Shields & Lye v Goulburn Mulwaree Council

[2007] NSWADT 229

CITATION:	Shields & Lye v Goulburn Mulwaree Council [2007] NSWADT 229
DIVISION:	General Division
PARTIES:	APPLICANTS Gail Shields & Aaron Lye RESPONDENT Goulburn Mulwaree Council
FILE NUMBER:	063394, 063395
HEARING DATES:	25 May 2007, 11July 2007
SUBMISSIONS CLOSED:	11 July 2007
DATE OF DECISION:	28 September 2007
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Impounding - unlawful impouding of item - Impounding Act - impounding - unlawful impounding of item
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal (General) Regulation 2004 Administrative Decisions Tribunal Act 1997 Impounding Act 1993 Interpretation Act 1987
REPRESENTATION:	APPLICANTS C Dibb, Barrister RESPONDENT I Cheetham, Solicitor
ORDERS:	The decision under review is set aside. In its place the decision is made that the vehicles that are the subject of the purported impounding are not impounded.

1 These are two applications for review of determinations by the Goulburn Mulwaree Council (“the Council”) to take action under the Impounding Act 1993 (“the Act”). The matters were heard together and the evidence in the matters overlaps to some extent.

2 Two vehicles are the subject of Mr Lye’s matter:

(a) a prime mover registration number ROX-250

(b) an unregistered duel axle trailer

3 A further vehicle is the subject of Ms Shields’ matter:

(c) a trailer bearing Queensland registration plates 557 QLR

4 The Council provided the following chronology events which is relevant to these matters:

4th September 2006 - a notice of intention to impound two (2) vehicles was issued to Mr Chris Lye and Mr Aaron Lye under section 16 of the Impounding Act, 1993.

5th September 2006 - Abandoned Vehicle notices were attached to the truck that was situated at the intersection of Jerrara Road and Hume Highway.

8th September 2006 - Truck, rego ROX-250 and trailer 557- QRL were impounded and taken to GMC lock up facilities. The Tow truck driver could not easily disconnect the brake system to allow for towing. The braking system was bypassed.

The trailer (557 -QLR) was separated and towed independently to the prime mover.

The Prime mover (ROX -250) was collected upon the second visit.

The trailer (no plates) located on Mr TE Brayshaw's property, 7111 Federal Highway, (Canberra side of Goulburn) was also impounded. The impounding operation was reported to the Goulburn Police Station at approximately 4.45 pm.

5 It is apparent that there is considerable animosity between the Applicants and various Council officers. The Council’s impounding action was preceded by a long period of interaction between the Council and the operators of the Heritage Motel in regard to signage placed on the trailers. The reasons for decision provided in relation to the applicant’s request for an internal review provides some detail of the history of the dealings between the parties in relation to the matter. It states:

The impounding action for each item has been reviewed and the decision and comments are included below:

Internal Review Decisions

Item: Trailer - No Registration Plates

Location: Impounded from 7111 Federal Highway, Yarra.

Details:

An inspection on 17 August 2006 found a trailer and sign to be located at the above property without consent.

On 23 August 2006 the owner of the land was advised to remove the sign and trailer as it was unlawfully placed on the site. The owner of the land advised that he was not the owner of the items. The owner of the land advised that he subsequently contacted the Heritage Motel management, as they had placed the items on his land. He asked them to remove the items from his property. He further indicated that he was advised that the items would not be removed from his land.

On the 28 August 2006 the owner of the land gave written consent to the council to remove the items that had been abandoned and left unattended on his property.

On the 4 September 2006 a notice of intention to impound was sent to Heritage Motel management. Ownership was determined from the information contained on the sign placed on the trailer and the advice from the landowner. There was no trailer registration or identifying marks on the trailer to enable the identification of the registered owner.

Failure to remove the items from the site resulted in the impounding of the items on 8 September 2006.

In summary;

The trailer was impounded by an authorised officer of the council in accordance with section 15 of the Impounding Act 1993 (the Act).

The owner of the land indicated that the items had been abandoned and left unattended on his property after he requested the persons placing the items on his land remove them and they failed to do so.

The owner of the land gave written consent to the council for the removal of the items.

Council made reasonable inquiries in accordance with section 16 of the Act to find the name and address of the owner.

Written notice, in accordance with section 16 of the Act, was given to the Heritage Motel management advising that the items would be impounded if not removed.

The officer in charge at the Goulburn Police Station was advised of the impounding in accordance with section 19 of the Act.

Notification of the impoundment was given in accordance with section 20 of the Act.

Item: Trailer - Registration No. 557 QLR & Prime Mover ROX 250 Location: Impounded from Hume Highway, Marulan.

Details:

The vehicle and trailer had been identified as being left unattended in various locations along the Highway within the Goulburn Mulwaree Council area since April 2006.

The vehicle and trailer were further identified as being left unattended on the 1st, 2nd, 3rd and 4th of September on the Hume Hwy near the intersection of Jerrara Road at Marulan.

On the 4 September 2006 a notice of intention to impound the above vehicles was sent to Aaron Lye as the identified owner.

Failure to remove the items from the site resulted in the impounding of the items on 8 September 2006.

In summary;

The trailer was impounded by an authorised officer of the council in accordance with section 15 of the Impounding Act 1993 (the Act).

The prime mover and trailer had been observed to be left unattended for lengthy periods since early April and specifically on the dates as indicated above.

Council made reasonable inquiries in accordance with section 16 of the Act to find the name and address of the owner. Whilst the registered owner of the trailer was identified as a person other that one of your clients. That person stated that the trailer had been sold several months prior.

Written notice, in accordance with section 16 of the Act, was given to Aaron Lye advising that the items would be impounded if not removed.

The officer in charge at the Goulburn Police Station was advised of the impounding in accordance with section 19 of the Act.

Notification of the impoundment was given in accordance with section 20 of the Act.

A review of the actions taken to impound the above items has been undertaken. It is considered that the action in all circumstances has been appropriate and in accordance with the Impounding Act 1993.

You are therefore advised that the actions will not be withdrawn and the items will remain impounded until such time as the fees for release are paid or an alternate decision from the Administrative Decisions Tribunal is received.

6 Section 38 of the Administrative Decisions Tribunal Act1997 (“the ADT Act”) provides that the Tribunal has jurisdiction under an enactment to review a decision if the enactment provides that applications may be made to it for review of any such decision made by the administrator. Section 38 of the Act provides that an owner of an impounded item can apply to the Tribunal for review of the decision to impound the item, but only on the ground that the impounding of the item was unlawful. Section 55 of the ADT Act limits the right of a person to apply to the Tribunal for review to where, among other things, an internal review pursuant to section 53 is taken to have been finalised.

7 Section 53(11)(b) of the ADT Act permits regulations to be made excluding any class of reviewable decisions from the internal review procedure. Clause 11 of the Administrative Decisions Tribunal Regulation 2004 excludes decisions pursuant to a number of enactments but a decision pursuant to the Act is not among them.

8 Section 39 of the Act provides in part:

39 Time limit for applications

(1) This section has effect despite the provisions of the Administrative Decisions Tribunal Act 1997.

(2) The time limit for making an application for review of an impounding decision is 28 days from the date on which impounding was notified.

9 The Applicants sought an internal review of the Council’s decisions to impound the vehicles. Each of the Applicants then applied to the Tribunal for external review of the Council’s decisions to impound the vehicles. The applications were filed within 28 days from the date of the determination of internal review. There is some doubt with respect to the issue of whether the Applicants were required to follow the procedure outlined above in regard to seeking an internal review prior to their applications to the Tribunal. The requirement imposed by section 39(2) of the Act casts some doubt in regard to whether that is a necessary step notwithstanding the absence of reference to the Act in Clause 11 of the Administrative Decisions Tribunal Regulation 2004.

10 In my view, the intention of section 39 of the Act is that an owner of an impounded item can apply to the Tribunal for review of the decision to impound the item without the need to seek an internal review prior to doing so. That being the case, the owner of a vehicle must make the application for review of an impounding decision is 28 days from the date on which impounding was notified. The Applicants have not made their applications within that time frame.

11 Section 57 of the ADT Act provides for the Tribunal to extend the time for the making of an application to Tribunal if the Tribunal is of the opinion that the person has provided a reasonable explanation for the delay in making the application. In this matter, the delay can be explained in the time taken in seeking an internal review and the determination of the internal review. In the circumstances I have determined to exercise the discretion provided in section 57 of the ADT Act.

12 Pursuant to section 63 of the ADT Act the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it. For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed on the administrator who made the decision.

Other Applicable Legislation

13 Section 3 of the Act provides:

3 Objects of this Act

The objects of this Act are:

(a) to empower authorised persons to impound and deal with animals and articles in public places and places owned or under the control of certain public authorities if, in the case of animals, they are unattended or trespassing or, in the case of articles, they have been abandoned or left unattended, and

(b) to empower occupiers of private land to impound and deal with animals trespassing on their land, and

(c) to provide for the release of impounded animals and articles that are claimed by their owners, and

(d) to provide for the disposal of impounded animals and articles that are not claimed by their owners and, if they are disposed of by sale, to provide for the disposal of the proceeds of sale.

14 Section 5 of the Act provides:

5 Who can impound and what can be impounded

(1) Impounding officers can impound certain animals and articles, as provided by this Act. The power to impound conferred by this Act on an impounding officer of the Roads and Traffic Authority is limited to the impounding of motor vehicles, unless the regulations otherwise provide.

(2) Occupiers of private land can impound certain animals, as provided by this Act.

(3) A police officer has and may exercise the powers of any impounding officer (as if he or she had been appointed as an impounding officer by each impounding authority). This does not make a police officer subject to the direction or control of an impounding authority.

Impounding officers are persons appointed as impounding officers by impounding authorities. See the definitions of "impounding officer" and "impounding authority" in the dictionary.

15 Section 6 of the Act provides:

6 Areas in which impounding officers can impound

(1) An impounding officer may impound something under this Act only in the area of operations of the impounding officer.

(2) This Act does not confer power on an impounding officer to enter a place that the officer could not otherwise lawfully enter.

(3) Nothing in this Act prevents an impounding officer from entering private land at the invitation of the occupier, so long as it is within his or her "area of operations".

See the definition of "area of operations" in the Dictionary for the areas in which impounding officers can impound.

16 The Act’s dictionary defines "area of operations" of an impounding officer to mean:

in the case of an impounding officer appointed by a council, any place in the area of the council and any place in the area of another council in which that other council has authorised it to impound under this Act, but does not include the area of operations of an impounding officer appointed by the Director of National Parks and Wildlife,

17 Section 8 of the Act provides:

8 When is something "impounded"?

(1) Something is impounded as soon as an impounding officer or an occupier of private land takes possession of it under a power conferred by this Act. It continues to be impounded until it is released or disposed of in accordance with this Act.

(2) An item does not have to be taken to a pound for it to be "impounded" for the purposes of this Act.

18 Section 15 of the Act provides:

15 Abandoned and unattended articles can be impounded

An impounding officer may impound an article found in the officer's area of operations if the officer believes on reasonable grounds that the article has been abandoned or left unattended. Section 16 affects this if the article is a motor vehicle.

The Local Government Act 1993 gives a council power to order the removal of an object or matter that is causing or likely to cause an obstruction.

19 Section 16 of the Act provides:

16 Special procedures for impounding of motor vehicles

(1) An impounding officer must make all reasonable inquiries in an effort to find out the name and address of the owner of a motor vehicle before the officer impounds the vehicle.

(2) If the impounding officer's inquiries fail to reveal the name and address of the owner, the officer may proceed to impound the vehicle.

(3) If the impounding officer's inquiries do reveal the name and address of the owner, the officer is not to impound the vehicle until notice of the proposed impounding has been given to the owner and the period specified in the notice has elapsed.

(4) The notice to the owner must be in writing addressed to the owner and must indicate that the vehicle may be impounded unless it is removed within a specified period (not less than 3 days) and may be destroyed if its value is less than $500 (or such other amount as may be prescribed under section 18).

(5) A motor vehicle may be impounded immediately (without following the procedures in this section) if the vehicle is in a public place and the impounding officer is satisfied on reasonable grounds that its immediate removal is justified because it is causing an obstruction to traffic (vehicular or pedestrian) or is or is likely to be a danger to the public.

Section 43 provides for police assistance in finding out who the owner of a motor vehicle is. See section 49 for the ways in which notice can be given to the owner of a vehicle.

20 Section 33 of the Interpretation Act1987 provides:

33 Regard to be had to purposes or objects of Acts and statutory rules

In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.

21 Section 76 of the Interpretation Act 1987 provides:

76 Service by post

(1) If an Act or instrument authorises or requires any document to be served by post (whether the word “serve”, “give” or “send” or any other word is used), service of the document:

(a) may be effected by properly addressing, prepaying and posting a letter containing the document, and

(b) in Australia or in an external Territory—is, unless evidence sufficient to raise doubt is adduced to the contrary, taken to have been effected on the fourth working day after the letter was posted, and

(c) in another place—is, unless evidence sufficient to raise doubt is adduced to the contrary, taken to have been effected at the time when the letter would have been delivered in the ordinary course of post.

(2) In this section:

working day means a day that is not:

(a) a Saturday or Sunday, or

(b) a public holiday or a bank holiday in the place to which the letter was addressed.

22 The Applicants are seeking review of the Council’s decisions on the ground that the purported impounding of the vehicles was unlawful. They contend that the impounding took place in the context of a continuing dispute between Council officers and the Applicants relating to advertising for the Heritage Motel and in particular whether consent is required for advertising signs on the vehicles. They say that the Council’s impounding officer was well aware that the vehicles were not abandoned and that he had been informed of this on numerous occasions. One of the vehicles had a laminated sign on the dashboard stating clearly that it was not abandoned. Also, the advertising signs themselves clearly indicated that the vehicles were not abandoned.

23 The Applicants contend that the Council did not comply with section 16 of the Act in that the officer concerned could not have believed or alternately could not have believed on reasonable grounds, that the vehicles were abandoned. They assert that the vehicles were impounded not for the purposes of the Act but for the improper purpose of removing advertising signs for which no Council consent had been obtained. They say that action under the Environmental Planning and Assessment Act 1979 is the appropriate method to achieve that purpose.

24 Both Mr Lye and Ms Shields provided affidavits in regard to the ownership of the vehicles. In Ms Shield’s affidavit she states:

1. I am the applicant in these proceedings.

2. I am also the trustee of the Shields Family Trust, which at the relevant time was trading as Koala Development.

3. I am the owner of the trailer bearing Queensland registration plates 557 QLR purportedly impounded by the Respondent from beside the Hume Hwy on 8 September 2006.

4. I purchased the trailer for $15,000 from Jack Evans of Hatton Vale in Queensland after seeing it in an advertisement.

5. Annexed and marked "A" is a true copy of the receipt from the vendor.

6. Annexed and marked "B" is a true copy of the receipt dated 13th October 2005 from Pickles Auctions at which a prime mover registration number ROX-250 was purchased. The prime mover is the first item on the receipt.

7. Annexed and marked "C" is a true copy of the receipt dated 14th December 2005 from Slattery Auctions where a duel axle trailer was purchased. The trailer is the first item on the receipt.

8. I purchased those items in my capacity as trustee of the Shields Family Trust, trading as Koala Development.

25 In Mr Lye’s affidavit he states:

1. I am the applicant in these proceedings.

2. I am the owner of the prime mover bearing registration number ROX-250 purportedly impounded by the Respondent from beside the Hume Hwy on 8 September 2006 and the unregistered trailer purportedly impounded by the Respondent from private property at 7111 Hume Hwy on that date.

3. Annexed and marked "A" is a true copy of the receipt fro Pickles Auctions at which the prime mover (ROX-2S0) was purchased by the Shield Family Trust trading as Koala Developments. The prime mover is the first item on Annexure "A".

4. Annexed and marked "B” is a true copy of the receipt from Slattery Auctions at which the dual axle trailer was purchased.

5. The truck and trailer were distributed to me by the Trust immediately after they were purchased.

26 The annexures referred to in these affidavits were also in evidence. Both Mr Lye and Ms Shields attended the hearing, gave evidence and were subject to cross-examination.

27 Mr Dibb has raised three issues that require determination in relation to the lawfulness of the Council’s action. Firstly, he contends that the Council has failed to comply with the legislative requirements set out in section 16 of the Act in regard to the notice given to Mr Lye. Secondly, he contends that the Council has failed to make all reasonable inquiries in an effort to find out the name and address of the owner of the trailer bearing Queensland registration plates 557 QLR before impounding that trailer. Thirdly, he contends that the Council is not authorised to take impounding action on private land.

The notice given to Mr Lye

28 There is no evidence to suggest that the immediate removal of Mr Lye’s vehicles was justified under section 16(5) of the Act. In circumstances where the ownership of a vehicle is not in issue, section 16(3) of the Act provides for the notice to be given to the owner of a vehicle prior to impounding. The impounding officer is not to impound the vehicle until notice of the proposed impounding has been given to the owner and the period specified in the notice has elapsed.

29 Section 16(4) of the Act provides that notice to the owner must be in writing addressed to the owner and must indicate that the vehicle may be impounded unless it is removed within a specified period. The specified period must be not less than 3 days.

30 Mr Dibb submits that the section clearly is intended to give the owner of a vehicle an opportunity to do something to prevent the vehicle being impounded. He argues that the fact the section requires notice to be "given" rather than "served" is of no consequence. Section 76(1) of the Interpretation Act 1987 expressly contemplates that a word other than "served" might be used in an Act but that that fact makes no difference. The effect of section 76(1), substituting "given" for "served" is to say that where notice pursuant to section 16 of the Act is "given" by post pursuant to section 49, it is taken not to have been "given" until the fourth working day after posting.

31 Mr Dibb further submits that section 33 of the Interpretation Act 1987 mandates a preference for a construction that would promote the purpose or object underlying the Act. The purpose or underlying object of section 16 is to give the owner of the vehicle an opportunity actually to do something. Section 16(3) says the impounding officer is not to impound the vehicle until notice has been given to the owner and the period specified in the notice has elapsed. Section 16(4) says the notice must be addressed to the owner and indicate that the vehicle may be impounded unless it is removed within the specified period.

32 He says that an interpretation that the Act intended to exclude section 76 of the Interpretation Act 1987, and that the posting of the notice would itself constitute the giving of notice, would be contrary to that purpose or underlying object. If a period of notice as short as three days were contemplated, that approach would often mean a vehicle was impounded before the owner had actually got the notice.

33 In this case the notice of the proposed impounding was mailed to Mr Lye on 4 September 2006. The impounding took place on 8 September 2006. Mr Dibb submits that pursuant to section 76(1)(b) of the Interpretation Act 1987, in the absence of evidence to the contrary, Mr Lye is taken to have received the notice on the fourth working day after it was posted. At the earliest, he is considered to have been given it on 7 September 2006. His evidence is that he did not receive the notice prior to 8 September 2006. Mr Dibb submits that Mr Lye then had a further three days in order to act on the notice before the impounding officer was authorised to impound the vehicles. It follows, he submits, that the impounding which took place on 8 September 2006 was not authorised by the notices posted on 4 September 2006.

Were all reasonable inquiries made to find out the owner of trailer 557 QLR

34 The evidence establishes that Ms Shields is the owner of trailer 557 QLR. The Council issues a notice to Mr Lye in relation to this trailer. Section 16(3) of the Act provides for the notice to be given to the owner of a vehicle prior to impounding, however no notice was ever issued to Ms Shields.

35 The Applicants assert that the Council, and in particular its Environmental Officer and Impounding Officer Mr Stewart Lloyd, was well aware that the trailer was not abandoned and had been informed of this on numerous occasions. This trailer was attached to a vehicle that had a laminated sign on the dashboard stating clearly that it was not abandoned. Also, the advertising sign clearly indicated that the trailer was not abandoned. Mr Dibb argues that the Council could have taken steps to ascertain the ownership of the trailer but did not do so.

36 Accordingly, he submits that the Council has not satisfied the requirements of section 16(1) of the Act and therefore it could not proceed to impound the trailer pursuant to section 16(2) of the Act. As no notice was given to Ms Shields, it follows that the impounding of the trailer was not authorised.

Is Council authorised to take impounding action on private land.

37 Mr Dibb submits that an impounding officer is not authorised to take action on private land. He argues that the limitation on the area of operations of the impounding officer is found in section 3(a) of the Act. The Act empowers authorised persons to impound and deal with animals and articles in public places and places owned or under the control of certain public authorities. The Act does not contemplate that an impounding officer may take action on private land after being lawfully permitted to enter. Section 6(2) of the Act permits an impounding officer to enter private land, but it does not authorise them to impound anything upon it. Accordingly, he submits, the impounding officer was not authorised to impound the trailer located on Mr Brayshaw's property, notwithstanding that Mr Brayshaw had given permission to enter his property.

The Council’s case

38 The Council relies on the evidence of Mr Lloyd who attended the hearing, gave evidence and was subject to cross-examination.

The notice given to Mr Lye

39 The Council concedes that the notice of the proposed impounding was forwarded on 4 September 2006 and the impounding took place on 8 September 2006. Mr Cheetham contends that section 16(3) of the Act merely requires that the impounding officer give notice to the Owner and that the period specified in the notice be elapsed. He says that the section does not contemplate ‘service on’ the Owner but that notice be ‘given to’ the owner i.e. the section imposes an obligation on the impounding officer to give the notice but there is no obligation for service.

40 Mr Cheetham contends that section 16(1)(i) contemplate that the notice is to be sent to an address but that no proof of actual service or receipt is required. Section 49 indicates that the notice may be given by any of the following methods: (a) by delivering it personally to the person; (b) by posting it to the person’s place of residence or place of business last known to the person giving the notice; or (c) in the case of notice to a body corporate, by leaving it at the registered office or principal place of business. He says that section 76 of the Interpretation Act 1987 relates to proof of service whereas section 16 relates to sending of the notice.

41 Mr Cheetham argues that section 16 is to be interpreted as setting out the terms of the notice. Otherwise the reference to three days in the section has no meaning. The notice is required to specify a period of at least three days after which the impounding officer is authorised to impound. He submits that the section sets out what the impounding officer must do before the Act authorises the impounding. If Parliament intended that at least 3 days must elapse after service of the notice and that a further 4 days was allowed for service, the Act would say so. He further argues that section 33 of the Interpretation Act 1987 is relevant to say that section 16 should not be interpreted to limit the purpose of the Act, namely to permit impounding after the expiration of at least 3 days referred to in the notice.

Were all reasonable inquiries made to find out the owner of trailer 557 QLR

42 The Council contends that it made reasonable inquiries to find the name and address of the owner of trailer 557 QLR in accordance with section 16(1) of the Act. It contacted the last registered owner of the trailer and learned that this was neither of the Applicants. On 8 August 2006 that person informed the Council that the trailer had been sold to "Shields Transport" several months earlier.

43 Mr Lloyd concedes that he did not approach Ms Shields to ascertain whether there was any link between her and Shields Transport.

Is the Council authorised to take impounding action on private land.

44 Mr Cheetham points to the objects of the Act as set out in section 3. Section 3(a) provides that an object of the Act is to empower authorised persons to impound and deal with articles in public places and places owned or under the control of certain public authorities if they have been abandoned or left unattended. Section 3(b) provides that an object of the Act is to empower occupiers of private land to impound and deal with animals trespassing on their land.

45 Mr Cheetham submits that the limitation prescribed by section 3(b) is in relation to where a private owner may impound rather than to where an impounding officer may impound. He further submits that no limitation is imposed on the areas in which impounding officers can impound by section 6, section 8 or section 15 of the Act. The term "area of operations" is defined in the dictionary (in the case of an impounding officer appointment by a Council) any place in the area of the Council. These provisions make no distinction between private and public land.

46 Mr Cheetham submits that the provision in section 6 is a general power authorising an impounding officer to impound at any location within the area of operations i.e. the Local Government area, whether it be public land or private land. However, the impounding officer may not impound on private land unless he has the consent of the owner. He says that section 6(3) clearly authorises the impounding officer to take action on private land with the consent of the owner.

Findings

The notice given to Mr Lye

47 I agree with Mr Dibb’s argument as to the interpretation of section 16(4). In my view, the Act contemplates that the vehicle owner who has been given a notice of intended impounding will take some action in relation to the notice. The Interpretation Act 1987 allows 4 days for service of the notice. I am satisfied that Mr Lye did not receive actual notice prior to the fourth working day after posting. The Act allows at least 3 days after service of the notice before a vehicle will be impounded. If Mr Lye had been handed the notice on 4 September and had failed to act on the notice, the impounding could have lawfully taken place on 8 September. However, this did not happen. Because the notice was sent to Mr Lye by post, the Council was required to wait until the notice was either received or it was deemed to have been served by virtue of the Interpretation Act 1987. It follows that the Council was required to wait at least 7 days before impounding Mr Lye’s vehicles and as it did not do so, the impounding of the vehicles was unlawful.

Were all reasonable inquiries made to find out the owner of trailer 557 QLR

48 Given the history of the interactions between the parties, it is my view that the Council failed to make all reasonable inquiries in regard to the trailer. It seems that the impounding officer acted on the assumption that Mr Lye owned the trailer. This was understandable given that it was attached to the prime mover (ROX-2S0) however, once it was alerted to the sale of the trailer to Shields Transport the Council should have made further inquiries. The obvious inquiry that should have been made was to communicate with the Heritage Motel and to ascertain whether there was any link between Shields Transport and Ms Shields or at least to ascertain who the proprietor of the motel considered the owner to be. Mr Lloyd concedes that this did not happen.

49 The Council’s failure to make all reasonable inquiries in regard to the trailer means that it was not entitled to proceed to impound the vehicle on the basis that the inquiries failed to reveal the name and address of the owner. It is probable that proper the inquiries would have revealed the name and address of the owner. The Council should then have complied with the notice obligations set out in section 16(4) before the vehicle could be impounded. It follows that the impounding of trailer 557 QLR was therefore unlawful.

Is the Council authorised to take impounding action on private land.

50 It is not necessary that I determine this issue because, as I have already indicated, I do not consider that sufficient notice was given in relation to the trailer located on Mr Brayshaw's property. Nevertheless, I note that I agree with Mr Dibb’s argument as to the interpretation of section 6(2) of the Act. In my view, the section permits an impounding officer to enter private land, but not to impound a vehicle located upon it. This is the case notwithstanding that the Council had the permission of the landholder.

51 If Parliament had intended that an impounding officer could impound a vehicle located on private land, it could have expressed that intention in the Act. The Act provides for impounding of animals by occupiers of private land. Parliament could have also provided for impounding of vehicles on private land. In my view this omission suggests that it was not Parliament’s intention that an impounding officer could impound a vehicle located upon private land. It follows that the impounding of the trailer located on Mr Brayshaw's property was therefore unlawful.

52 In light of these findings I do not need to consider whether or not the vehicles were abandoned, nevertheless I note that the evidence is to the contrary. It is my view that the decision under review could not be the correct and preferable decision as it was unlawful. It should therefore be set aside. On the evidence before me the correct and preferable decision is that the vehicles are not to be impounded.

Order

The decision under review is set aside. In its place the decision is made that the vehicles that are the subject of the purported impounding are not impounded.