Background
Canterbury-Bankstown Council issued a Development Control Order (a stop work order) on 8 August 2025 against M O’Neill regarding unauthorised building work at 2 Ellesmere Street, Panania. The work had been carried out in contravention of the Environmental Planning and Assessment Act 1979 (NSW)—specifically, it did not comply with approved plans issued under a Complying Development Certificate and no alternative development approval or consent had been obtained. O’Neill, the property owner, appealed the order under section 8.18 of the EPA Act. The parties participated in a conciliation conference held on 29 June 2026 under the Land and Environment Court Act 1979 (NSW), where they reached an agreement on modified terms.
The Court’s Holding
Justice Gray upheld O’Neill’s appeal but, pursuant to section 8.18(4)(b) of the EPA Act, modified the Development Control Order rather than revoking it. The modification clarified which building works were subject to the stop work order and adjusted timing provisions to allow O’Neill reasonable opportunity to obtain development consent for the non-compliant works. The Court found that the Council had proper authority to issue the stop work order because the parties had agreed that works were carried out contrary to the EPA Act. The modification fell within the Court’s broad appellate powers under section 8.18(4), which allow modification of development control orders on appeal.
Rather than determining the merits of disputed issues, the Court gave effect to the parties’ negotiated agreement, disposing of the proceedings in accordance with the decision reached at the conciliation conference and setting out the modified terms in writing as required by section 34(3) of the Land and Environment Court Act.
Key Takeaways
- Development control orders for non-compliant building work can be upheld on appeal even where the appeal succeeds, if the order is modified to address clarity or timing concerns
- Conciliation conferences can produce workable compromises that satisfy enforcement objectives while providing regulated pathways to compliance
- Courts have broad discretion under section 8.18(4) of the EPA Act to modify development control orders on appeal, not merely to revoke or uphold them
Why It Matters
This decision illustrates that development control orders are not all-or-nothing propositions in New South Wales land and environment law. Although the Council’s enforcement action was justified and upheld, the order itself could be refined through agreement to improve clarity and workability. For property owners and developers facing stop work orders, the case shows that appeals can succeed in obtaining meaningful modifications even when the underlying order is sustained. For local councils, it confirms the strength of enforcement powers under the EPA Act while demonstrating that collaborative outcomes negotiated through conciliation can serve compliance objectives more effectively than protracted litigation over whether orders should stand unchanged.