St Traidin Pty Ltd v Central Coast Council

[2024] NSWLEC 1492

Land and Environment Court

New South Wales

Medium Neutral Citation:

St Traidin Pty Ltd v Central Coast Council [2024] NSWLEC 1492

Hearing dates:

Conciliation conference 20 November, 14 December 2023, 16 and 23 January, and 7 August 2024

Date of orders:

14 August 2024

Decision date:

14 August 2024

Jurisdiction:

Class 2

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Pursuant to s 180(4)(b) of the Local Government Act 1993, the Court modifies the terms of the Local Government Order No 5 issued to the Applicant on 5 May 2023 by Central Coast Council in relation to Lot 3, Sec 13 in DP 1902, known as 520 Pacific Highway, Wyoming as shown in the Modified Order in Annexure A.

Catchwords:

LOCAL GOVERNMENT ORDER: conciliation conference – parties agree to modified order – orders made.

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.18

Land and Environment Court Act 1979, s 34

Local Government Act 1993, ss 68, 124, 180

Texts Cited:

Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2021

Category:

Principal judgment

Parties:

St Traidin Pty Ltd (Applicant)
Central Coast Council (Respondent)

Representation:

Counsel:
M Sonter (Solicitor) (Applicant)
C Rose (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2023/175149

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: On 5 May 2023, Central Coast Council (‘the Council’) issued an order to St Traidin Pty Ltd (the Applicant) pursuant to s 124 of the Local Government Act 1993 (LG Act) over the property at Lot 3 Sec 13 DP 1905 and Lot 1 DP 789440, known collectively as 520 Pacific Highway, Wyoming (the land).

2. The order, issued as an Order 5 pursuant s 124 if the LG Act required the Applicant to do each of the following:

1. Provide a current list detailing all tenants leasing any of the structures at the park, and their contact details, if known, as required by Clause 121 of the Regulation.

2. Engage an independent and suitably qualified town planner who has direct experience in Section 68 Approvals to Operate for Manufactured Home Estates, Caravan Parks and Camping Grounds, and provide the details of this town planner to Council for review.

3. Have the town planner required by point 2 above undertake a review of compliance with all relevant elements of the Regulation and provide a schedule of works to bring the Park into compliance, with nominated timeframes, and provide this schedule of works to Council for review.

4. Engage an independent and suitably qualified land surveyor and provide the details of this land surveyor to Council for review.

5. Have the land surveyor required by point 4 above prepare a site plan that includes all site features, existing dwellings, utilities, and which fully addresses the requirements of Division 3, Subdivisions 1, 2, 3, 4, of the Regulation. The site plan is to be to scale and demonstrate the Park boundary, accurate lot and site boundaries and all setbacks between dwellings, roads and community facilities within the park, and provide to Council for review.

6. Remove all unoccupied and unapproved shipping container dwellings from the park with any currently unoccupied dwellings not to be leased or otherwise tenanted prior to this date. Please note should any unauthorised shipping container dwelling become vacant, it is to be removed within 7 days of becoming vacant.

7. Engage an independent and suitably qualified electrician to review the supply of electricity from the Ausgrid connection to and within each dwelling within the park and provide the details of this electrician to Council for review.

8. Have the electrician required by point 7 above provide a report confirming compliance (or otherwise) with Clause 104 of the Regulation and including details of whether there is compliance with the Electricity Code of Practice and AS/NZS3001:2008 Electrical Installations – Transportable Structures and Vehicles including their site supplies, and the BCA where relevant.

9. Engage an independent and suitably qualified plumber to review all water and sewer connections within the park and to and within each dwelling and provide the details of this plumber to Council for review.

10. Have the plumber required by point 9 above provide a report confirming compliance (or otherwise) with Clauses 101, 102 and 103 of the Regulation and including details of whether there is compliance with relevant Australian Standards, and the BCA where relevant.

11. Engage an independent and suitably qualified fire safety expert to review the adequacy of fire safety equipment and services at the park and provide the details of this fire safety expert to Council for review.

12. Have the fire safety expert required by point 11 provide a report confirming compliance (or otherwise) with Clauses 127 and 128 of the Regulation and including details of whether there is compliance with relevant Australian Standards, and the BCA where relevant.

3. The appeal was listed for conciliation on 20 November, 14 December 2023, 16 and 23 January 2024 in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). No agreement was reached, and the conciliation was terminated, and the proceedings listed for hearing. The parties continued discussions and prior to the commencement of the hearing on the 7 August 2024, notified the Court that and agreement had been reached and requested a further conciliation conference be listed. The Registrar made those orders, and the further conciliation conference was listed on 7 August 2024. I presided over the further conciliation conference. At the conciliation, agreement was reached between the parties. That agreement is that the appeal should be upheld, and the order be amended pursuant to s 180(4)(b) of the LG Act, as detailed in the annexure to this judgment.

4. Pursuant to s 124 of the LG Act an Order 5 is framed in the following terms and requires the following circumstances:

Orders requiring or prohibiting the doing of things to or on premises

Column 1

To do what?

Order 5:

Column 2

In what circumstances?

Column 3

To whom?

5. The order, in its agreed modified terms, requires that the following standards under the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2021 (Regulations) be complied with:

1. Section 121 of the Regulations (Order 1)

2. Section 74 of the Regulation (Order 2 (Shipping containers are not moveable dwellings)

3. Section 68 of the LG Act and ss 74 and 75 of the Regulation, or s 71 for an approval to operate (Order 3).

4. Sections 155, Subdiv 5 of Div 3 of Pt 3 of the Regulations, Subdiv 6 of Div 3 of Pt 3 of the Regulations, ss 20, 21, 71 and 154 of the Regulations (Order 4).

6. The joint report filed in the proceedings at paragraphs 31-37 agree that there are a number of non-compliances under the Regulation on the premises. The Order sets out a pathway to begin to bring about compliance, which does not result in immediate closure of the premises; an outcome both parties have sought to avoid, having regard to the effect closure would have on residents.

7. I am satisfied that at the time of the issue of order, and at the present time, the conditions for the issue of Order 5 pursuant to s 124 of the LG Act exist.

8. As the presiding Commissioner, I am satisfied that the decision to make orders to modify the order is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act), for the preceding reasons and for the reason that s 180(4)(b) of the LG Act gives the Court the power on appeal to modify the order. Further, the orders sought by the parties are consistent with the powers of the Court set out in s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979.

9. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)). I therefore make orders in accordance with the agreement of the parties.

10. The Court notes that the parties agree that an application pursuant to s 68 of the LG Act must be lodged which seeks to install compliant movable dwellings from an existing manufacturer onto the shipping container sites on the land.

11. The Court orders that:

1. The appeal is upheld.

2. Pursuant to s 180(4)(b) of the Local Government Act 1993, the Court modifies the terms of the Local Government Order No 5 issued to the Applicant on 5 May 2023 by Central Coast Council in relation to Lot 3, Sec 13 in DP 1902, known as 520 Pacific Highway, Wyoming as shown in the Modified Order in Annexure A.

………………………….

D Dickson

Commissioner of the Court

Annexure A

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Decision last updated: 14 August 2024