Kingfisher Properties Pty Limited v Northern Beaches Council [2025] NSWLEC 39
Councils need to be very careful when issuing Development Control Orders following the decision in Kingfisher Properties Pty Limited v Northern Beaches Council.
Kingfisher Pty Ltd (‘Kingfisher’) built a carport at a residential property in Sydney without obtaining development consent. A complaint was made by a neighbour regarding view loss, which resulted in Council issuing a Development Control Order (‘DCO’).
Kingfisher appealed the DCO to the Land and Environment Court. At conciliation, Kingfisher and Council reached an agreement for an Amended DCO which required, inter alia, the ridgeline of the carport to be reduced, guttering to be installed on the carport, a $1,000 bond to be paid to Council and engineering certification for the carport to be provided to Council within 4 months.
Kingfisher reduced the height of the ridgeline and provided engineering certification to Council within the 4 month timeline, but failed to install guttering or pay the deposit. Kingfisher instead provided Council with reports to say that there was no utility in installing guttering on the carport as the rainwater runoff from the roof already fell into the existing drainage system.
Council issued Kingfisher with a Penalty Notice of $6,000 for four breaches of the Amended DCO being:
a. Failure to pay the security bond to Council;
b. Failure to install guttering;
c. Failure to provide a stormwater drainage certificate;
d. Failure to provide a works as executed plan (which in fact, had already been provided to Council).
Appeal of the Penalty Notice to the Local Court
Kingfisher appealed the Penalty Notice to Manly Local Court. Prior to the hearing, Kingfisher:
a. Installed guttering;
b. Provided a stormwater drainage certificate to Council;
c. Obtained a Building Information Certificate;
d. Obtained Development Consent for the use of the carport.
Notwithstanding these facts, Council argued that Kingfisher had committed an offence in the mid-range of objective seriousness.
Following the hearing, the Local Court imposed a $100,000 fine on Kingfisher for not complying with the terms of the Amended Development Control Order.
Class 6 Appeal to the NSW Land and Environment Court on Severity of Sentence
Kingfisher appealed against the severity of the sentence imposed by the Local Court to the Land and Environment Court.
Instead of the $100,000 fine, the Land and Environment Court issued a $9,000 fine as Preston CJ found that:
1. The DCO and Amended DCO were issued outside of power by Council and the Land and Environment Court;
2. There was no environmental harm;
3. There was no foreseeability of harm;
4. There was no financial gain by Kingfisher;
5. The offence was at the very low end of objective seriousness;
6. Kingfisher showed remorse;
7. Kingfisher had a low likelihood of reoffending.
The Court also took into account that Kingfisher’s guilty plea, which reduced the fine by a further 10%.
Takeaways for Councils when issuing DCOs
The importance of the case relates to the Court’s analysis of the DCO and Amended DCO as being issued by Council and the Land and Environment Court outside the powers of the Environmental Planning and Assessment Act 1979 (‘EP&A Act’).
The original DCO was issued under Item 11 of Schedule 5 of the EP&A Act requiring Kingfisher to comply with a planning approval or development standards.
When the DCO was appealed, the case went to a Class 1 conciliation conference at which, the parties reached an agreement for Kingfisher to carry out certain works (including lowering the ridgeline of the carport to facilitate the neighbour’s view loss and installing gutters and other minor items). The Court agreed to the substitution of the DCO with a new DCO (‘Amended DCO’) under Item 3 of Schedule 5 of the EP&A Act for the demolition of works.
During the Class 6 proceedings, Preston CJ reviewed both the DCO and the Amended DCO and found that both were issued outside of power as:
a. the DCO related to a planning approval and development standard that did not exist (Item 11); and
b. the Amended DCO required new works to be undertaken, which cannot form part of a demolition order (Item 3).
Councils need to be careful when drafting DCOs to ensure that there is full compliance under the EP&A Act. Councils must look carefully at the works required to see which Schedule 5 item the DCO falls within before issuing any DCO. A failure by Council to adhere to the EP&A Act exposes Councils DCOs to challenges under class 4 proceedings including the usual costs orders, if the challenger is successful.
David Newhouse, partner at Newhouse & Arnold Solicitors represented Kingfisher at the Class 6 appeal in the NSW Land and Environment Court. David is an experienced solicitor and former barrister practicing in the Land and Environment Court with over 25 years of experience in this jurisdiction. For further enquires please contact David@newhousearnold.com.au
