Land and Environment Court New South Wales

• Medium Neutral Citation: Tweed Shire Council v Furlonger [2014] NSWLEC 156
• Hearing dates: 25 September 2014
• Decision date: 30 September 2014
• Jurisdiction: Class 5
• Before: Biscoe J

Decision

The proceeding is dismissed.

• Catchwords: PROSECUTION - motion by defendant for summary dismissal - charge under s 628 Local Government Act 1993 of failure to comply with council order under s 124 - under s 628(5) it is a sufficient defence if defendant satisfies court that defendant unaware of fact that activity in respect of which offence arose was the subject of s 124 order - defendant unaware of s 124 order or earlier mandatory s 132 notice of intention until after summons served - under s 144 an order is given by serving a copy on person to whom it is addressed - copy of order not served in a way authorised by s 710.
• Legislation Cited: Local Government Act 1993 ss 124, 129, 130, 131, 132, 144, 628, 710, Dictionary; Protection of the Environment Operations Act 1997 s 91; Local Government (Manufactured Home estates, Caravan Park, Camping Grounds and Moveable Dwellings) Regulation 2005 cll 138(a), 142; Uniform Civil Procedure Rules 2005 rr 10.14(1), 10.20(2)
• Cases Cited: Howship Holdings Pty Ltd v Leslie (No 2) [1996] NSWSC 314, (1996) 41 NSWLR 542; Lismore City Council v Ihalainen [2013] NSWLEC 149; Liverpool City Council v Cauchi [2005] NSWLEC 675, (2005) 145 LGERA 1; Mohamed v Farah [2004] NSWSC 482; Twist v Randwick Municipal Council [1976] HCA 58, (1976) 136 CLR 106; White v Weston [1968] 2 All ER 842
• Category: Interlocutory applications
• Parties: Tweed Shire Council (Prosecutor); Jacqueline Furlonger (Defendant)
• Representation: COUNSEL: A Isaacs (Prosecutor); J Furlonger (in person); SOLICITORS: Stacks (Prosecutor); N/A (Defendant)
• File Number(s): 50311/14

Judgment

1 The defendant is charged with an offence against s 628 of the Local Government Act 1993 by failing to comply with Order No 5 given to her on 16 October 2013 by Tweed Shire Council (the prosecutor) under s 124 of the Local Government Act relating to her property known as Site 199 (the Site), Tweed River Hacienda Caravan Park (the Park), 37 Chinderah Bay Drive, Chinderah in the Tweed Shire Council local government area. The order recited that Council considered she had breached cll 138(a) and 142 of the Local Government (Manufactured Home Estates, Caravan Park, Camping Grounds and Moveable Dwellings) Regulation 2005, which respectively provided that: (a) a relocatable home and any associated structure must not be located closer than one metre to an access road or closer than 2 metres to the boundary of the caravan park; and (b) an associated structure must not be designed or modified so as to be usable as a habitable room. The order required her within 28 days to remove a wall attached to the side of a carport, remove a wall and window attached to the front of the carport, and remove an added portion of roof over the entrance of the annexe.

2 The defendant did not comply with the order. A summons commencing this proceeding was filed on 13 May 2014 and served on her on 23 June 2014. She has not yet pleaded to the charge.

3 The only matter now before the Court for determination is a motion by the defendant that the proceeding be summarily dismissed, mainly on the ground that prior to being served with the summons in June 2014 she was unaware of the s 124 order and an earlier Council notice of intention to make the order, which s 132 required to be given before the order was given. She was also not given notice of a Council meeting on 20 March 2014 when it was resolved by majority to commence this proceeding. Alternatively, she seeks an order that the proceeding be stayed because she needs to prepare her case. I should say immediately that I would not grant the alternative relief because the directions of the Court would accommodate a reasonable time for preparation of the case.

4 A s 124 order is "given" if a copy is served on the person to whom it is addressed: s 144. Section 710 authorises a number of methods of service, in addition to personal service.

5 It is a sufficient defence to a prosecution for this offence if the defendant satisfies the court that the defendant was unaware of the fact that the activity in respect of which the offence arose was the subject of an order under s 124: s 628(5). Section 628(5) does not apply to a civil enforcement proceeding; however, Council has not brought a civil enforcement proceeding but has taken the more heavy-handed step of a criminal prosecution.

6 Council's unchallenged evidence, which I accept, is that the s 132 notice of intention was sent to the defendant by prepaid mail to her last known place of residence, namely the Site, on 3 September 2013, the date that it bears; and that a copy of the s 124 order was placed in the Site's mailbox on the date that it bears, 16 October 2013. Section 710 authorises service by the former method but not by the latter method. Given that s 710 authorises service of a notice by prepaid mail to the last known place of residence - a process whereby the notice should arrive in that place's mailbox - it is curious that it does not authorise service simply by leaving the notice in the mailbox of that place. I understand that the Site's mailbox was located not on the Site but at the Park entrance with the mailboxes of other Park sites. Although it was asserted on behalf of the defendant that at that time the defendant's place of residence or primary residence was elsewhere and that her son resided at the Site, I accept, based on evidence of a Council officer as to the inquiries he made, that the defendant's last place of residence known to Council at that time was the Site.

7 The defendant's unchallenged evidence, which I accept, is that she did not receive and was unaware of the s 132 notice and the s 124 order until after the summons was served. The likely explanation seems to be that a third party removed them from the Site's mailbox. It may well be that the defendant was not in fact residing at the Site at the relevant times.

8 The only communication from Council that the defendant received prior to service of the summons in June 2014 was a letter dated 22 May 2013 addressed to the "Occupant" at the Site, to which the defendant did not respond. The letter said that Council had become aware that alterations and additions were being undertaken at the Site without Council's prior approval and requested that she stop work immediately whilst Council further considered the matter and determined whether a formal order under the Local Government Act would be served requiring the demolition of the structures. The letter said that preliminary assessment indicated that the structure may not comply with fire and safety requirements and therefore was not likely to receive approval from the Council. The letter said that if she had any further queries she should contact a specified Council officer. The defendant criticises the fact that the letter was addressed by the description "Occupant". That description is slightly different from "Occupier", which is the description authorised by s 710(5). However, I do not think that the letter is a significant consideration on this motion.

9 As Council had earlier adopted criteria in a local policy under Part 3 of the Local Government Act on which it is to give an order, and it was required by s 131 to take the criteria into consideration before giving the order. The evidence, which I accept, of a Council officer in cross-examination indicates that it did take the criteria into consideration.

10 The defendant accuses a Council officer of issuing the s 132 notice and the s 124 order in retaliation for steps taken just before the dates of each by the defendant in AVO proceedings against one of the defendant's neighbours at the Park, whom the defendant accuses of vindictiveness in complaining to Council about the alleged unlawful works. Whether or not the neighbour was vindictive, the evidence does not establish that the Council officer was. If the accusation against Council is capable of being relevant to a motion such as the present, fair notice of it was not given to Council before this motion was heard and therefore it would be procedurally unfair to allow it to be pressed. Ultimately, I understood that the defendant did not press it on this motion.

The legislative provisions

11 Part 2 of Chapter 7 of the Local Government Act is titled "Orders" and comprises ss 124-157. Division 2 of Part 2 is titled "Procedures to be observed before giving orders" and comprises ss 129-135. The sections to which I have referred relevantly provide:

124 Orders

A council may order a person to do or to refrain from doing a thing specified in Column 1 of the following Table if the circumstances specified opposite it in Column 2 of the Table exist and the person comes within the description opposite it in Column 3 of the Table.

	Column 1	Column 2	Column 3
	To do what?	In what circumstances?	To whom?
...	...	...	...
5	To take such action as is necessary to bring into compliance with relevant standards or requirements set or made by or under this Act or under the Local Government Act 1919: (a) a camping ground, caravan park or manufactured home estate (b) a moveable dwelling or manufactured home ...	Failure to comply with relevant standards or requirements set or made by or under this Act or under the Local Government Act 1919	Owner, occupier or manager...

129 Circumstances in which compliance with this Division is required

(1) Before giving an order, a council must comply with this Division.

...

130 Effect of compliance with this Division

A council that complies with this Division is taken to have observed the rules of natural justice (the rules of procedural fairness).

131 Criteria to be considered before order is given

If the council has adopted criteria in a local policy under Part 3 on which it is to give an order, the council is required to take the criteria into consideration before giving the order.

132 Notice to be given of proposed order

(1) Before giving an order, a council must give notice to the person to whom the order is proposed to be given of its intention to give the order, the terms of the proposed order and the period proposed to be specified as the period within which the order is to be complied with.

(2) The council's notice must also indicate that the person to whom the order is proposed to be given may 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.

(3) The notice may provide that the representations are to be made to the council or a specified committee of the council on a specified meeting date or to a specified councillor or employee of the council on or before a specified date being, in either case, a date that is reasonable in the circumstances of the case.

144 Giving and taking effect of orders

An order is given by serving a copy of the order on the person to whom it is addressed and takes effect from the time of service or a later time specified in the order.

628 Failure to comply with order

(1) A person who fails to comply with an order given to the person under Part 2 of Chapter 7 that is an order in the terms of any of orders Nos 1, 3, 5 and 7-12 in the Table to section 124 is guilty of an offence.

Maximum penalty: 50 penalty units (in the case of an individual) or 100 penalty units (in the case of a corporation).

...

(5) It is a sufficient defence to a prosecution for an offence to which this section applies if the defendant satisfies the court that the defendant was unaware of the fact that the activity in respect of which the offence arose was the subject of an order under Part 2 of Chapter 7.

710 Service of notices on persons

(1) A notice required by or under this Act to be served on a person may be served as provided by this section.

(2) The service may be:

(a) personal, or

(b) by delivering the notice at or on the premises at which the person to be served lives or carries on business, and leaving it with any person apparently above the age of 14 years resident or employed at the premises, or

(c) by posting the notice by prepaid letter addressed to the last known place of residence or business or post office box of the person to be served, or

(d) by transmitting the notice by facsimile transmission to a number specified by the person (on correspondence or otherwise) as a number to which facsimile transmissions to that person may be sent, or

(d1) by transmitting the notice by electronic mail to an email address specified by the person (on correspondence or otherwise) as an address to which electronic mail to that person may be transmitted, or

(e) by fixing the notice on any conspicuous part of the land, building or premises owned or occupied by the person, or

(f) in the case of an offence involving a vehicle, by attaching the notice to the vehicle, or

(g) if the person to be served maintains a box at a document exchange established in New South Wales, by depositing the notice in that box or leaving it at another such exchange for transmission to the firstmentioned exchange for deposit in that box.

...

(5) The notice may be addressed by the description of "rateable person" or "owner" or "occupier" of the land, building or premises (naming or otherwise sufficiently indicating the same) in respect of which the notice is served, and without further name or description.

...

(7) If a notice has been served by any of the means prescribed by this section, all inquiries required under this section are taken to have been made, and the service is conclusive evidence of them.

(8) Proof by affidavit or orally that a notice has been posted, or its transmission by electronic mail has been initiated, in accordance with this section is conclusive evidence of service.

...

12 The word "notice" (referred to in s 710) is defined to include an order: Dictionary to the Local Government Act.

Consideration

13 Council submits that the defendant's motion for dismissal of the proceeding should be refused because Council complied with Division 2 of Part 2 of Chapter 7 of the Local Government Act and is therefore taken to have observed the rules of natural justice (procedural fairness): s 130.

14 In Twist v Randwick Municipal Council [1976] HCA 58, (1976) 136 CLR 106 at [10] Barwick CJ said:

...if the legislature has addressed itself to the question whether an opportunity should be afforded the citizen to be relevantly heard and has either made it clear that no such opportunity is to be given or has, by its legislation, decided what opportunity should be afforded, the court, being bound by the legislation as much as is the citizen, has no warrant to vary the legislative scheme. But, if it appears to the court that the legislature has not addressed itself to the appropriate question, the court in the protection of the citizen and in the provision of natural justice may declare that statutory action affecting the person or property of the citizen without affording the citizen an opportunity to be heard before he or his property is affected is ineffective. The court will approach the construction of the statute with a presumption that the legislature does not intend to deny natural justice to the citizen. Where the legislation is silent on the matter, the court may presume that the legislature has left it to the courts to prescribe and enforce the appropriate procedure to ensure natural justice.

15 Applying one of the Twist principles to a clean-up notice under s 91 of the Protection of the Environment Operations Act 1997, where there is no provision similar to s 132 of the Local Government Act, a council is under an obligation before issuing the notice to afford procedural fairness to the defendant by informing him that the question of whether a notice should be issued to him is under consideration and by affording him an opportunity to make submissions as to why the notice should not issue: Liverpool City Council v Cauchi [2005] NSWLEC 675, (2005) 145 LGERA 1 at [49] per McClellan CJ of LEC; Lismore City Council v Ihalainen [2013] NSWLEC 149 at [51]-[52], [64]-[65] per Pain J.

16 The present case is under the Local Government Act. It falls within a different Twist principle because here the legislature has decided what opportunity should be afforded the citizen to be heard in Division 2 of Part 2 of Chapter 7, in particular in s 132, and also in the requirement of s 144 that a 124 order is given by serving a copy on the person to whom it is addressed. Section 710 authorises a number of methods of service.

17 In my opinion, the proceeding should be dismissed for two reasons. First, the copy of the s 124 order was not served and consequently the order was not "given": s 144. The order was not served in a way authorised by s 710 because it was simply left in the Site's mailbox. The means of service authorised by s 710 include by posting by prepaid letter addressed to the last known place of residence or business of the person to whom it is to be served: 710(2)(c). Since the destination of a prepaid letter is generally the mailbox of such an address it is curious, if not anomalous, that s 710 does not authorise it to be personally delivered directly to the mailbox.

18 However, s 710 is not a code for service. The words used in subsection (1) are "may be served as provided by this section", not "must" be served. The words used exhibit the same approach to service as s 109X of the Corporations Act 2001 (Cth), which has been held on several occasions to be facultative not mandatory or exhaustive: eg Howship Holdings Pty Ltd v Leslie (No 2) [1996] NSWSC 314, (1996) 41 NSWLR 542 at 544; Mohamed v Farah [2004] NSWSC 482 at [41]. The words used in s 710(1) contrast, for example, with r 10.20(2) of the Uniform Civil Procedure Rules 2005, which provides that, except as otherwise provided by the rules, any originating process "must" be served in one of the ways there set out.

19 The function of service is to bring to the attention of the person to be served the content of a document and, in my judgment, particular language is required if something short of that is to constitute service: cf White v Weston [1968] 2 All ER 842. Subject to the important qualification in s 628(5) in relation to an order, s 710 of the Local Government Act is an example of a selection of language to achieve service in law of a notice, though notice may not in fact reach the defendant. Another example is r 10.14(1) of the Uniform Civil Procedure Rules 2005, which empowers the court, where a document cannot practicably be served, or served in a manner provided by law, to direct instead that steps be taken "for the purpose of bringing the document to the notice of the person concerned".

20 Unless a statute mandates a particular method of service, a document is served if it comes into the possession of the person for whom it is intended, and the means by which the person obtained the document are usually immaterial: Howship at 544. In my opinion, in the context of the Local Government Act, if a person received a notice hand delivered to their mailbox, it has been served even though that is not a method of service authorised by s 710. But, in my opinion, where a person does not receive a document hand delivered to their mailbox, that not being a method of service authorised by s 710, it has not been served. That is the present case.

21 Secondly, even if I am in error as to the first reason, the defendant has satisfied me that she was unaware of the fact that the activity in respect of which the offence arose was the subject of the order. That is a sufficient defence to the prosecution: s 628(5). This provision is a sensitive acknowledgement by the legislature that even if a copy of a s 124 order is served in a way authorised by s 710, the defendant still may be unaware of the order. Although a "notice" is defined in the Dictionary to the Local Government Act as including an order, s 628(5) is only concerned with an order, which it therefore distinguishes from all other notices as defined. The provision is consistent with fundamental principle: no one should be found guilty of the crime of disobeying a statutory order of which they are unaware. When it commenced the proceeding, Council was unaware that the defendant was unaware of the order, but that does not affect the statutory defence. The prosecutor submits that it is premature to uphold the statutory defence at this time because the defendant has not yet entered a plea and that it should be left for determination at the trial. I do not accept the submission. The defendant's unchallenged evidence that she was unaware of the s 124 order lay at the heart of her dismissal motion. In the circumstances of this case, I do not see any point in the parties continuing to incur the costs and burden of a criminal proceeding when the defendant has satisfied the Court that there is a sufficient defence as expressly provided for in the statute.

Order

22 The order of the Court is that the proceeding is dismissed. The exhibits may be returned.

Decision last updated: 21 November 2014