Imaroo Flyer Pty Ltd v Berrigan Shire Council

[2010] NSWLEC 1251

Land and Environment Court

of New South Wales

CITATION:

Imaroo Flyer Pty Ltd v Berrigan Shire Council [2010] NSWLEC 1251

PARTIES:

APPLICANT
Imaroo Flyer Pty Ltd

RESPONDENT
Berrigan Shire Council

FILE NUMBER(S):

10051 of 2010

CORAM:

Dixon C

KEY ISSUES:

SECTION 121B ORDER :-

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Local Government Act 1993
Road Transport (Vehicle Registration) Act 1997
Road Transport (Vehicle Registration) Regulation 2007
Local Government (Manufactured Homes Estates, Caravan, Camping grounds and Moveable Dwellings) Regulation 2005
Berrigan Local Environmental Plan 1992
Murray Regional Environmental Plan No 2 – Riverine Land

CASES CITED:

Commonwealth v Baume [1905] 2 CLR 405

DATES OF HEARING:

26 May 2010

 
DATE OF JUDGMENT: 

10 September 2010

LEGAL REPRESENTATIVES:

APPLICANT
Mr B G Halliday
SOLICITOR
B G Halliday Solicitors

RESPONDENT
Mr M S Rogers
SOLICITOR
Kell Moore Solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Dixon C

10 September 2010

10051 of 2010 Iramoo Flyer Pty Ltd ACN 005 872 382 v Berrigan Shire Council

JUDGMENT

1 This is an appeal pursuant to section 121ZK of the Environmental Planning and Assessment Act 1979 (EPA Act) against an order under section 121B of the EPA Act issued by Berrigan Shire Council on 11 January, 2010 to the applicant, Iramoo Flyer Pty Ltd, in relation to its land at Lot 21 in Deposited Plan 1109568, Lower River Road, Tocumwal, requiring it to comply with the following:

“To restore the Premises to the condition in which it was prior to work being unlawfully carried out. Specifically, you are ordered to remove the two structures identified in the photographs annexed to this order and labelled Annexure A and located generally in accordance with the site plan annexed to this order and labelled Annexure B being:

(a) A steel structure of approximately 6x4 metres in size; and

(b) A structure green in colour having the appearance of a moveable dwelling or portable structure (collectively referred to as the Structures).

The period allowed for the works to be completed is 21 days from the date of service of the order.”

2 The order states the reasons for the order to be:

“…The Structures erected on the Premises constitute development requiring prior Development Consent.

The placement of the Structures in this location on the Premises is unlawful by reason of the need for a prior Development Consent.

Additionally, in determining a Development Application for development of this nature council must give consideration to relevant environmental planning instruments including the Murray Regional Environmental Plan No.2 – Riverine Land and Berrigan Local Environmental Plan 1992(LEP). Specifically clauses 23,24,25 and 32 of the LEP relating to development on the Premises being environmentally sensitive land, flood liable land, bushfire prone and adjacent to the Murray River are relevant considerations.”

3 The applicant seeks a revocation of the order and permission for the structures to be retained on the site.

4 The central questions for my determination are: what are the structures and do they require approval under the Local Government Act 1980 (LGA) and/or development consent under the EPA Act? But the answers to the questions are complicated because the parties are unable to agree on a description of the structures and their use.

5 The applicant contends, since the issue of the order that the green structure has been separated out and registered as two caravans. It submits the subject matter of the order no longer exists; or, in the alternative, does not require approval under the LGA and/or the EPA Act.

6 The council defines the structure as a moveable dwelling under the LGA but contends if it is determined that the green structure is two registered caravans under Regulation 77 of the Local Government Regulations (LG Regulations) and there is an exemption from the requirement to seek a section 68 Approval under the LGA, that does not extend to an exemption from the requirement to comply with the EPA Act and Berrigan Local Environmental Plan 1992 with respect to development consent for the development. It contends there is no development consent for the green structure so it is unlawful and should be removed.

7 The statement of facts and contentions filed by the council on 21 April, 2010 and the statement in reply filed by the applicant on dated 27 April, 2010 set out the issues in the appeal. However, at the commencement of the hearing the applicant sought leave, which was granted, to change its position about the agreed contentions and raised issue with my jurisdiction to deal with the appeal on the following grounds: the validity of the service of the notice of intention to serve an order, the adequacy of the opportunity afforded to the applicant to make representations in respect of the notice of intention to serve an order before the order was issued; and the form of the order itself.

8 It is useful to set out the background facts before I deal with the jurisdictional and other contentions.

Background

9 There is no dispute about the fact that the applicant is the owner of the premises described as Lot 21 in Deposited Plan 1109568, Lower River Road Tocumwal adjacent to the Murray River near the southern border of New South Wales (the site).

10 According to the evidence, Lot 21 was created following a subdivision to enable two adjoining allotments to obtain riparian rights. It has an area of 17.75 hectares with Murray River frontage and consists of mostly natural bush land comprising red gum regrowth and other native vegetation. There is a sandy beach on the southern boundary of the site adjacent to the Murray River.

11 The site is Zone No1 (a) (General Rural Zone) under the Berrigan Local Environmental Plan 1992 (LEP) and, according to the council, is flood liable and bush fire prone environmentally sensitive land.

12 There are no dwellings located on the site and there is no dwelling entitlement under the relevant planning controls.

13 The council contends that the applicant has erected two structures on a sand bank of the Murray River on the site in or about November or December 2009.

14 It is agreed that the structure, which is now identified as a haystack, has been removed from the premises and is no longer an issue in the appeal.

15 No development consent has been sought by the applicant for the erection or placement of the remaining structure on the site which is shown in the photograph at folio 145 of council’s bundle (exhibit 1) see Figure 1.

16 It is council’s position that a notice of intention to serve an order requiring the removal of the structures was served on the applicant’s principal and its registered office on 11 December 2009. Council’s evidence is that the applicant’s principal accepted service of the notice and made representations to the council.

17 It is council’s position that after receiving and considering representations in response to the notice of intention to serve an order, the council issued the order on 11 January 2010 under Section 121B of the EPA Act requiring the removal of the structures. The order relies upon Order Item 12 in the table to Section 121 B of the EPA Act and requires the "Premises" to be restored to the condition it was prior to the unlawful works (being the erection and placement of the structures).

18 The applicant filed these proceedings on 4 February 2010.

Jurisdiction

19 At the outset I need to outline the Court’s jurisdiction under section 121ZK of the EPA Act.

20 An appeal under section 121ZK of the EPA Act is a “de novo” hearing of the council’s decision to give the order, which means that the Court is empowered to exercise the same functions and discretions as the council, afresh: ss 39(2) and 39(3) of the EPA Act state:

“39 Powers of Court on appeals
…
(2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.
(3) An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal.”

21 In determining the appeal the Court has a discretion under section 121ZK(4) of the EPA Act to:

“(a) revoke the order, or
(b) modify the order, or
(c) substitute for the order any other order that the person who gave the order could have made, or
(d) find that the order is sufficiently complied with, or
(e) make such order with respect to compliance with the order as the Court thinks fit, or
(f) make any other order with respect to the order as the Court thinks fit.”

22 As is clear from the wording of the section the Court’s power under section 121ZK(4) of the EPA Act does not extend to a merit assessment of the structures. The Court has no power in this appeal to grant an approval for the structures to remain without development consent under the EPA Act.

23 Furthermore, section 121ZK(4) does not empower the Court to make declarations about for example the validity of an order served under section 121B. However, because the gateway to a “de novo” hearing through section 121ZK relies on an appeal right under 121ZK(1) it must be established that the applicant has been served with an order to enliven my jurisdiction under section 121ZK(4). In other words if the Court has no jurisdiction to entertain the appeal then there can be no “de novo” hearing and the appeal may be dismissed. It is on this basis that I granted the applicant leave to raise the following contentions about my jurisdiction to entertain this appeal.

Invalid service of the notice of intention to serve the order

24 This contention was short lived because the applicant accepted council’s evidence that the notice of intention to serve the order was served personally on its principal and at its registered address (at pages 5 and 6 of the transcript).

Representations in respect of the notice of intention to serve an order

25 The applicant contends it was not given sufficient opportunity to make representations to the council as to why the order should not be given or as to the terms of or period for compliance with the order. At paragraph 35 at page 22 of the transcript the applicant states “…My client has been, he feels pushed along in this matter so that initially he was trying to find out what the council wanted to do. In that very letter this morning, which was confirmation of the clients’ receipt of the letter of December last year, there was an attempt in that very letter of my client sent back to try and sort out the matter and I think the council went too quickly on the matter and my client has been forced to institute these proceedings on the deadline provided in the order at the expense of $1000 to try and keep the matter going so he did have time to comply.”

26 It is asserted that the council did not comply with section121E of the EPA Act, which in turn requires compliance with sections 121F–121K of the EPA Act. “…I believe that the council has been premature and when there was –in going to formality in serving the order and when there ws still talk to be carried out and discussion between the parties and all those things the ss121H, I, J, K, L were meant to cover, there should’ve been more opportunity for that to occur…” (paragraph 30 of page 37 of the transcript).

27 The council does not agree. The Court was taken to the terms of the notice, which invited the applicant to make representations before the issue of the order. The evidence is that the parties had telephone conversations about the issues raised in the notice before the issue of the order. The extracts from council’s files tendered, which are exhibit 3, include a written representation from the applicant dated 22 December, 2009 received by the council on 23 December, 2010, which was considered before the determination by council to issue the order. The correspondence from council to the applicant dated 11 January, 2010, records council’s receipt and consideration of the applicant’s representation as follows:

“ The council has received your submission dated 22 December 2010 in response to the “Notice of intention to serve an Order” which was posted to you on 11 December 2009.

The matters raised in your response have been considered after reference to the relevant legislation and the council has determined to issue the Order No 12 under Section 121B of the NSW Environmental Planning and Assessment Act 1979.

You are respectfully advised to seek your own legal advice in this matter as you appear to be misunderstanding the provisions of the Environmental Planning Instruments and relevant legislation.”

28 According to the evidence; the applicant did not request additional time to make further representations before the issue of the order or ask that the issue of the order be delayed. The evidence is that the registration of caravans occurred some months after the issue of the order and was responsive to council’s letter of 1 March 2010 (exhibit D).

Finding

29 Based on the evidence, I am satisfied that the council has complied with the requirements of Division 2A of the LGA and afforded the applicant a opportunity to make representations as to why the order should not have been given or as to the terms of or period for compliance with the order. I accept the evidence of the council that the applicant made a written representation to the council on 22 December, 2009 and verbal representations about the matters raised in the notice before the issue of the order. Furthermore, the evidence supports a finding that the council considered those representations before making its decision to issue the order. In support of this finding, I rely on council’s letter to the applicant dated 11 January, 2010 (exhibit 3), which acknowledges receipt and consideration of the applicant’s representations before the order was issued.

30 The evidence clearly discloses that the council continued its discussions and correspondence with the applicant up until the hearing date. I accept council’s evidence that it sought to resolve the matter without recourse to litigation. I refer to the letters and notes of telephone discussions between the parties in respect of the order in exhibits 3, B and E and D. The correspondence between the parties about the order includes letters dated 12 January, 2010, 21 January, 2010, 27 January, 2010, 12 February, 2010,1 March, 2010, 18 May, 2010, and 19 May, 2010. Not only has the council responded to the applicant’s representation but, it has also attempted to provide advice about the provisions of the LGA and the EPA and the subject matter of the order.

31 I cannot accept, based on the evidence before me, that the applicant, as is alleged, was in fact “hurried” or has been denied a “sufficient period of consultation …before council took the step of making the order and becoming very formal” (paragraph 35 of page 22 of the transcript). There is no evidence to support a finding that I have no jurisdiction to deal with this appeal based on this contention.

32 The applicant submits that the form of the order is defective and, therefore, I have no jurisdiction to entertain this appeal. This submission is recorded in the transcript at paragraph 30 at page 24 as follows:

“…if I may go back to the terms of the order. If we look at s121B of the Act, it refers to orders that may be given by a consent authority column 1, to do what, column 2, in what circumstances, column 3, to whom. Now the particular one specified by council was number 12, to do such things –to do what “ To do such things as is specified in the order to restore the premises to the condition in which they were before the building was unlawfully erected or before the work was unlawfully carried out”.
Now the next column refers to building and also refers to works. Now the letter of the council keeps referring to structures. Section 121B doesn’t refer to the word “structures”.

33 The applicant submits that the words of the order are not consistent with the words in the EPA Act and because the order does not adhere to the wording in the legislation “…it is not a proper object of what section 121B orders are to be.”

34 Specifically, the applicant submits (Para 5 page 25 of the transcript):

“… because the section allows a reference to a building which has not been lawfully erected, but here, this is not a building, these are not buildings. It is not a proper object of what section 121B orders are to be.
My submission Commissioner is that the order does not adhere to the wording in the legislation, s121B, that it introduces vagueness and confusion by the word ‘structure” and if we’re put to one side as Mr Rodgers just said and we’re not talking about a building –the caravans are not buildings, its reference to work which has unlawfully been carried out. But as you can see from the letter of the council 1 March 2010 which has been exhibited, the council actually indicated that “yes, if you do these works that would be acceptable.”

35 It is useful to set out the table under section 121B of the EPA Act it reads:

To do what?	In what circumstances?	To whom?
12	To do such things as are specified in the order to restore premises to the condition in which they were before building was unlawfully erected or before work was unlawfully carried out	(a) Building has been unlawfully erected, and an order No 2 has been given requiring the building to be demolished or removed (b) Work has been unlawfully carried out	The owner of the premises, any person entitled to act on a development consent or complying development certificate or any person acting otherwise than in compliance with a development consent or complying development certificate

36 At paragraph 1 of page 26 of the transcript; the applicant submits the order does not adhere to the wording of the legislation and introduces “vagueness and confusion” by the word “structure”. It is asserted at paragraph 16 of page 26 of the transcript that this is a defect in the order and this removes my jurisdiction to deal with this matter.

37 The council explained its selection of order number 12 and the reference to “structures’ as a deliberate choice because of the uncertainty as to what the structure is and the clear definition of building in the Act.

38 In response, council explained at paragraph 25 at page 25 of the transcript that it relies on the second arm of order number 12 (b) “work has been unlawfully carried out ” and its specific complaint is about the unlawful works (structures) carried out on the premises.

39 Once this was said the applicant told me that the works complained of have since the service of the order been rectified by the separation of the internal structure into two registered caravans in accordance with council’s letter of 1 March 2010.

40 Council does not accept the applicant’s reading of exhibit D for the reasons discussed at paragraph 52 and 53 of the judgment that I do not repeat. Council submits that the applicant’s evidence does not support a finding that unlawful work or the structure is two separate registered caravans; rather a finding that it is a moveable dwelling, which requires development consent under the EPA Act. The council says the “work” in the order is within the definition of “development” under the EPA Act, which includes the carrying out of work. The erection and use of these structures, whatever they may be, is a work that has been carried out without development consent and is, therefore, unlawful work.

41 The council submits that the words in the order clearly reflect the wording and intent of order item number 12(b). Furthermore, the annexure of the photographs of the structure and its location in the order and the further definition of the works as “structures’ only clarifies the subject matter of the order. It does not, as alleged, confuse or make vague the terms of the order.

42 In any event the council submits that if I am not satisfied with the words of the order it is within my power to use the discretion under section 121ZK(b) or (c) to modify or vary the terms of the order to further specify the works.

43 I note however, that the submission above in paragraph 43 is a power available to me only if I have jurisdiction to entertain the appeal. I cannot in retrospectively vary an order under section 121ZK to give myself jurisdiction.

Finding

44 The table under Section 121B of the EPA Act confines the power in terms of the types of the orders that may be issued, the circumstances in which each type of order may be issued and the persons to whom an order may be issued.

45 Having regard to the evidence and the submissions above, I am satisfied with the terms of the order as providing me jurisdiction to deal with this appeal for the following reasons.

46 The order the council issued on 11 January, 2010 was directed to the applicant who is the owner of the premises. The order, therefore, complies with column 3.

47 The order directed the applicant “to restore the premises to the condition in which it was prior to work being unlawfully carried out.” The order specifies the work as: “two structures identified in the photographs annexed to this order and labelled Annexure A and located generally in accordance with the site plan annexed to this order and labelled Annexure B.” then further defines the work as: “(a) a steel structure of approximately 6x4 m in size; and (b) a structure green in colour having the appearance of a moveable dwelling or portable structure (collectively referred to as the structures).” Such “work” was capable of meeting the description of “work” in column 1.

48 The order sets out the reasons for the issue of the order and describes the circumstances in order 12(b), being the structures (earlier defined in the order as the work the subject of the order) have been placed on the premises unlawfully by reason of the need for prior development consent. Therefore the time of its issue the council determined the work is unlawful and thereby satisfied column 2.

49 Whether the Court, on the evidence before it, forms the same opinion as the council about the unlawful work is the subject of this “de novo” hearing. With respect to my jurisdiction to deal with this appeal, I am satisfied that the circumstances of the unlawful work which must exist for council to have power to issue the order under section 121B is sufficiently detailed in the order (by word and photograph) and in accord with the wording in section 121B such as to enliven my jurisdiction to deal with this appeal.

50 I reject the applicant’s submission that the order is “vague” or defective in form such as to deprive me of jurisdiction to deal with this appeal.

Are the Green structures caravans or moveable dwellings?

51 At the same time as asserting that council has not adequately consulted with it about the works (the subject of the order), the applicant asserts that it has complied with the order because it has carried out the work outlined in council’s letter dated 1 March 2010. The transcript at paragraph 12 at page 22 reads: “ …There was a flagging from council in that letter that if he did these things it would be Ok and my client has proceeded on that basis, spent the money for modification, spent the money for compliance and registration and those are two separate caravans.”

52 And at paragraph 16 at page 7 of the transcript “…the basic point of our client is that the order has been complied with in that the structures identified and described in the respondent’s order are no longer there because they have changed fundamentally in character and they are caravans and the –to get to the point, they’re not only caravans which are registrable as required by the legislation which we can refer to later, but they’re actually registered, and so that –the terms of the order which the council is referring to is not something which applies to this structure –to the caravans ..”

53 Council does not agree with the applicant’s interpretation of exhibit D and submits that the applicant has “glossed over” the relevant second paragraph of exhibit D which states:

“ In reply to the two matters raised by you :
1. Caravan
Provided your client is able to modify “the structures (green in colour)” to comply with the definition of “Caravan “ in the regulations so as to be registrable as a trailer, then the Council has no objection. It will however, be necessary to provide written registry confirmation of the conversion and compliance.”
Council will also agree to the storage of a caravan(s) in a farm shed on the land provided it is located greater than 100 m from the River Murray during the off season and only utilised on or near the beach for limited periods at holiday times.”

54 The council submits that the intent of the correspondence was to deal with the regulation 77 exemptions under the LGA. Council’s position was and remains that it is prepared to allow registered caravan(s) on the site provided there is storage of the caravans elsewhere on the site in compliance with the EPA Act for the other periods (paragraphs 23 and 25 of page 23 of the transcript).

55 However, the council is not satisfied that the structures are registered caravans for the following reasons.

56 In the LG Regulations caravan is defined as:

“caravan means a movable dwelling that is designed so as to be registered as a trailer under the Road Transport (vehicle Registration Act 1997, but does not include a camper trailer”.

57 The term “movable dwelling is not defined in the LG Regulations, but is defined in the LG Act as follows:

"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."

58 The joining together of the two structures into a single structure (as shown in photographs) now means, according to council, that the structures are no longer capable of being registered.

59 The Road Transport (Vehicle Registration) Act 1997 defines “registrable vehicle” as:

"(a) any heavy vehicle or other motor vehicle, or
(b) any trailer, or
(c) any other vehicle prescribed by the regulations for the purposes of this definition."

60 The terms "trailer" and "vehicle" are defined in the Road Transport (Vehicle Registration) Act 1997 as:

"trailer means a vehicle that is built to be towed, or is towed, by a motor vehicle, but does not include a motor vehicle that is being towed."
and
(a) any description of vehicle on wheels (including a light rail vehicle) but not including any other vehicle used on a railway or tramway, or
(b) any other vehicle prescribed by the regulations."

61 The moveable dwelling in its current form is not registrable. Schedule 2 to the Road Transport (Vehicle Registration) Regulation 2007 includes vehicle registration standards. Relevantly, no vehicle (which includes a trailer) is registrable if its width is greater than 2.5 metres (Clause 71 of Schedule 2). It is council’s evidence that the photographs show that the single structure is wider than 2.5m.

62 In response to the applicant’s submission that a caravan, is exempt development under the LGA, the council submits Regulation 77 of the LG Regulations, states as follows:

'77 Conditional exemptions
The prior approval of the council is not required for:
(a) the installation of not more than 2 caravans, campervans or tents on any land, so long as they are not occupied for more than 2 days at a time and are not occupied for more than 60 days (in total) in any single period of 12 months, or
(b) the installation of not more than one caravan or campervan on land occupied by the owner of the caravan or campervan in connection with that owner's dwelling-house, so long as it is used for habitation only by the owner or by members of the owner's household and is maintained in a safe and healthy condition, or
(c) the installation of a caravan or campervan on pastoral or agricultural land, so long as it is merely occupied seasonally by persons employed in pastoral or agricultural operations on the land. "

63 The term “approval’” is defined within the LG Regulations as follows:

"approval:
(a) in Subdivision 2 of Division 2 of Part 2 and Subdivision 2 of Division 2 of Part 3-means an approval of the kind referred to in item 1 of Part A of the Table to section 68 of the Act, and
(b) in the rest of Part 2-means an approval of the kind referred to in item 3 of Part F of that Table, and
(c) in the rest of Part 3-means an approval of the kind referred to in

64 Furthermore, the term “approval” is defined in the LG Act as follows:

“approval means an approval that is in force under the Act.”

65 The applicant’s reliance upon Regulation 77 as an exemption from the requirement to seek the approval required by Section 68 of the LG Act is dependant upon it satisfying the requirements of the definition of caravan under the LGA and the council submits that the applicant has not produced evidence of the fact that the moveable dwelling is two separate caravans, or evidence of the period of intended occupation such as to satisfy the regulations under the LGA or evidence of registration that satisfies Schedule 2 to the Road Transport (Vehicle Registration) Regulation 2007. Without that evidence, the unlawful work or green structure that the council submits appears to be a moveable dwelling cannot be defined as two caravans under the LGA in NSW.

66 The applicant also submits that any exemption contained in Regulation 77 of the LG Regulations extends to an exemption from the need to seek development consent under the EPA Act. The council refutes this proposition and those submissions are discussed later in the judgment.

67 In response to the issue of intended use, the applicant submits that there are two separate registered caravans on the site and “it is an open question which has been presumed but it hasn’t been responded to as to what my client intends to do with those caravans in the longer term ”(paragraph 25 of page 24 of the transcript).

68 The failure of the applicant at the hearing to address this issue of intended use was detrimental to its argument that these are registered caravans under the LG regulation because it is a matter that is required to be addressed to satisfy the definitional requirements under the regulation. Despite that the applicant did not produce any reliable evidence at the hearing about the intended use of the registered caravans on the premises. At best it submitted from the bar table that the intended use of the caravans extends to holidays with friends and for work ancillary to the agistment of cattle on the premises (which is an agricultural use) and for accommodation whilst he attends to his other agricultural sites nearby.

69 However, these submissions not only clouded the issue about the applicant’s intended use of any registered caravans on the banks of the river but also raised for council a new concern that of “recreational use”. According to the transcript it was the first time that the council knew about the applicant’s intention to use the caravans for both recreational and agricultural purposes. The transcript records at paragraph 45 at page 48: “ It’s the first I have heard of it, but that automatically raises issues with the Murray Regional Environmental Plan and this could arguably then be advertised development and require a myriad of other issues that come into play as well…if I is going to be used for recreational purposes there’s other issues that come into it.”

70 As was discussed at the hearing, the applicant’s submissions from the bar table are not evidence of a fact; and as a result the applicant’s case was lacking in crucial evidence. This lack of evidence may have remedied if the applicant’s principal (who was present in Court at the hearing and on occasion instructed its advocate after inquiry) had given oral evidence at the hearing to clarify for example the intended use. But this did not occur.

71 As a consequence, the Court has no factual evidence from the applicant on the issue of its use or intended use of the purported caravans on the site such as to satisfy the provisions of the LG Regulations.

72 In support of the proposition that the caravans are two separate caravans, with temporary plumbing and temporary steps, the applicant relies on undated poor quality photocopies of photographs in exhibit B and council’s photograph in folio 145 in exhibit C. However, there are no internal photographs to show the caravans as separated as alleged. It is telling that there is no affidavit evidence on this point only a submission based on unclear and undated photographs. Unfortunately, this does not assist me to understand the nature of the structures or their degree of permanency or the applicant’s intended use. While I note the submissions from the bar table at paragraph 15 of page 11 of the transcript about the conversion of the Titan Single trailer into two caravans, there is no reliable evidence to support a finding that these structures are in fact the caravans referred to in the Vic Roads certificates of registration in exhibit “A” or in fact that the caravans on the site are in a registrable state as required by the legislation.

73 I am told the structure in the photo in folio 145 of council’s bundle and exhibit C, shows two caravans secured together by bolts but that they are in fact two separate registered caravans end to end but not continuous. That is the main evidence relied upon by the applicant to support a finding that the structures in the order are now two separate caravans. Again, from the bar table, I am told at paragraph 30 of p12 of the transcript that the caravans are placed on props to maintain their balance because they are not secured to the ground. I was shown black and white photocopies of photographs of the purported caravans on props. However, I do not have any oral or affidavit evidence of as to who took the photos or when the photos were taken although after inquiry by me I was told again from the bar table that they were taken by the applicant.

74 At the hearing the applicant relied on two Vic roads certificates of registration to support a finding that the structures are in fact two caravans on the premises (exhibit A). The applicant also tendered a federal government brochure entitled Vehicle Standards Bulletin 1 dated 9 June, 2009 that notes at page 5 the requirement to affix a vehicle plate to the trailer before registration (exhibit G). I was not taken to the document in any detail, however, I was then taken to a series of black and white photocopies of very unclear photographs (exhibit B), which it was submitted show two vehicle plates affixed to two different trailers one bearing the words “single axle” and the date 4/10 and a number “ART32145AXH6097” consistent with the numbers in one of the certifications of registration in exhibit A. Unfortunately I can’t make out the blurred number in the other photocopy of the photograph which it is submitted is the other registered vehicle plate, and relates to the second caravan on the site and the second certificate of registration.

75 In fact the applicant’s advocate conceded during the hearing that the photocopies of the photographs were of poor quality and did not clearly show the caravans or the site. As a consequence I attach little weight to these photographs as evidence that the structures on the site are in fact the registered caravans referred to in the Vic road certificates. Again, I have no sworn evidence about this fact.

76 Ultimately, I have no reliable evidence before me to enable a determination that the moveable dwelling is in fact two separate caravans; no evidence about the applicant’s intended use of the caravans on the premises; nor in fact their registered state. The applicant tendered two “Vic roads” Certificates of Registration for two 2010 Titan Misc 1 Axle which bear an end date of 12 August, 2010 and 13 August, 2010 but no reliable evidence that those certificates and vehicle plates relate to the moveable dwelling on the site the subject of the order. Despite asserting that the Vic Roads registration satisfied the NSW legislation I have no clear evidence as to whether the registration certificates satisfy the requirements for registration under the NSW legislation. The applicant did not refer me to any particular legislation to that effect but relied on exhibit G, which is a Vehicle Standards Bulletin, dated 9 June 2009 and I am unclear about its relevance.

Finding

77 Based on the above I cannot accept that the structures on the premises, which are the subject of the order, are registered caravans such as to satisfy the relevant regulations under the LGA in New South Wales. Furthermore the evidence before me relates to Victorian certificates of registration and I do not have sufficient evidence to support a finding that the structures on the site are in fact the registered caravans referred to in the certificates of registration or that such registration satisfies the regulations under the LGA in NSW. Furthermore, I do have any evidence other than submissions from the bar table as to the intended use of the caravan to satisfy the relevant regulations under the LGA.

78 I do not accept exhibit A or B as evidence of the registration of two caravans on the site despite the applicant’s submission. I am not satisfied on the evidence that the structures or moveable dwelling are in fact two separate caravans and that an exemption exists in accordance with Regulation 77 of the Local Government (Manufactured Homes Estates, Caravan, Camping grounds and Moveable Dwellings) Regulation 2005 or from a section 68 approval under the LGA.

79 Based on the above, I do not accept the applicant’s submission that the subject matter of the order has changed since the issue of the order.

80 I will now deal with development consent under the EPA Act.

81 The applicant makes the following submissions in its statement in reply:

" the “green structure" referred to in paragraph 1 (b) of the order:
1. Was not a moveable dwelling but in fact 2 incomplete caravans as at the date of the order
2. These caravans have now been upgraded and modified and registered as caravans by the relevant road traffic authority in Victoria which is sufficient for the purposes of the NSW LGA.
3. As such no development consent is required for their use for periods on agricultural land and no restrictions apply to their positioning on such land. (Clause 77 of Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulations of 2005.
4. The exemption provisions of Section 68 Local Government Act 1993 and Section 76 of the Environmental Planning and Assessment Act 1979 apply
The order to remove it should be revoked or deemed to have been complied with.”

82 The council submits that all structures on the applicant’s premises require development consent under the EPA Act and for that reason alone the applicant’s appeal must fail.

83 The council submits that the green structure should be defined as a movable dwelling not two caravans because a caravan is included in the definition of a moveable dwelling in the dictionary of the LGA, however, a movable dwelling is not necessarily a caravan.

84 The council submits that even if I were satisfied on the evidence that the structures are a moveable dwelling or two separate caravans and that an exemption exists in accordance with Regulation 77 of the Local Government (Manufactured Homes Estates, Caravan, Camping grounds and Moveable Dwellings) Regulation 2005 and there is an exemption from the requirement to seek a Section 68 approval, it does not extend to an exemption from the requirement for development consent under the EPA Act. In considering the meaning of the relevant legislation, I was asked to follow the general rule of statutory construction namely: words should be interpreted so that all are given meaning and effect (Commonwealth v Baume (1905) 2 CLR 405 at 415 per Griffith CJ) and accept that the definition of "approval" in the LG Act is clear and expressly limits its application to the LG Act by use of the words "this Act".

85 The council submits that this proposition is supported by Section 78A of the EPA Act which distinguishes between an application for a Section 68 Approval and an application to the consent authority for consent to carry out development. For example, Section 78A(3) of the EPA Act states that:

“…in the same Development Application, apply for Development consent and approval for anything that requires approval under the following provisions of the Table to Section 68 of the Local Government Act 1993…”

86 Accordingly, a determination must be made as to whether a development application is required to be lodged in accordance with the Berrigan LEP for development.

87 The council poses the question as: does the installation of caravans in the location undertaken by the applicant constitute development?

88 The council submits that it does and relies upon the definition of "development" set out within Section 4 of the EPA Act, which states as follows:

“development means:
(a) the use of land, and
(b) the subdivision of land, and
(c) the erection of a building, and
(d) the carrying out of a work, and
(e) the demolition of a building or work, and
(f) any other act, matter or thing referred to in section 26 that is controlled by an environmental planning instrument,
but does not include any development of a class or description prescribed by the regulations for the purposes of this definition.”

89 The applicant asserts that the use of the caravans is exempt development.

90 The council does not accept it is exempt development and relies upon the Berrigan LEP, cl 10A relating to what constitutes exempt and compliant development and cl 9 containing the zone objectives and development control table.

91 The council is unable to categorise the use of the moveable dwelling as constituting any use that is permissible without consent. At best, the development is permissible with consent and at worst it is prohibited.

92 Council refers the Court to the following statutory controls for the site as detailed in the statement of facts and contentions:

“Berrigan Local Environmental Plan 1992
The objectives of the General Rural one are set out within cl 9 .
Clause 10 sets out general considerations for development in rural zones.
Clause 24 restricts any work being carried out on flood liable land without the consent of the council .
Clause 25 relating to bush fire is relevant if the structures constitute buildings.
Clause 32 relating to development along Murray River constitutes a development standard requiring minimum setback and council is unable to vary the setbacks without SEPP1 concurrence .
Murray Regional Environmental Plan No 2 – Riverine land
The Murray Regional Environmental Plan No 2 – Riverine land (Murray REP) is relevant in determining the impact upon the riverine land particularly with regard to the flood liable nature of the site and the proximity of the structures to the Murray River.
Specifically, the Planning control and Consultation Table set out in cl 13 requires consideration in the context of sub-clauses 3 (bed and/or bank work), 6 (caravan park/camping ground) and 22 (recreation facility adjoining Murray River or on flood liable land).
Local Government (Manufacture Homes Estates, Caravan Camping Grounds and Moveable Dwelling) Regulations 2005 (LG Regulations .”

93 Having regard to the above controls the council submits that under the relevant zone the only permissible development without consent on this site is listed as:

"Agriculture (other than ancillary dwellings, animal boarding or training establishments, intensive livestock keeping establishments and sandhill vegetation clearing);
Forestry (other than ancillary dwellings and pine plantations).

94 The only development listed as prohibited within the zone is detailed as follows:

"Integrated housing development; motor showrooms; residential flat buildings: shops (other than general stores not exceeding 100 sq m in gross floor area; villa units."

95 Therefore, council submits all forms of development not described within the above list are permissible in this zone only with development consent.

96 In addition, council submits that the site is identified in the LEP as flood prone land, environmentally sensitive land and the majority of the site is also designated as bushfire prone land.

97 The site is also covered by Murray Regional Environmental Plan No.2 ­Riverine Land, which is now a deemed State Environmental Planning Policy (SEPP).

98 The council submits, that based on the above, development consent is required for the structures and such consent has not be applied for or granted and therefore the structures are unlawful works which should be removed.

Conclusion

99 After a consideration of the evidence and submissions of the parties as outlined in detail above and the transcript of the proceedings, which I received in July 2010, I accept the council’s evidence that the green structure or moveable dwelling requires development consent under the EPA Act.

100 For the reasons outlined in this judgment, I am unable to accept that the green structure comprises two registered caravans as submitted by the applicant; and even if I had formed a different view, I accept council’s submission that such registration and approval under the LG Regulations and any exemption from a section 68 approval under the LGA does not displace the need for development consent under the EPA Act.

101 I find on the evidence that development consent under the EPA Act has not been applied for by the applicant or granted by the council in respect of the green structures or the work, which is development. Therefore, I am satisfied that the grounds of the order under section 121B of the EPA Act dated 11 January, 2010 are made out and that the order should be affirmed subject to a variation pursuant to section 121ZK (e) to extend the time for compliance with the order.

102 I also make the additional order as requested by council pursuant to 121Z(j) to permit the council to enter the applicant’s site to carry out the work ordered if the applicant does not comply with these orders.

103 Accordingly, the orders of the Court are:

(1) The appeal is dismissed.
(2) The council’s order issued under s 121B of the Environmental Planning and Assessment Act 1979 and dated 11 January 2010 is affirmed but varied to allow the applicant 21 days from the date of this order in which to comply with the terms of this order.
(3) In the event that the applicant fails to comply with the terms of the orders, I order that the council is permitted to carry out the necessary work to remove the moveable dwelling which is the unlawful work in accordance with section 121Z(j) of the EPA Act.
(4) The costs are reserved.
(5) The exhibits may be returned.

___________________

Susan Dixon
Commissioner of the Court
ljr/ajl