e)) or take specified incidental action (s.112(h)).  The works required, or the subject action should be identified, so as to make it clear what is required.

The same goes for Direction Notices issued pursuant to s.214 of the Planning and Development Act 2005.  Although the word “specify” does not largely appear in the section (except for s.214(6)), local governments should take care to clearly describe:

  • the development that is required to be stopped and not recommence (s.214(2));
  • the development required to be removed, pulled down, taken up or altered (s.214(3)(a); and
  • how the land is to be restored (s.214(3)(b).

Unlike the provisions in the Environmental Protection Act 1986, recipients of Building Orders and Direction Notices have a right of review to SAT, who may vary the terms of the Notice in order to make it clear to the recipient what is required.  Nevertheless, care should be taken to avoid challenges in the first place.

The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.