Land and Environment Court New South Wales Medium Neutral Citation: Tweed Shire Council v Gennacker Pty Ltd [2015] NSWLEC 3 Hearing dates: 26 November 2013 Decision date: 30 January 2015 Jurisdiction: Class 6 Before: Pepper J Decision: Appeals dismissed. Appellant to pay the respondent's costs of both appeals. Catchwords: APPEALS: appeals by prosecutor from dismissal of charges in Local Court against caravan park owner for failing to comply with orders to remove caravan and to install tie- downs on caravans – whether appeals on a question of law alone – meaning of "owner" – appeals dismissed with costs. Legislation Cited: Crimes (Appeal and Review) Act 2001, ss 42(2B), 49(4), 70(1), 72 Holiday Parks (Long Term Casual Occupation) Act 2002, cl 25(4) of Sch 1 Land and Environment Court Act 1979, s 21A Local Government (General) Regulation 2005, cl 82 Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005, cls 4, 72, 96, 125, 139, 171 Local Government Act 1993, ss 68, 94, 106, 124, 628(1) Cases Cited: Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2009] NSWCA 160; (2009) 167 LGERA 395 Bobolas v Waverley Council [2012] NSWCA 126; (2012) 187 LGERA 63 Foster v Sutherland Shire Council [2001] NSWLEC 89; (2001) 115 LGERA 130 Kogarah City Council v El Khouri [2014] NSWLEC 196 Ku-ring-gai Council v Steve Nolan Constructions Pty Ltd [2012] NSWLEC 258 Lismore City Council v Ihalainen (No 2) [2014] NSWLEC 198 Miller-Mead v Minister of Housing and Local Government [1963] 2 QB 196; (1962) 14 P & Cr 266 Pittwater Council v Gerard [2013] NSWLEC 112 Sydney Water Corporation v Caruso [2009] NSWCA 391, (2009) 170 LGERA 298 Sydney Water Corporation v Marrickville Council [2014] NSWCA 438 Category: Principal judgment Parties: Tweed Shire Council (Applicant) Gennacker Pty Ltd (Respondent) Representation: Counsel: Mr I Hemmings SC with Mr A Isaacs (Applicant) Mr A Galasso SC with Mr J Johnson (Respondent) Solicitors: Stacks Law Firm (Applicant) KL Legal (Respondent) File Number(s): 13/60602 and 13/60560 Judgment The Council Appeals the Dismissal of Two Charges Against Gennacker 1. The appellant, Tweed Shire Council ("the council"), has appealed against the dismissal of two charges against the respondent, Gennacker Pty Ltd ("Gennacker"), by the Local Court. The appeals were heard concurrently. 2. The two dismissed charges were: 1. failure to comply with an Order 5 issued pursuant to s 124 of the Local Government Act 1993 ("the LGA") to remove a moveable dwelling from site 112 ("the removal charge") (in this Court, appeal 60602/2013), or "the removal appeal"; and 2. failure to comply with an Order 5 also issued under s 124 of the LGA to install tie-downs to caravans on 10 sites and a failure to supply the council with specifications for the tie-downs on those sites ("the tie-downs charge") (in this Court, appeal 60560/2013, or "the tie-downs appeal"). 1. Section 124 of the LGA states: 124 Orders A council may order a person to do or to refrain from doing a thing specified in Column 1 of the following Table if the circumstances specified opposite it in Column 2 of the Table exist and the person comes within the description opposite it in Column 3 of the Table. 1. Pursuant to s 628(1) of the LGA, a failure to comply with an Order 5 issued under s 124 of that Act is an offence: 628 Failure to comply with order (1) A person who fails to comply with an order given to the person under Part 2 of Chapter 7 that is an order in the terms of any of orders Nos 1, 3, 5 and 7-12 in the Table to section 124 is guilty of an offence. Maximum penalty: 50 penalty units (in the case of an individual) or 100 penalty units (in the case of a corporation). 1. The council appeals the decisions of the court below under s 21A of the Land and Environment Court Act 1979, which in turn makes provision for appeals under s 42(2B) of the Crimes (Appeal and Review) Act 2001 ("CARA"). 2. Section 42(2B) of CARA permits a prosecutor as of right to appeal against the dismissal of a charge, as well as an order for costs, made in the Local Court on a ground that involves a question of law alone. 3. A mixed question of law and fact will not suffice. As was recently summarised by Biscoe J in Pittwater Council v Gerard [2013] NSWLEC 112 (at [2]): 2 Such an appeal is "only on a ground that involves a question of law alone": s 42 Crimes (Appeal and Review) Act 2001, referred to in s 21A Land and Environment Court Act 1979. This formula excludes an appeal on a mixed question of law and fact: Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318, (2007) 178 A Crim R 220 at [46]; Ku-ring-gai Council v Steve Nolan Constructions Pty Ltd [2012] NSWLEC 258 at [26] per Pain J; Environment Protection Authority v Ravensworth Operations Pty Ltd [2013] NSWLEC 92 at [26] - [33] per Sheahan J. … 1. As was observed recently by Leeming JA in Sydney Water Corporation v Marrickville Council [2014] NSWCA 438, there is "no universally satisfactory test for defining an error of law" (giving rise to a question of law); in any particular case it will depend on context (at [43]). 2. The appeal will also fail if the Court is satisfied that the error of law alone did not affect the result (Sydney Water Corporation v Caruso [2009] NSWCA 391, (2009) 170 LGERA 298 at [29] and Gerard at [2]). 3. At its highest, the prosecutor asserted that in respect of both appeals the court below erred in its construction of the statutory provisions giving rise to the offences. Assuming this to be a correct characterisation of the error, about which there was considerable debate (see the discussion below), this will give rise to a ground that involves a question of law alone (Ku-ring-gai Council v Steve Nolan Constructions Pty Ltd [2012] NSWLEC 258 at [12]). 4. For the reasons that follow, I have determined that the appeals must be dismissed, the council not having established any of its grounds of appeal (in either appeal) that the learned Magistrate's decisions were erroneous on any question of law. Gennacker Owns and Operates a Caravan Park 1. Many of the basal facts underpinning the two appeals were uncontentious, as was reflected by the statement of agreed facts before the Court. An appeal book containing relevant documentation from the court below, including the transcripts and exhibits, was also before the Court on appeal. 2. Gennacker is the registered proprietor of the land situated on Lot 12 DP 601118 known as 21-35 Chinderah Bay Drive, New South Wales, 2487. 3. The council is the consent authority under the LGA in respect of caravan parks and is entitled to issue Orders pursuant to that Act with respect to their operation. 4. On 20 December 2010, Gennacker was granted an approval ("the approval") to operate a caravan park pursuant to s 68 of the LGA at 21-35 Chinderah Bay Drive, to be known as the "Homestead Caravan Park" ("the caravan park"). 5. Relevantly, the approval was subject to the following conditions at 1, 12 and 13 (emphasis added): 1. This approval shall be prominently displayed on a part of the approved premises where it may be seen by all residents. A copy of the current community map must also be displayed on a part of the approved premises where it may be seen by all residents. ... 12. The Community Map relevant to this park must contain information as specified in Clause 72(1) of the Local Government (Manufactured Homes Estates, Caravan Parks, Camping Grounds & Moveable Dwellings) Regulation 2005 in so far as such information is required to be specified in a community map in accordance with the provisions of Clause 72(2) of the Local Government (Manufactured Homes Estates, Caravan Parks, Camping Grounds & Moveable Dwellings) Regulation 2005. Note: the community map in relation to a caravan park or camping ground – means a scale map that accurately shows: (i) The access roads, community amenities and community buildings within the caravan park or camping ground, and (iii) The number, size, location and dimensions of dwelling sites or camp sites within the caravan park or camping grounds, and (iv) In relation to a dwelling site or camp site within the caravan park or camping ground, the particular off-site parking space or spaces (if any) designated for use by the occupier of the dwelling site or camp site. The Community Map must also specify the location of and flood liable land in the Caravan Park. 13. The community map reference CP00012/10 and dated 20 December 2010 is determined by Council to be the Community Map for the Park in accordance with the requirements of Clause 72(2) of the Regulations. No internal changes shall be carried out within the park which would result in changes to the Community Map unless such changes are recorded on a revised Community Map, a copy of which is to be submitted to Council in accordance with provisions (sic) of Clause 125(a) of the Regulations before any such changes are carried out. Any changes so made shall comply with the provisions of Subdivisions 1-8 of Division 3 of the Regulations. 1. The approval did not identify the allocation of any off-site car parking spaces. Coverage of Site 112 1. Pursuant to the approval and the Community Map reference CP00012/10 dated 20 December 2010 referred to therein ("the community map"), each of site 112 and 16 were short term sites. That community map does not show any off-site parking spaces. 2. There was a requirement that a community map be provided to the council in respect of the caravan park every twelve months. 3. Prior to the Order 5 giving rise to the removal charge, an amended community map had been provided to the council which showed that Gennacker had allocated a car parking site to site 112. 4. Site 112 had an area of 100.65m2. Without off-site parking, the site coverage of the structure on site 112 was about 67%. The floor area of the structures erected on site 112 was 52.2m2. There was no carport or garage on site 112. 5. On 16 July 2012, the council issued a Notice of Intention to Serve Order No 5 pursuant to s 124 of the LGA ("the first notice") on Gennacker, requiring the removal of the relocatable home installed on site 112 of the caravan park. 6. On 2 August 2012, Mr J Willmott, on behalf of Gennacker, wrote to the council, in response to the first notice, noting that the community map indicated the dimensions of the site and that "a car parking space is provided off-site". 7. On 25 September 2012, the council issued an Order 5 pursuant to s 124 of the LGA on Gennacker requiring the removal of the relocatable home installed on site 112 of the caravan park ("the first order"). 8. On 12 October 2012, Gennacker (Mr Willmott) wrote to the council in response to the first order, again noting that "a car parking space is provided off-site". According to the evidence before the court below, and as found by the learned Magistrate (T33.45), Mr Willmott forwarded a copy of a computer generated site plan which showed the provision of off-site parking for site 112. 9. The relocatable home on site 112 was not removed within 28 days of the date of the first order as required by that order. Tie-Downs of Caravans 1. On 16 February 2012, the council issued a Notice of Intention to Serve Order No 5 pursuant to s 124 of the LGA, requiring "tie-downs" of caravans on sites 108, 117, 105, 87, 59, 60, 61, 65, 68 and 67, and for specifications from a practicing structural engineer of the tie-downs to be provided to it ("the second notice"). 2. On 27 February 2012, Gennacker responded to the second notice advising the council that it was not the owner of any of the caravans listed in the second notice. 3. However, on 17 July 2012 the council issued Gennacker with an Order 5 pursuant to s 124 of the Act ("the second order") requiring it to install tie-downs on the caravans on the identified sites in accordance with specifications of a practicing engineer in accordance with cl 171 of the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005 ("the Regulations") and to supply the specifications to it of the installation. 4. In relation to the caravans on sites numbered 108, 117, 105, 87, 59, 60, 61, 65, 68 and 67, it is not in dispute that as at the date of issuing the second order: 1. (a) Gennacker did not own the caravans located on those sites; 2. (b) the caravans on each of the sites had been there for more than 150 days; and 3. (c) the caravans were not tied down. 1. On 21 February 2013, Gennacker wrote to the owners of each of the caravans listed in the second notice telling them that the council had advised that tie-downs to their moveable dwelling had to be installed to engineers' specifications, and that under the terms of their occupation agreement they bore the responsibility of ensuring that the moveable dwelling complied with any regulations under the LGA. 2. The second order was also not complied with by Gennacker. Applicable Legal Principles Governing the Appeals 1. Prior to descending into the detail of the two appeals, it is worth restating some basic principles applicable to the construction of penal statutes and development consents. These were recently reiterated by Biscoe J in Lismore City Council v Ihalainen (No 2) [2014] NSWLEC 198, whose summary is respectfully adopted and repeated here. 2. In respect of the approach to the interpretation of penal statutes, his Honour quoted the following authorities (at [54]–[55], see also those cited at [56]): 54 The approach to the interpretation of penal statutes was enunciated in Scott v Causey [1907] HCA 80, (1907) 5 CLR 132 at 154-155 per Isaacs J: When it is said that penal Acts or fiscal Acts should receive a strict construction, I apprehend it amounts to nothing more than this. Where Parliament has, in the public interest, thought fit in the one case to restrain private action to a limited extent and penalise a contravention of its directions, and in the other to exact from individuals certain contributions to the general revenue, a court should be specially careful, in the view of the consequences on both sides, to ascertain and enforce the actual commands of the Legislature, not weakening them in favour of private persons to the detriment of the public welfare, nor enlarging them as against the individuals towards whom they are directed... 55 A frequently quoted statement in more recent cases is that of Gibbs J in Beckwith v R [1976] HCA 55, (1976) 135 CLR 569 at 576: The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences... The rule is perhaps one of last resort. 1. In respect of the construction of development consents, Biscoe J observed that (at [57]–[58]): 57 As regards the construction of a development consent, in Winn v Director-General of National parks and Wildlife [2001] NSWCA 17, (2001) 130 LGERA 508 at [4] Spigelman CJ said: A public document, such as a development consent, constitutes a unilateral act on the part of the consent authority expressed in a formal manner, required and intended to operate in accordance with its own terms. It has, as Stein JA points out, an inherent quality that it will be used to the benefit of subsequent owners and occupiers. It is also a document intended to be relied upon by many persons dealing with the original grantee, or assignees of the grantee, in such contexts as the provision of security. In some respects it is equivalent to a document of title. It must be construed in accordance with its enduring functions. 58 In construing a development consent, the ordinary rules of construction and principles of interpretation apply as with any other statutory instrument: Baulkham Hills Shire Council v Ko-Veda Holiday Park Estate Ltd [2009] NSWCA 160, (2009) 167 LGERA 395 at [97]-[99] following King Gee Clothing Company Pty Ltd v Commonwealth [1945] HCA 23, (1945) 71 CLR 184 and Cann's Pty Ltd v Commonwealth [1946] HCA 5, (1946) 71 CLR 210. Development consents are to be construed not as documents drafted with legal expertise, but to achieve practical results: Ko Veda at [96]-[99] and [105], applying Westfield Management Ltd v Perpetual Trustee Co Ltd [2006] NSWCA 245 at [36], [40]. 1. Although these appeals are concerned not with a development consent, but an approval to operate a caravan park granted by the council, the principles are, in my opinion, nevertheless apposite. The Removal Appeal 1. The appeal grounds contained in the amended summons listed the following grounds of appeal (emphasis added): 1. The Magistrate erred in law in dismissing the charge against the Defendant. 2. The Magistrate erred in law in determining that Order was invalid as an off-site car-park existed in circumstances where that conclusion was not open to the Magistrate on the proper construction of the relevant statutory provisions (specifically Regulation 72 of the Local Government (Manufactured Homes Estates, Caravan Parks and Camping Grounds and Moveable Dwellings) Regulations) 2005 and Regulation 96 of the Local Government (Manufactured Home Estates, Caravan Parks and Camping Grounds and Moveable Dwellings) Regulations) 2005) and facts. 3. The Magistrate erred in law in ordering costs against the Prosecutor pursuant to Sections 213 and 214 of the Criminal Procedure Act 1986 when that conclusion was not open to the Magistrate on the facts. 1. Drafted in this manner, it is not difficult to understand the primary submission of Gennacker that the entirety of the removal appeal was defective because it did not give rise to a question of law alone. There is no doubt that the opacity of the stated grounds of appeal assisted neither Gennacker nor the Court in understanding the legal error said to have been committed by the court below, until the hearing of the appeal. In criminal proceedings, in particular, this is highly undesirable. Statutory and Factual Background to the Removal Appeal 1. In order to understand the substance of this appeal, it is first necessary to analyse the statutory and factual context governing the operation of the caravan park. 2. In order to operate a caravan park, approval is required pursuant to s 68 of the LGA (Table Approvals, Part F Other Activities, item 2). 3. Relevantly, s 94 of that Act provides that: 94 Determination of application (1) The council may determine an application: (a) by granting approval to the application, either unconditionally or subject to conditions, or (b) by refusing approval. (2) This section does not affect section 72. 1. Approvals can be amended upon application by a person to whom an approval was granted (or any other person entitled to act on the approval) pursuant to s 106 of the LGA: 106 Can approvals be amended? (1) A person to whom an approval is granted or any other person entitled to act on an approval may apply to the council to amend the approval. (2) Sections 78-86, 89, 97-99 and 105 apply to an application to amend an approval in the same way as they apply to an application for approval. (3) The council may amend an approval if: (a) it is satisfied that the approval as amended will be substantially the same as the original approval, and (b) it is satisfied that no prejudice will be caused to any person who made a submission concerning the application for the original approval, and (c) it has consulted with any person or authority whose concurrence to the original approval was required to be obtained and the person or authority has not, within 21 days after being consulted, objected to the amendment of the original approval. 1. Clause 72 of the Regulations identifies the matters that must be included in any approval, including the location of any off-site parking spaces. It relevantly provides that: 72 Matters to be specified in approval (1) In addition to any other matters it must contain, an approval to operate a caravan park or camping ground must specify the following: (a) whether the approval allows: the operation of a caravan park only, or the operation of a camping ground only, or the operation of both a caravan park and a camping ground, (b) in the case of an approval that allows the operation of a caravan park: the number, size and location of long-term sites allowed by the approval, and the number, size and location of short-term sites allowed by the approval, and the number, size and location of dwelling sites (whether long-term or short-term) to be reserved for self-contained moveable dwellings, and the location of any off-site parking spaces for dwelling sites, … (d) the location of any flood liable land in the caravan park or camping ground. (2) The numbers, sizes and locations referred to in subclause (1) must be specified by reference to a community map. 1. Clause 125 of the Regulations concerns the provision of the community map and provides that: 125 Community map The council must be given a copy of the current community map: (a) as soon as practicable after any amendment is made to the map, and (b) at such other times as the council may reasonably require. 1. A "community map" is defined in the Regulations in relation to a caravan park as: "community map": (a) in relation to a manufactured home estate – means a scale map that accurately shows the road reserves, the community amenities and the dwelling sites within the manufactured home estate, and (b) in relation to a caravan park or camping ground – means a scale map that accurately shows: (i) the access roads, community amenities and community buildings within the caravan park or camping ground, and (ii) the number, size, location and dimensions of dwelling sites or camp sites within the caravan park or camping ground, and (iii) in relation to a dwelling site or camp site within the caravan park or camping ground, the particular off-site parking space or spaces (if any) designated for use by the occupier of the dwelling site or camp site. 1. The regulation of the provision of car parking at caravan parks is provided for in the Regulations at cl 96. That clause states: 96 Resident parking A caravan park or camping ground must contain at least one resident parking space for each dwelling site or camp site. The parking space for a dwelling site or camp site may be on-site (that is, forming part of the site) or off-site (that is, not forming part of the site). An off-site space must be marked (for example, by means of line marking, marker pegs or similar means) to identify the particular dwelling site or camp site to which it relates. An off-site parking space for a dwelling site or camp site must be situated in the location specified in the approval for the caravan park or camping ground. Each off-site parking space is to have, at minimum, dimensions of: 5.4 metres by 2.5 metres, in the case of angle parking, and 6.1 metres by 2.5 metres, in any other case. 1. Also applicable is cl 139 of the Regulations which is in the following terms: 139 Site coverage A relocatable home and any associated structure must not be installed on a single dwelling site if the floor plan area of the relocatable home (together with any associated structure or other building or structure on the site) is more than two-thirds of the area of the site. (2) For the purposes of this clause: the floor plan area of a relocatable home is the area of the dwelling site occupied by the home, excluding the area of any associated structure forming part of the home that is not roofed, and the floor plan area of any associated structure not forming part of the relocatable home is the area of the dwelling site occupied by the structure, excluding any area that is not roofed, and if there is no carport or garage on the dwelling site, an area of 18 square metres must be added to the floor plan area of the relocatable home to account for the car parking space that is required by subclause (3) to be provided on the site. (3) If there is no carport or garage on the dwelling site, an area with minimum dimensions of 6 metres by 3 metres, accessible from an access road and useable for car parking, must be provided on the site. (4) Subclause (3) does not apply if the resident's parking space for that dwelling site is separate from the site. 1. Significantly, cl 139(1) requires that the floor plan area of any site used by a relocatable home (or caravan) must not be more than two thirds of the area of that site. 2. In addition, if there is no carport or garage on the site then 18m2 must be added to the floor plan in order to provide room for the car parking space. However, if an off-site parking space is provided, the extra area is not required (cl 139(2)(c), (3) and (4) of the Regulations). 3. As stated above, according to the hand-drawn legend for the site sizes on the community map referred to in the approval, site 112 was indicated to have a dimension of 9.15 x 11m, or 100.65m2. Also as described above, the floor area of the structures on the site were 9 x 5.8m, or 52.2m2. The structures on the site therefore covered 51.9% of that site. 4. Hence, according to the submissions of the council, the first order was issued because neither the approval nor the community map identified the allocation of an off-site parking space for site 112, and therefore, pursuant to cl 139 it was necessary to add an extra 18m2 to the floor area of the removable structure on the site, thereby increasing it from 52.2m2 to 70.2m2 and resulting in site coverage of 69.8% for the structure, which exceeded the mandatory maximum requirement of no more than two thirds of the area of the site. 5. In issuing the first order it appears that the council did not accept Gennacker's representations that in fact a car parking space was provided off-site for site 112. The Reasoning of the Court Below 1. The reasoning of the court below in dismissing the removal charge appears from the transcript, which given its short compass is reproduced in its entirety (T33.13–34.34): Crucial to that calculation is the absence of any factoring in of the requirements or reg 139, subcl 3 that is set out in the letter which is exhibit 6 on Mr LaGrande's affidavit from Mr Wilmot [sic] of 2 August 2012. It says the car parking space is provided offsite. The original site plan does not show any offsite parking. On 25 September, council wrote to Gennacker Proprietary Limited and said: "Council acknowledges receipt of your letter dated 2 August. Council has considered your comments in regard to the relocatable home placed on site 112. Council has come to the conclusion to issue Gennacker Proprietary Limited with an order number 5 to take the action required." It says: "Pursuant to section 132 of the Local Government Act, a notice of intention having been given to Gennacker Proprietary Limited and any representations having been considered, the order is now that you remove the relocatable home." That prompted further correspondence on 12 October and under the hand apparently of Mr Wilmot: "We are at a loss to understand the order issued for the above site in relation to clause 131 of the Local Government (Manufactured Home Estates Caravan Park Camping Grounds And Moveable Dwellings) Regulation that deals with the site. The community map for the park shows you've got the site as being 11 x 9.15 and a total of 100.6." Again, Mr Wilmot then repeats what the site is and that a car parking space is provided offsite. He said in his affidavit that not only was that correspondence forwarded, there was also a copy of a computer generated site plan which shows the offsite parking and indeed specifies the - above the words "Homestead Holiday Park" - and this is part of annexure JA5 to Mr Wilmot's affidavit of 12 March. The words and numbers "112 offsite parking" is provided. I am not satisfied that the restrictive interpretation of the word and definition of "owner" as urged upon the court by Mr Lee should be applied. I am of the view that the definition of "owner" in those circumstances is owner for the purposes of being the owner of the caravan park. In this case, Gennacker Proprietary Limited. The direction can be given. However, that was raised by Mr Lee. I accepted that had it been the interpretation of the definition of "owner" had it been what he had urged upon the court, it would be completely answer to the charge. But to read it down in the circumstances would in many respects notwithstanding practical difficulties arise because the subject relocatable home has been on-sold apparently to a third party and there would be other issues which arise in respect to practical issues which arise. They are issues not contemplated by 124. However, the case fails and the case fails in my view because the failure to comply given the letters written by Mr Wilmot on behalf of Gennacker and the company's revised plan showing offsite parking sufficient to bring the occupancy of site 112 within the - and under the two-thirds requirement of reg 139 - the allegation must be read strictly in - that has been urged upon the court by Mr Lee on behalf of the company and that is what specifically is the case that the defendant company is to answer. In my view, that must be when dealing with criminal matters or matters with criminal sanction that a strict interpretation should be applied to the word "used" and to the word "used" not only in the statute but also in the court attendance notice. And the failure to comply is a failure - alleged is a failure to comply with order 5. I am satisfied that it is possible that - indeed likely - that the council is aware of the offsite parking and it has been brought to their attention twice. But nevertheless in respect of site 112, nevertheless determined to proceed to issue the notice because there had been a failure to comply with another requirement of the law under which council operates and that is the requirement to bring another application under the Local Government Act to amend its records. That does not amount to a contravention of order number 5 under the provisions of s 124 of that Act THAT INFORMATION IS DISMISSED. 1. Plainly the learned Magistrate dismissed the charge because he found, as a question of fact, that off-site parking had been provided for site 112 that complied with the requirements of cl 139 of the Regulations. In these circumstances, there was no contravention of the first order because there was no basis in law or fact to order the removal of the relocatable home installed on site 112. 2. The council submitted that the finding of fact made by the court below was irrelevant to the task of determining whether there had been compliance with the first order because: 1. first, the correspondence from Gennacker concerning the provision of off-site parking for site 112 to the council was sent after the issue of the Notice of Intention to issue the first order; 2. second, the correspondence was silent as to the location of the off-site parking space for site 112; and 3. third, Ms Angela Powell, the owner and occupier of the relocatable home on site 112 had given evidence in the court below that the site was not allocated off-site car parking and that car space 16 had not been allocated to her. 1. In short, the council asserted that on the material before it, the first order was validly issued, and there being no contest that it had not been complied with insofar as the home had not been removed, the charge had been erroneously dismissed. 2. The approach maintained by the council cannot be accepted for several reasons. First, the complaint is in essence an attempt to cavil with the finding of fact by the learned Magistrate that off-site parking was provided in respect of site 112 and that the statutory requirements for area coverage of the site had, therefore, been met. Implicit in this finding is a rejection of Ms Powell's evidence. The argument gives rise to no question of law alone, only a question of fact, which was open to the Magistrate on the material before him. No challenge to this finding may be made by the council in this appeal. 3. Second, the finding was wholly relevant to the task of the court below. If the factual premise upon which the first order was issued was found to be incorrect, then the first order was invalid and any failure to comply with the first order was inconsequential. It would be a perverse result if Gennacker could be convicted for an offence for failing to comply with an order issued under s 124 of the LGA when it had, as a matter of fact, complied with the statutory obligations giving rise to the issuing of the order – the logical corollary of the council's position. In my view, this could not have been the objective intention of Parliament in establishing the offence. 4. This is sufficient to dispose of the appeal in Gennacker's favour. 5. Third, and in any event, the council's submissions ignored the operation of condition 13 of the approval combined with cl 125 of the Regulation. I agree with the submission of Gennacker that, properly construed, the effect of condition 13 is that a caravan park owner, in this instance Gennacker, may amend the layout of the park provided that the changes comply with the provisions of sub-divs 1–8 of Pt 3, Div 3 of the Regulations and provided that the changes are on a revised community map, a copy of which has been submitted to the council in accordance with cl 125(a) of the Regulations (Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2009] NSWCA 160; (2009) 167 LGERA 395 at [83] per Tobias JA). 6. There was, contrary to the contention of the council, no requirement, statutory or otherwise, for any approval to be given by the council to the amended community plan pursuant to s 106 of the LGA. This argument is contrary to the plain and unambiguous language of condition 13 of the approval and would have the effect of rendering it otiose. The actions of Gennacker were not, as was suggested by the council, akin to a "unilateral" amendment of the map; the requirements set out in that condition nevertheless had to be adhered to in order to achieve amendment. 7. As a matter of fact, amendment in conformity with condition 13 of the approval is precisely what occurred. Mr Willmott's evidence before the learned Magistrate was that he had provided an amended community map to the council as part of the caravan park's annual review by the council in 2011 and 2012, indicating that an off-site car parking space had been allocated to site 112 (namely, site 16). 8. It was accepted by the court below that there was an amended community map that allocated a parking space to site 112 and that the amendment had been notified to the council. 9. Again, these are findings of fact that cannot be reviewed by this Court. Moreover, it was not argued below that the amendment made to the community map was in breach of the relevant provisions of Div 3 of the Regulations or that the amendment had not been properly notified to the council. 10. Section 106 of the LGA was accordingly not engaged because no application to amend the approval was necessary, and therefore, none was made. There was no "unlawful", as the council characterised it, allocation of off-site parking to site 112. 11. In my view, it is not open to the council on this appeal to challenge the central finding of fact of the learned Magistrate that an off-site parking space had been allocated to site 112 in an appeal restricted to a question of law alone. The appeal must therefore be dismissed. There Was No Error in Respect of Costs 1. The learned Magistrate's reasons for awarding costs against the council were as follows (T36.11–37.20): HIS HONOUR: S 213 of Criminal Procedure Act 1986 provides that a court may at the end of summary proceedings order that the prosecutor pay professional costs to the registrar of the court for payment to the accused if the matter is dismissed or withdrawn. That's the trigger for the application in general terms. Subs 2 provides: "The amount of the professional costs is an amount that the magistrate considers to be just and reasonable". Section 214 provides that there is to be a limit on award of professional costs to an accused person against the prosecutor acting in a public capacity. "Professional costs are not to be awarded in favour of an accused person in summary proceedings unless the court is satisfied as to any one or more of the following: A, that the investigation in the alleged offence was conducted in an unreasonable or improper manner. B, that the proceedings were initiated without reasonable cause or in bad faith or were conducted by the prosecutor in an improper manner. That the prosecutor unreasonably failed to investigate or to investigate properly any relevant matter of which it was aware or reasonably to have been aware and which suggested that the accused person might not be guilty or for any other reason the proceeding shouldn't have been brought. That because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award professional costs". The two cases in respect of the costs application in my view must be approached separately. It is the case in respect to not removing the dwelling that the case law is complicated by the fact that some other entity apparently sold the subject relocatable home to a third party, aware that there was an issue with council in respect to the continued occupation of that site by that removable home, however it seems to me that in a timely fashion the defendant, through Mr Wilmot [sic], wrote to the council and provided information which would have taken the case outside the auspices of s 139, that is, a car parking space is provided off site. The evidence of Mr Wilmot is that the document attached to his affidavit clearly sets out that there is off site parking for site 112. The finding I make is that council had resolved itself to the fact that there had not been compliance with other requirements of the Local Government Act and there had been no formal application to amend any consent in respect of that site. Rather than accepting that it was on notice that there was an issue it elected to proceed with this prosecution. Given that there were two separate letters, 2 August and 12 August, which quite clearly a car parking space is provided off site, there ought have been further investigation in respect of that matter. In my view it was a matter that should have been properly investigated and there ought to be a costs order. In respect of the other matter, the letters which were sent by Mr Wilmot to the occupants and owners of the sites affected by the order was not sent until after the litigation was commenced. I do not think it is appropriate in those circumstances to order the prosecutor to pay the defendants costs, notwithstanding the litigation has been resolved in favour of the defendant. It would have been perhaps a different matter if those letters had been forwarded before the litigation was commenced but they clearly on the affidavit of Mr Wilmot were sent subsequent thereto. It was reasonable in the circumstances for the prosecutor to bring those proceedings. There was an issue in respect to the meaning of the word owner in respects of that particular matter. What costs are sought for the charge matter ending in 890? 1. Although strictly unnecessary to decide this ground of appeal given the dismissal of the removal appeal, I agree with the submissions of Gennacker that, as framed, the third ground raised in the appeal is defective insofar as it does not raise a question of law alone. Instead, the ground again seeks impermissibly to challenge the factual findings of the court below grounding the exercise of its discretion to award costs in Gennacker's favour. The Tie-Downs Appeal 1. The reasons for issuing the second order were stated by the council to be: THE REASONS FOR THE ORDER ARE: 1. Failure to comply with Clause 171 of the Local Government (Manufactured Home Estates, Caravan Park, Camping Grounds and Moveable Dwellings) Regulation 2005, which states: i. Any caravan that is installed on a long term site for more than 150 days and any holiday van or park van that is installed on a dwelling site must be restrained in accordance the specifications [sic] of a practising structural engineer to withstand the wind forces applicable to the terrain category in which the dwelling site is located. 2. To enable the consistent and fair application of the provisions of the Local Government (Manufactured Homes Estates, Caravan Park, Camping Grounds and Moveable Dwellings) Regulation 2005, as they apply to the operations of Homestead Caravan Park. Statutory Framework 1. In order to understand these reasons it is necessary to examine the legislative framework underpinning the issuing of the second order. 2. Clause 171 of the Regulations is concerned with "wind resistance" and mandates that: 171 Wind resistance Any caravan that is installed on a long-term site for more than 150 days and any holiday van or park van that is installed on a dwelling site must be restrained in accordance with the specifications of a practising structural engineer to withstand the wind forces applicable to the terrain category in which the dwelling site is located. 1. A "caravan" is "a moveable dwelling that is designed so as to be capable of being registered (within the meaning of the Road Transport Act 2013) as a trailer, but does not include a camper trailer" (cl 4 of the Regulations). 2. The term "long-term site" is somewhat circularly defined in the Regulations to mean "a dwelling site that is specified in the approval for a caravan park as being a long-term site" (cl 4 of the Regulations). 3. A "dwelling-site" in relation to a caravan park means "an area of land within the caravan park on which a moveable dwelling may be installed and that is designed as a dwelling site by the approval for the caravan park" (cl 4 of the Regulations). 4. According to cl 4 of the Regulations it is the LGA that, in turn, defines what a "moveable dwelling" is. In the Dictionary to that Act, the term is stated to mean: "moveable dwelling" means: (a) any tent, or any caravan or other van or other portable device (whether on wheels or not), used for human habitation, or (b) a manufactured home, or (c) any conveyance, structure or thing of a class or description prescribed by the regulations for the purposes of this definition. 1. It is convenient at this juncture to note that an "owner" is, relevantly for present purposes, defined in the LGA as (as defined in the Dictionary to that Act): "owner": . . . (d) in Part 2 of Chapter 7, in relation to a building, means the owner of the building or the owner of the land on which the building is erected. 1. But a "building", "includes part of a building and any structure or part of a structure, but does not include a moveable dwelling or associated structure or part of a moveable dwelling or associated structure" (defined in the Dictionary to the LGA, emphasis added). 2. Therefore distilled, it is apparent that the term "owner" is not defined for the purpose of the second order (Order 5 in s 124 of the LGA). This is because a moveable dwelling, or caravan, is expressly excluded from the definition of a "building", and if there is no "building" erected on land then the definition of "owner" set out above has no application to that land. 3. This is not to conclude, as was submitted by the council, that there can be no "owner" of a caravan for the purposes of s 124 of the LGA. Rather, the preferable approach is to ascribe to the undefined word its ordinary meaning. Accordingly, there can be both an owner of a caravan and an owner of a caravan park for the purposes of s 124. As discussed below, which is the relevant "owner" will depend on the context of the issued Order and the standard claimed to be in breach identified in that Order. Reasons of the Court Below 1. The reasons given by the learned Magistrate finding in Gennacker's favour in respect of the tie-downs charge are again sufficiently succinct that it is convenient to reproduce them in their entirety (T34.36–35.27): The other matter again having – turns on the issue of owner – Mr Lee's position is that the – for the purposes of the legislation again, "owner" is the owner of the respective vans, the subject of the issue of the notices. That is the notices to install tie-downs and to provide engineering certification. Reg 171 of the Local Government (Manufactured Home Estates Caravan Park Camping Grounds And Moveable Dwellings) provides the basis for tie-downs to facilitate wind resistance for any caravan that's installed at a long-term site for more than 150 days. The evidence of Mr LaGrande is that the vans on each of these sites had been in situ for more than 150 days and there is no dispute that the – given the evidence of Mr La Grande and Mr Wilmot that the specifications were not obtained by the defendant company nor was the work undertaken by the defendant company. But there are practical difficulties with it doing so. And the practical difficulties are that each of the relocatable and moveable dwellings on each of the sites referred to in the court attendance notice is not owned by Gennacker Proprietary Limited. Whilst a strict interpretation of "owner" would mean that the company is liable, there have been steps taken, albeit after court proceedings were commenced, to advise the owners of each of these vans that council required appropriate tie-downs and engineering certification for each of them. In those circumstances I am of the view that a different interpretation of "owner" ought to be taken from the definition section and it should be more limited because there is no evidence before me as to the nature of the agreements under which the occupants of these vans, the owners of these subject vans has – or remains in situ on the caravan park. And there would be in my view on the face of it in the absence of any evidence as to that nature of occupancy and perhaps licence or tenancy agreement entitled to eject a trespasser who attempted to either go onto that site and then affix items to the van which I understand from the material will be required . In that circumstance, in my view "owner" should be the owner of the van rather that the owner of the caravan park because in those circumstances practical compliance cannot be achieved and the owner of the caravan park can do nothing to avoid liability. True it is that there is an overall requirement that these parks meet certain standards but I do not see that a company such as Gennacker can forcibly enter onto those sites and install tie-downs as required by the regulation. "Owner" in my view means the owner of vans in each instance. The notices are inappropriately directed. THAT CHARGE ALSO FAILS. 1. In other words, because the learned Magistrate construed the term "owner" in Order 5 of s 124 of the LGA to mean the owner of the caravan on the site, rather than the owner of the caravan park (or Gennacker) the second order was invalidly issued to Gennacker, and the company's failure to comply with it could not sound in conviction. The Grounds of the Tie-Downs Appeal 1. The grounds of appeal in the tie-downs appeal were stated as follows: 1. The Magistrate erred in law in dismissing the charge. 2. On the proper construction, the Magistrate erred in law in determining the words "owner or occupier" in Part 5 of Section 124 of the Local Government Act 1993 did not include the owner or operator or the caravan park. 1. Notwithstanding an argument to the contrary from Gennacker, the second ground of appeal, raising as it does the correct construction of a statute (the meaning of the term "owner" in Order 5 of s 124), concerns a question of law. This is sufficient, in my opinion, to render the appeal competent. The Second Order is Invalid 1. As alluded to above, the terms "owner, occupier or manager" in Order 5 in s 124 is not, for present purposes, defined (emphasis added): To do what?In what circumstances?To whom? To take such action as is necessary to bring into compliance with relevant standards or requirements set or made by or under this Act or under the Local Government Act 1919: (a) a camping ground, caravan park or manufactured home estate (b) a moveable dwelling or manufactured home (c) (Repealed) 5 (d) a place of shared accommodation Failure to comply with relevant standards or requirements set or made by or under this Act or under the Local Government Act 1919 Owner, occupier or manager or, in the case of a water meter, water supply or sewerage system in respect of which a defect occurs in work due to faulty workmanship of, or defective material supplied by, a licensed contractor (being the holder of a licence in force under the Home Building Act 1989 authorising the holder to contract to do the work) within 12 months after the work is carried out or the material is supplied, the licensed contractor (e) a hairdressers shop or beauty salon (f) a mortuary (g) a water meter on premises (h) a water supply or sewerage system on premises, but only in relation to any work that is not plumbing and drainage work within the meaning of the Plumbing and Drainage Act 2011 1. It is important at this juncture to make two observations. First, the failure of the council to specify whether the second order was directed towards Order 5(a) or 5(b), or in other words, towards the caravan park itself or the moveable dwelling (the caravan), exacerbated the inherent ambiguity in the term "owner" in Column 3. And second, that the legislative scheme contemplates a separation, not a conflation, of the orders made under s 124, including Order 5. This is evident from the structure of s 124 itself, distinguishing between orders made in respect of a caravan park, on the one hand, in Order 5 (Order 5(a)), and orders made in respect of a separate moveable dwelling (which includes a caravan), on the other (Order 5(b)). 2. The latter is reinforced by cl 82 of the Local Government (General) Regulation 2005, which states that: 82 Relevant standards for camping grounds, caravan parks, manufactured home estates and moveable dwellings For the purposes of: (a) Order No 5 (a) in its operation as to camping grounds, caravan parks and manufactured home estates, and (b) Order No 5 (b) in its operation as to moveable dwellings, any applicable standards referred to in the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005 are relevant standards referred to in Columns 1 and 2 of the Table to section 124 of the Act. 1. The failure to identify whether Order 5(a) or 5(b) was engaged in the second order meant, in my view, that Gennacker was left uncertain as to whom the obligation for compliance was properly directed to. If, for example, the second order was issued under Order 5(b) of s 124 then it was highly unlikely that the order was directed to Gennacker, who was plainly not the owner of the moveable dwellings, or caravans, and therefore could not ensure compliance with the order. It was presumably for this reason that Gennacker advised the council that it did not own the caravans. 2. In my opinion, there is considerable force in the submission of Gennacker that the second order is invalid because it has failed to state with certainty the basis for Gennacker's liability to comply with the order, viz, as owner of the caravan park. The equivocal nature of who was required to comply with the second order means that Gennacker did not know what "he has done wrong and what he must do to remedy it" (Miller-Mead v Minister of Housing and Local Government [1963] 2 QB 196; (1962) 14 P & Cr 266 at 232 per Upjohn LJ quoted in Foster v Sutherland Shire Council [2001] NSWLEC 89; (2001) 115 LGERA 130 at [13], cited with approval in Bobolas v Waverley Council [2012] NSWCA 126; (2012) 187 LGERA 63 at [45] per McColl JA). 3. The necessity to state the basis of Gennacker's potential criminal liability is not an inconsequential omission to a statutory reference (Bobolas at [49]), rather, it went to the heart of the second order because it left Gennacker uncertain as to its legal obligations in the absence of any ownership of the caravans the direct subject of the order. 4. This omission alone is, in my opinion, sufficient to dispose of the tie-downs appeal. 5. However, a second reason for dismissing the council's appeal is because the learned Magistrate did not err in holding that the second order was invalid because it was issued incorrectly to the owner of the caravan park (Gennacker), and not, as it should have been, to the individual owners of the caravans in breach of cl 171 of the Regulations. 6. The persons to whom an Order can be issued depends on the breach to be enforced, namely, the circumstances in Column 2 of Order 5 of s 124. In this instance, the relevant standard or requirement was that provided for in cl 171 of the Regulations. There are several textual, contextual and common sense indicators tending towards the conclusion that the object of cl 171 is directed not to the operation of the caravan park as a whole, but rather to individual caravans that satisfy the objective criteria specified in that clause (those that are installed on a long-term site for more than 150 days), and hence that the proper construction of "owner" in Order 5 of s 124 is the owner of the caravan and not the owner of the caravan park: 1. first, it is the owner of the individual caravan who is best placed to determine whether the caravan is, or is likely to, meet these criteria, rather than the corporate owner of the caravan park (who may know nothing of the day-to-day operation of the caravan park); 2. second, the occupation of caravans is subject to and controlled by the Holiday Parks (Long Term Casual Occupation) Act 2002, which requires the occupiers of the caravans to comply with all requirements imposed under the LGA and the Regulations (cl 25(4) of Sch 1 to that Act); 3. third, as was conceded by the council in the court below, Gennacker, as the caravan park owner, cannot install the tie-downs where an owner of a caravan refuses permission for it to do so. In other words, it cannot, absent the cooperation of third parties, necessarily comply with the second order assuming the construction afforded to the term "owner" by the council is correct. This fact was reflected in a letter written by Gennacker to the owners of the caravans advising them that the council required that tie-downs to their moveable dwellings had to be installed to engineering specifications and that under the terms of their occupation agreement they were responsible to ensure compliance; 4. fourth, cl 171 refers to the "caravan" itself and not to a caravan park. The standard is located in Pt 3 Div 5 of the Regulations concerning the regulation of "Caravans, tents and annexes" as separate items, and not the general approval and operation of caravan parks and camping grounds in Divs 2 and 3. Clause 171 is consistent with other provisions within Div 5 insofar as that Division proscribes a miscellany of maintenance and structural requirements for caravans, which, practically, are matters best attended to by the owners or occupiers of caravans (for example, the maintenance of a caravan or the keeping of the running gear of a caravan in proper working order: cls 163 and 165 of the Regulations). By contrast, where a person other than an owner or occupier of the caravan is intended to comply with a requirement or standard, this is expressly stated in the Regulations (for example, it is the holder of an approval to operate a caravan park that must give the council written notice of the installation of a relocatable home or a rigid annexe: cls 160 and 173 of the Regulations). 1. That "owner" is more likely to mean the owner of the caravan is also consistent with the statutory context surrounding s 124 of the LGA and cl 171 of the Regulations. Thus: 1. within s 124 of the LGA, a distinction is made between "owners of buildings" (from which a caravan is excluded: see the definition of "building" above) (Orders 1 and 3), the "owner or occupier of land" (Orders 7 to 12), and "owners, occupiers or managers" (Order 5). If it had been the objective intention of the legislature that "owner" in Order 5 always meant owner of the caravan park, it is likely that Parliament would have included the words "of land" in Order 5. It did not do so; and 2. to the extent that the concept of an "owner" is referenced in cl 4 of the Regulations in relation to the terms "holiday van" and "park van", it is clear that the concept refers to the owner of the van itself. 1. The council further submitted that "owner" in s 124 Order 5 meant both the owner of the caravan park and/or the owner of the caravan, and that the council could elect to issue the notice to either "owner". But the logical and problematic corollary of this argument is that the council would, as Gennacker noted, have the power to issue an order to the owner or occupier of one caravan to bring into compliance his or her neighbour's caravan with a particular standard. I do not accept this to have been the objective intention of the Parliament in drafting s 124 of the LGA. 2. In my opinion, the learned Magistrate did not err in construing "owner" in s 124 Order 5 as the owner of the caravan in the context of proceedings before him. The second order was therefore invalid insofar as it was incorrectly issued to Gennacker, as owner of the caravan park, and not to the individual owners on the sites specified in the order. It follows that the tie-downs appeal must be dismissed. Costs of the Appeals 1. Gennacker has been successful in resisting both appeals by the council. It has incurred legal costs in doing so. This gives rise to an issue of whether the Court has a discretionary power to award the costs of both appeals and whether it should exercise this power in Gennacker's favour. 2. Section 49(4) of CARA states as follows: 49 Miscellaneous powers (4) Subject to section 70, the Land and Environment Court may make such order as to the costs to be paid by either party (including the Crown) as it thinks just. 1. Section 70(1) of that Act provides that: 70 Limit on costs awarded against public prosecutor (1) Costs are not to be awarded in favour of an appellant whose conviction is set aside unless the appeal court is satisfied: (a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner, or (b) that the proceedings in the Local Court were initiated without reasonable cause or in bad faith, or were conducted by the prosecutor in an improper manner, or (c) that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter: (i) that the prosecutor was or ought reasonably to have been aware of, and (ii) that suggested that the appellant might not be guilty or that, for any other reason, the proceedings should not have been brought, or (d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award costs in favour of the appellant. 1. In the present circumstances, therefore, s 70 of CARA imposes no limitation on Gennacker seeking its cost of the appeals, there having been no conviction recorded at first instance. 2. There being no limitation on the Court's power to award costs against an unsuccessful appellant in an appeal in Class 6 of the Court's jurisdiction (see, for example, Kogarah City Council v El Khouri [2014] NSWLEC 196 at [50] and [51]), other than to specify a time within which the costs must be paid (s 72(b) of CARA), the issue becomes one of discretion. 3. Although not the subject of any agreement between the parties (cf El Khouri), there is no reason presently before the Court why Gennacker ought not be compensated for the costs it has incurred in successfully defending the appeals and an order to this effect should be made. However, because the question of costs was not agitated before me, I shall permit the parties to approach the Court within fourteen days to seek an alternative costs order. Orders 1. The formal orders of the Court are that: 1. in matter 60602/2013 the appeal is dismissed; 2. in matter 60602/2013 the appellant is to pay the respondent's costs of the appeal within 28 days; 3. in matter 60560/2013 the appeal is dismissed; 4. in matter 60560/2013 the appellant is to pay the respondent's costs of the appeal within 28 days; 5. in matters 60602/2013 and 60560/2013, the parties are granted liberty to restore within 14 days to seek some alternative costs order; and 6. in matters 60602/2013 and 60560/2013, the exhibits are to be returned. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 February 2015