A charge brought by Tweed Shire Council against the owner of a caravan park for failure to comply with an order issued to her under the Local Government Act has been dismissed at an early stage of the proceedings by the Land and Environment Court - see Tweed Shire Council v Furlonger, (2014) NSWLEC 156. The outcome in the case provides an object lesson of the need for councils to exercise care and caution before initiating criminal enforcement proceedings in the Court.
The order that was issued to the defendant alleged that she had breached the Local Government (Manufactured Home Estates, Camping Grounds and Moveable Dwellings) Regulation 2005. It required her to take certain remedial steps, including removal of a wall that was attached to the side of a carport, to remove a wall and window that were attached to the front of a carport, and to remove a portion of a roof over an entrance to an annexe. There is no indication in the Court's judgement as to whether the structures that were the subject of the order were causing any adverse amenity impacts, either on occupants of the caravan park or on neighbouring properties.
The problem for the council in the case was that the defendant produced evidence that she was unaware that the order had been issued to her. The council attempted to serve the order on the defendant by placing it in a mail box at the caravan park. While this is not a permissible method of service under the Local Government Act, Justice Biscoe concluded that the defect in service would not have been fatal if the order had actually come to the attention of the defendant. Unfortunately for the council it did not. Justice Biscoe found that the likely reason that the defendant did not learn of the order was that it had been removed from the mail box by an unknown third party.
Under section 628(5) of the Act, a prosecution for breach of an order cannot be sustained unless it is demonstrated that the defendant has actual notice of the order - a defendant's lack of knowledge of an order is a complete defence to the charge. Justice Biscoe characterised the policy considerations underlying this principle in the following terms: "...no one should be found guilty of the crime of disobeying a statutory order of which they are unaware".
There are certainly some peculiar aspects of this case. First of all, given that the maximum penalty that the offence of failing to comply with the order could attract was only 50 penalty units, or $5,500, it seems odd that the council would have taken these proceedings in the Land and Environment Court, rather than in the Local Court, inasmuch as the Local Court is a jurisdiction that is far better suited to a minor penalty action of this nature. Furthermore, the seemingly minor nature of the remedial actions required by the council order also suggest that the Local Court would have been a more appropriate place for a penalty action to be brought. All in all, a prosecution for this type of offence in the Land and Environment Court appears, on its face, to be somewhat "heavy-handed".
Secondly, it appears somewhat strange that the council would have commenced proceedings in the Land and Environment Court (with all the attendant expense associated with such a case) unless it had first satisfied itself that the defendant was in fact aware of the order, and that there was thus no likelihood that the defence available under section 628(5) would be brought into play.
It is our opinion that a cautious council would have ensured that the order was delivered directly to the defendant, and that had this occurred the question of service would not have been left open to chance. It also appears that it would have been logical and appropriate for the council to communicate with the defendant concerning her alleged non-compliance with the order. By doing so it would have become apparent that the defendant had not become aware of the order, and the mistake of improvidently starting a prosecution in the Court could have been avoided.
Unfortunately, in this case, the council did not take those simple steps that it could have followed to ensure that the prosecution was well-founded and insulated from the challenge that was brought by the defendant. That failure was fatal to the council's case.
Justice Biscoe's judgement can be found at the following link:
http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=174366.
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