In the case of Ballina Shire Council v Joblin [2022] NSWLEC 90, the Land and Environment Court of New South Wales underscored the paramount importance of drafting clear and unambiguous orders.

Background and Facts

Ballina Shire Council issued a development control order to Nellie Genevieve Joblin, the owner of a property in Ballina, requiring the demolition of an in-ground swimming pool. The Council argued that the pool was dilapidated and posed a danger to public safety. However, the order was contested on the grounds of its validity, particularly its clarity and specificity.

Court’s Reasoning

The Court found that while the swimming pool could be considered a “building” under the relevant statutory provisions (read more about that reasoning by clicking here), the order itself was invalid due to uncertainty.

Justice Robson emphasised that for an order to be enforceable, it must be expressed in clear and unambiguous terms. The judgment noted that the language used in the order, such as “Council advises that it will issue you with the Order,” introduced an element of futurity and uncertainty, making it unclear whether immediate compliance was required.

The judgment highlights the pitfalls of vague wording and the necessity for precision in legal documentation, particularly in development control orders.

Principles of Drafting Orders

When drafting legal orders, several principles must be adhered to ensure clarity and enforceability:

1. Clear and Specific Language: orders must be written in straightforward language that leaves no room for ambiguity. The actions required and the timeline for compliance should be explicitly stated.
2. Avoid Futurity: orders should not contain language that suggests future intentions. They must clearly state the obligations imposed at the time of issuance.
3. Consistency: the terminology used in the order should be consistent throughout to avoid confusion.
4. Contextual Clarity: each part of the order must be clear on its own but also contribute to the overall clarity of the document when read as a whole.

Key Takeaways

1. Early and Clear Communication: orders should clearly communicate the specific actions required and the rationale behind them. All notices and orders should be consistent and precise from the outset.
2. Thorough Review: before issuing an order, it should be reviewed thoroughly to ensure it meets all legal requirements for clarity and specificity.
3. Training and Guidelines: local councils are encouraged to undertake training for staff on the principles of drafting clear and unambiguous orders. It may also be appropriate to utilise guidelines and templates that incorporate these principles.
4. Legal Consultation: local councils and recipients of orders should always consider consulting legal experts with complex orders to ensure they are enforceable and legally sound.
5. Documentation and Evidence: local councils should maintain thorough documentation and evidence to support the issuance of orders. This includes a clear record of compliance issues and previous communications with the affected parties. This material will be relevant for both local councils and the recipients of orders should the matter be appealed in the Land and Environment Court.

Further reading

You can access the full judgment below.