Received a “Notice of Intention to Give a Development Control Order” from Council? Here’s what to do next (NSW-focused)

Getting a letter from council with words like “Notice of Intention” and “Development Control Order” can feel like you’re already in trouble. The key thing to know is this:

A Notice of Intention is usually not the Order itself. It’s the formal “heads up” that council intends to issue an Order — and it’s also your opportunity to respond, correct the record, negotiate a practical outcome, or resolve the issue before it escalates.

This post is general information, written with NSW processes in mind (because “development control orders” sit in the NSW planning framework). If you’re outside NSW, the idea is similar, but the legislation and steps may differ.

What you’ve been given (in plain English)

In NSW, before giving most development control orders, the enforcement authority must give you a notice that states:

• they intend to give the order
• the terms of the proposed order
• the proposed compliance timeframe
• that you may make representations about why the order shouldn’t be given, or about the terms/timeframe. That’s exactly what a “Notice of Intention to Give a Development Control Order” is designed to do.

First: don’t ignore it (even if you think council is wrong)

Ignoring it is one of the few moves that reliably makes things worse.

If council does end up issuing an Order, you must comply with it (unless it’s changed/revoked or a court outcome says otherwise). In NSW, failing to comply with a development control order is an offence.

Also, if a person doesn’t comply, the legislation allows the authority to do what’s necessary to give effect to the Order (including carrying out work) and then recover costs as a debt in certain circumstances.

Step 1: Read the notice like a checklist and diary the dates

Go through your notice and highlight:

• The reference number / file number (you’ll need it on every email and letter).
• What council says the issue is (e.g., “not in accordance with approved plans,” “works without approval,” “breach of consent conditions”).
• What order they intend to give (for example, an Order No. 10 “Restore Works” is a common one, requiring premises to be restored to the condition before unlawful works occurred).
• What work they want done (specific actions, dimensions, materials, removal, reinstatement, screening, etc.).
• The deadline for your response/representations (this is crucial).
• The proposed compliance timeframe (e.g., “X days from date of the Order, if given”).

Step 2: Work out whether this is a paperwork problem, a building problem, or both

Most of these cases fall into one of three buckets:

1) Council is right (the work is not approved / not per plans)

Then you’re choosing between:

• fixing the work (to match what’s approved), or
• seeking approval to keep it 45 Holt Rd Windowe).

2) Council’s records are incomplete

Sometimes approvals exist but council can’t locate them quickly (old files, strata records, certifier documents, lost stamped plans, etc.). Your job is to produce the evidence.

3) A mix

Partially compliant work + missing paperwork + unclear as-built documentation is common.

Step 3: Gather your evidence before you write back

Create a folder (digital + printed) and collect:

• The Development Consent (DA determination) and conditions
• The approved stamped plans and any amended plans
• Any modification approvals (e.g., DA modification approvals)
• Construction Certificate / Occupation Certificate paperwork (if relevant)
• Certifier correspondence, inspection reports, and compliance sign-offs
• A simple timeline of what happened and when (who did the work, when it was installed)
• Current photos, and (if helpful) a marked-up plan showing what exists vs what’s approved This step matters because your written representations will be much stronger if they’re evidence-led, not emotional.

Step 4: Choose a strategy (there are usually 4)

Strategy A — Show council it’s already compliant

If you can demonstrate the work matches approved plans/conditions, your representations should:

• point to the exact plan sheet / condition
• attach the evidence
• request the matter be closed

Strategy B — Fix it (comply)

If the work is clearly non-compliant, sometimes the fastest, cheapest outcome is to propose:

• a scope of works
• who will do it
• a realistic timeframe
• and (if needed) an access plan (strata / neighbours) Useful NSW detail: if you carry out work in compliance with the requirement of a development control order, you generally don’t need to get separate development consent just to do that compliance work.
  (That doesn’t mean you can do different works unrelated to the Order — but it can remove a common “do I need another DA?” anxiety for straight compliance.)

Strategy C — Seek approval to keep the change

If you want to keep the altered work (because it’s expensive to undo, or you believe it’s acceptable), the path is usually to seek a formal approval pathway (often via a planning professional). Your representations can ask council to pause/escalate in a way that allows you to pursue that route, but you’ll want tailored advice here.

Strategy D — Negotiate better “terms” and/or more time

Even when you accept the issue, you can often negotiate:

• the exact technical solution (e.g., alternative privacy treatment)
• staging
• a longer compliance period NSW law explicitly contemplates representations about the terms and the compliance period.
  And orders can be modified later in certain circumstances (often with agreement).

Step 5: Write your “representations” (this is the moment to be strategic)

What “representations” are

They are your formal written response about:

• why the Order should not be given, and/or
• why the terms should change, and/or
• why the compliance period should change. You can have help: the legislation allows you to be represented by an Australian legal practitioner or agent when making representations.

The authority (or nominated person) must hear and consider representations, and then can decide to:

• issue the Order as proposed,
• issue a modified Order, or
• not issue an Order.

A simple structure that works

Keep it professional and easy to follow:

• Subject line: “Representations re Notice of Intention to Give a Development Control Order – [Your ref number]”

• Who you are: owner/occupier/agent (keep it factual)

• What you understand council alleges

• Your response, supported by evidence:compliance evidence or

• explanation of what happened (brief) plus your proposed fix/approval path

• What you are asking council to do:withdraw/not give the Order; or

• amend the Order terms; and/or

• extend the compliance period

• Attachments list

• Contact details and availability

Tone matters

Your goal is to look like a reasonable person with a workable plan. “Winning” often looks like getting the outcome narrowed, clarified, and timed so you can actually do it.

Step 6: If council issues the Order anyway — know your rights and deadlines

If an Order is issued, it must be served and is meant to be accompanied by a notice stating you may appeal to the Land and Environment Court and the time period for appeal.

In NSW, a person given a development control order may appeal to the Land and Environment Court, generally within 28 days after it is given (with some nuances).

Important trap: an appeal doesn’t automatically “pause” the Order

Under the NSW framework, an appeal does not of itself stay the Order.
So if you’re considering appealing, you need advice quickly on what you must do in the meantime.

Step 7: Be aware of costs (including “compliance cost notices”)

Even if you “fix it,” there can be cost recovery mechanisms.

In NSW, the enforcement authority can serve a compliance cost notice requiring payment of reasonable costs/expenses connected to things like:

• investigations leading to the Order,
• preparing/serving the notice of intention,
• monitoring and ensuring compliance,
• and other associated matters. This matches what councils often warn about in their notices (including in your example).

There are also appeal rights for compliance cost notices (time limits apply).

A quick “do this now” checklist

If you want a practical, no-drama plan:

• Day 1Read the notice carefully and diary the representations deadline

• Start a folder and save every email, photo, and document

• Days 2–7Pull the DA/CDC paperwork and stamped plans

• Photograph the current situation clearly

• Speak with a planner/building consultant/certifier (and a solicitor if high-stakes)

• Before the deadlineSubmit written representations with evidence

• If you need more time, request it early and explain why (quotes, lead times, access issues)

• If an Order is issuedGet advice immediately on compliance steps, appeal options, and whether any stay is possible

• Don’t assume the Order is “on hold” because you’re disputing it

Final note

A Notice of Intention is a serious document, but it’s also a window of opportunity. The best outcomes usually come from fast, evidence-backed engagement — not from silence or panic.