Ballina Shire Council v Joblin

Land and Environment Court (NSW)|2022-04-19|Before: Robson J

Nellie Genevieve Joblin (Defendant) Representation: Counsel: L A Walsh (Prosecutor) M Harker (Defendant)

Solicitors: Parker & Kissane Lawyers (Prosecutor) Baker Mannering & Hart (Defendant) File Number(s): 2021/00341155 Publication restriction: Nil

Introduction and finding

In these criminal proceedings commenced by summons filed 1 December 2021, Ballina Shire Council ('Council') charges Nellie Genevieve Joblin, the defendant and registered proprietor of Lot 3 in DP525710 known as 16 Jarrett St, Ballina (the 'property'), with an offence pursuant to s 9.37 of the Environmental Planning and Assessment Act (NSW) ('EPA Act') for failing to comply with a development control order issued by Council on 19 July 2019 pursuant to s 9.34 of the EPA Act for the demolition of a swimming pool at the property ('Order').
On 18 February 2022, the defendant entered a not guilty plea and the Court made orders pursuant to s 247G of the Criminal Procedure Act 1986 (NSW) for a preliminary hearing to determine the defendant's collateral challenge that Council's Order is invalid on the basis that either the swimming pool is not a "building" for the purposes of Sch 5 of the EPA Act; and/or because the Order is uncertain.
In the summons, Council seeks orders pursuant to s 9.34(1)(a) of the EPA Act that the defendant (amongst other things) demolish the swimming pool and reinstate the ground at the rear of the property; and that Council be permitted to carry out such works at the defendant's expense if the defendant fails to comply within 28 days of a Court order. Alternatively, Council seeks orders pursuant to s 30(2) of the Swimming Pools Act 1992 (NSW) ('Swimming Pools Act') that the defendant fence or enclose the swimming pool in compliance with the Swimming Pools Regulation 2018 (NSW) ('Swimming Pools Regulation') and erect a sign in compliance with s 17 of the Swimming Pools Act and cl 10(1) of the Swimming Pools Regulation; and that Council be permitted to carry out such works at the defendant's expense if the defendant fails to comply within 28 days of a Court order.
For the reasons that follow, while I find that the swimming pool is a building for the purpose of a development control order under Sch 5 of the EPA Act, I find, against Council, that the Order is invalid due to uncertainty.

Background

The defendant has been the registered proprietor of the property since 20 January 1987, prior to which the defendant was a joint owner.
The improvements on the property relevantly comprise a single storey dwelling and an in-ground concrete swimming pool (of which the Court was provided photos). The swimming pool was constructed pursuant to Building Permit 123/80 granted by Council on 8 April 1980 which granted approval conditional upon the erection of a swimming pool barrier fence in accordance with Australian Standard AS1926.
On 30 May 2019, John Rushmore, a Development Compliance Officer employed by Council, issued a Notice of Proposed Order pursuant to Div 9.3 and Sch 5 of the EPA Act for the demolition and removal of the swimming pool on the basis that "it is or is likely to become a danger to the public; and, it is so dilapidated that it is prejudicial to persons or property in the neighbourhood". The Notice of Proposed Order provided a detailed "Background" recording Council's concerns and observations of Council officers over a number of years, the actions taken by Council in relation to its concerns (variously referred to as "compliance issues") regarding the swimming pool and stated, "[t]he issues included, but are not necessarily limited to, overgrown vegetation, pests and vermin, swimming pool water quality and safety, and the collapse of the swimming pool barrier". The Notice of Proposed Order then stated that Council intended to give the defendant a development control order and otherwise required the defendant to do certain things (including the demolition of the swimming pool structure) by 28 June 2019.
On 19 July 2019, Mr Rushmore having observed that no action had been taken to address Council's compliance issues, issued the Order pursuant to Div 9.3 and Sch 5 ("Order 3") of the EPA Act requiring the defendant, among other things, to demolish the swimming pool by no later than 16 August 2019.
The Order was in the form of a letter on Council letterhead addressed to the defendant. Having identified the defendant, the premises, and the date of the Order, the Order provided as follows (to which I have added underlining to certain words to reflect submissions made by the defendant): "Order Division 9.3 and Schedule 5, Environmental Planning and Assessment Act 1979 (NSW) Premises: Lot 3 Deposited Plan 525710, 16 Jarrett Street BALLINA (herein referred to as the "subject premises") Method of Service: Pre-paid Australia Post To: Mrs Nellie Genevieve JOBLIN 85 George Holt Drive MOUNT CROSBY QLD 4306 Date of Order: Friday, 19 July 2019 Ballina Shire Council previously advised you on 30 May 2019 of its intention to give you Order Number Three as set out in Division 9.3 and Schedule 5 of the Environmental Planning and Assessment Act 1979 (NSW) in respect to the subject premises. Background: For several years, commencing around 2005, Council has received many and repeated complaints which raised concern about a number of issues in respect of the care and management of the residential premises known as Lot 3 DP 525710 being No. 16 Jarrett Street Ballina. The issues included, but are not necessarily limited to, overgrown vegetation, pests and vermin, swimming pool water quality and safety, and the complete failure of the swimming pool barrier. Council has taken the following actions to inform you, as the absent subject premises owner, in a reasonable attempt to get a response to the complaints; 1. Issued general correspondence seeking a response to the complaints raised. 2. Issued multiple Notice of Proposed Orders under Section 132 of the Local Government Act 1993 (NSW) relating to the overgrown vegetation, harbourage of pests and vermin, and unhealthy state of the swimming pool. 3. Issued multiple Orders under Section 124 of the Local Government Act 1993 (NSW) relating to the overgrown vegetation, harbourage of pests and vermin, and unhealthy state of the swimming pool. 4. Issued Penalty Infringement Notice when swimming pool was not registered on the NSW State Swimming Pools Register as required under the Swimming Pools Act 1992 (NSW). 5. Issued defect correspondence and e-mails with respect to swimming pool barrier collapse and non-compliance under the Swimming Pools Act 1992 (NSW) and relevant Australian Standard. The last request received from you to have additional time to undertake works was made by telephone call on 13 January 2015. Council generously offered you until 20 February 2015 to complete the works. Despite Council repeatedly issuing written correspondence to you, no communication has been received to acknowledge or advise on actions that you might have considered to remedy the swimming pool defects on the subject premises. Council confirms that no written representations have been received in regards to this matter. The prolonged history of non-compliant swimming pool safety issues and your complete lack of communication and written representations to Council have been given due hearing and consideration. You are now advised that Ballina Shire Council will issue you with the Order as proposed. Pursuant to Division 9.3 and Schedule 5 of the Environmental Planning and Assessment Act 1979 (NSW) ("the Act"), Ballina Shire Council advises you that it will issue you with the Order, terms of an Order Number three as set out in Part 1 of Schedule 5 of the Act in respect to the subject premises. The Order: No. 3. To Do What: 1. Collect and properly dispose of all liquid waste from the swimming pool located on Lot 3 DP 525710 being 16 Jarrett Street BALLINA. The use of an appropriately licensed liquid trade waste contractor is recommended for the proper collection and disposal of the liquid swimming pool waste. Receipts should be obtained to verify the proper disposal of all liquid wastes. 2. Demolish the swimming pool structure and properly dispose of demolition wastes. 3. Apply "virgin excavated natural material (VENM)" to fill and reinstate the ground at the rear of the subject premises to provide a safe and level surface which does not allow for the ponding of surface water, and supports ongoing maintenance and safe use of the residential premises. Receipts should be obtained from the supplier of any VENM to verify that contaminated waste has not been buried on the subject premises. 4. Notify Council in writing that all works have been completed. NOTE: Heavy penalties under the Protection of the Environment Operations Act 1997 (NSW) may apply for improper disposal wastes, or contamination of residential land with waste materials which causes harm to the environment. Consultation with Council's Environmental Health Service is recommended where further clarification on such matters is required. Time Period for Compliance: Points one to four above to be completed by no later than 4:00 p.m., Friday 16 August 2019 Reasons for the Proposed Order: Ballina Shire Council's Authorised Officer has determined that you are required to carry out the above action for the following reasons: 1. The swimming pool is not being cleaned and maintained; and the water within the swimming pool is not being filtered or disinfected thus creating as serious water safety hazard to occupiers of the subject premises and to neighbouring premises. 2. The swimming pool is not being maintained to a minimum standard for safe and healthy water quality as specified within Schedule 1 of the Public Health Regulation 2012 (NSW). 3.(a) The swimming pool barrier is not compliant with the Swimming Pools Act 1992 (NSW) and Swimming Pools Regulation 2018 (NSW) thus causing a serious public safety risk to occupants and visitors to the subject premises and for children within the community. (b) The swimming pool barrier is not compliant with the Australian Standard AS 1926.1 - 2012 thus causing a serious public safety risk to occupants and visitors to the subject premises and for children within the community. 4. The unmaintained swimming pool has created unhealthy conditions conducive for the breeding of mosquitoes. Mosquitoes are not only a nuisance within the community of Ballina Shire but are also carriers of public health disease vectors, such as arboviruses, which can cause injury or long-term debilitating diseases for members of the community. 5. The unmaintained swimming pool has created unhealthy conditions conducive for the breeding and establishment of cane toads, which are a pest species that have a significant impact upon native fauna. 6. The long term failure to maintain the swimming pool on the subject premises has generated complaints to Council from the neighbourhood in regards to the unsightly and unhealthy conditions and the devaluation of real estate values for adjoining properties. 7. Council have provided more than reasonable opportunity and information to you to allow you to resolve these matters. You have not provided any reasonable explanation for the failure to maintain the swimming pool and swimming pool barrier over the previous 14 years. 8. You have not provided any adequate reasons to Council as to why this order should not be issued. Legal Proceedings: A Council Order, once it is served, has the force of law and the failure to comply with that Order is both an offence against the Act and also a breach of the Act. Ballina Shire Council may commence criminal proceedings to prosecute you for an offence against the Act, either in the Land and Environment Court or the Local Court. Alternatively, Ballina Shire Council may seek to restrain any breach of the Act in the Land and Environment Court or Local Court in civil proceedings. … Power to Give Effect to an Order: Should you fail to comply with the Order once it is served, Ballina Shire Council has the legal authority under the provisions of Schedule 5, Part 11, Section 33 of the Act to enter onto the subject premises, or to authorise its officers, agents or contractors, to enter onto property and to carry out the works required by the Order and to recover any expenses incurred together with all associated costs from you as a debt due to Ballina Shire Council. If Ballina Shire Council intends to carry out works within the subject premises to ensure compliance with an Order, you will be advised in writing prior to the works being undertaken by separate Notice. Continuing Effects of Orders: An Order that specifies a time by which, or a period within which, the Order must be complied with continues to have effect until the Order is complied with even though the time has passed or the period for compliance with the Order has expired. Appeal of an Order: In the event that Ballina Shire Council serves an Order under the Act, you and any person affected by the Order may appeal against the giving of the Order, or a specified part of the Order, to the Land and Environment Court within 28 days after the service of the Order. …"
The Order also provided details of the "Maximum Penalty" "on conviction" in the Land and Environment Court and/or the Local Court and Council's power to enter the premises and carry out works if there is failure to comply with the Order and various further terms that do not require consideration. No appeal to the Land and Environment Court was instituted.
On 2 December 2019, Mr Rushmore observed that no action had been taken by the defendant and between 11 December 2019 and 13 March 2020, Council and solicitors for the defendant exchanged correspondence in relation to the swimming pool; the defendant's failure to comply with the Order; various proposed and alternative actions (which included options which would not require the demolition of the swimming pool, such as temporary barriers or conversion into a garden) by which the defendant could alleviate Council's concerns in relation to the swimming pool (such that the Order could be withdrawn); and the action (or lack of) taken by the defendant and the defendant's reasons for delay.
On 22 May 2020, Mr Rushmore observed that some work appeared to have been commenced around the swimming pool but that no temporary barrier had been installed; and on 24 June 2020, he concluded that the defendant had not taken action to address the compliance issues raised by Council.
Between 21 December 2020 and 14 May 2021, Council and solicitors for the defendant exchanged further correspondence. Council issued a notice requiring the defendant to show cause as to why Council should not take further action; the defendant requested further time and later indicated an intention to provide a prompt update (which there is no evidence of being provided); Mr Rushmore observed that no further action had been taken at the property; and Council notified the defendant that the ongoing non-compliance would be considered at a Council Meeting on 27 May 2021.
On 1 December 2021, the defendant was charged by summons in these proceedings with one count of failing to comply with Council's Order.

Statutory framework

The defendant is charged with an offence under s 9.37 of the EPA Act in failing to comply with a development control order given by Council (as a relevant enforcement authority) under s 9.34 pursuant to 'Order 3' within Pt 1 of Sch 5 of the EPA Act. The relevant parts of those provisions are as follows.
Section 9.37 of the EPA Act relevantly provides: 9.37 Failure to comply with order - offence (1) A person to whom a development control order is given or is taken to have been given must comply with the terms of the order. (2) It is a sufficient defence to a prosecution for an offence against this section if the defendant satisfies the court that the defendant was unaware of the fact that the matter in respect of which the offence arose was the subject of an order. …
Section 9.34 of the EPA Act relevantly provides: 9.34 Orders that may be given (1) The development control orders that may be given under this Act are as follows - (a) general orders in accordance with the table to Part 1 of Schedule 5, … …
The 'table' in Pt 1 of Sch 5 (development control orders) relevantly provides in relation to Order 3:

Schedule 5 Development control orders Column 1 Column 2 Column 3 To do what? When? To whom? … A building - • requiring a planning approval is erected without approval, or 3 Demolish Works Order • requiring approval under the Local Government Act 1993 is erected without approval, or Owner of building or, if the building is situated wholly or partly in a public place, the person who erected the building To demolish or remove a building • is or is likely to become a danger to the public, or • is so dilapidated that it is prejudicial to persons or property in the neighbourhood, or • is erected in contravention of this Act.

Other orders in the table referred to in the defendant's submissions are Orders 10 and 11 which relevantly provide: Column 1 Colum 2 Column 3 To do what? When? To whom? … Stop Work Order Building work or subdivision work is carried out: • Owner of the land 2 To stop building work or subdivision work carried out in contravention of this Act • in contravention of this Act, or • Any person apparently engaged in the work • in a manner that would affect the support of adjoining premises. … Restore Works Order • The owner of the premises 10 To restore premises to the condition in which they were before unlawful building or other works occurred An unauthorised building has been the subject of a Demolish Works Order or unauthorised works have been carried out. • Any person entitled to act on a planning approval or acting in contravention of a planning approval • In relation to work unlawfully carried out that was the deposit of material in a public place, the person responsible for unlawfully depositing material in a public place 11 Compliance Order A planning approval has not been complied with. • The owner of the premises To comply with a planning approval for the carrying out of works • Any person entitled to act on a planning approval, or acting in contravention of a planning approval

Section 1.4 of the EPA Act defines "building" and "work" as: "building includes part of a building, and also includes any structure or part of a structure (including any temporary structure or part of a temporary structure), but does not include a manufactured home, moveable dwelling or associated structure within the meaning of the Local Government Act 1993. … work includes any physical activity in relation to land that is specified by a regulation to be a work for the purposes of this Act, but does not include a reference to any activity that is specified by a regulation not to be a work for the purposes of this Act. The carrying out of a work includes - (a) the renewal of, the making of alterations to, or the enlargement or extension of, a work, or (b) enclosing a public place in connection with the carrying out of a work."
The elements of an offence under s 9.34 of the EPA Act are, first, that Council issued an order; and second, that the order has not been complied with.

Defendant's position

The defendant contends that the summons should be dismissed because the Order is invalid either on the basis that Council had no power to issue the Order requiring demolition in circumstances where the in-ground swimming pool is not a "building" ('first contention'); and/or by reason of the Order's uncertainty ('second contention').
In relation to the first contention, the defendant submits that because the Order is an 'Order 3' order to demolish or remove "a building" pursuant to Pt 1 of Sch 5 of the EPA Act, it can only be issued in accordance with the relevant table in Sch 5 (extracted above at [18]); and because the swimming pool was not a building, the preconditions to the issue of the Order did not arise, the Order was not issued strictly in accordance with the table in Sch 5 of the EPA Act and it is therefore invalid (Bobolas v Waverley Council [2012] NSWCA 126; (2012) 187 LGERA 63 ('Bobolas') at [41]).
The defendant submits that it is clear from the language in each column of Order 3 in Pt 1 of Sch 5 that the subject of an order must be a building, such that the action required by an order is to "demolish … a building" and a development control order can only be issued to an owner of the building when a "building" falls within one of the five circumstances (referred to in submission as "dot points") in Column 2.
The defendant submits that it is clear that the draftsperson made a deliberate decision to use language which confined the subject of Order 3 within Pt 1 of Sch 5 to a "building" and which did not capture 'work'.
The defendant submits that a word (in this case, "building") used consistently throughout an enactment (in this case the EPA Act) is generally to be given the same meaning, particularly when the same word is used within one section (WorkPac Pty Ltd v Skene (2018) 264 FCR 536; [2018] FCAFC 131 ('WorkPac') at [106]; Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 ('Barrowcliff')); and although "building" is defined in s 1.4 of the EPA Act to include "any structure or part of a structure", this does not mean that every structure is a building, because "building" needs to be interpreted in its statutory context (particularly where "building work" in s 6.1 and "development" in s 1.5 of the EPA Act refer to the "erection of a building"). The defendant submits that references to "building" within Column 2 of Order 3 must be read as having the same meaning which reflects the first, second and fifth dot points of Order 3 which provide that an order can only be issued where a building is "erected".
The defendant submits that adopting Council's construction of "building" would be inconsistent with Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd (2018) 98 NSWLR 439; [2018] NSWCA 240 ('Hakea') at [97] (where the Court of Appeal found that a structure which is not "erected" cannot be a "building") and would lead to "building" being given different meanings in the various dot points within the same provision.
The defendant submits that the heading to Order 3 ("Demolish Works Order") does not expand the meaning of "building" to encompass all works or structures, as that would ignore the use of the word "erected" in the provision and the fact that works are referred to separately to buildings under Orders 2, 10 and 11 within Pt 1 of Sch 5 to the EPA Act.
The defendant further submits that although the heading may be relevant to the Court's consideration of the statutory context, the heading is not an operative provision and cannot govern the text of the EPA Act as Council suggests (KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 279 FCR 1; [2020] FCAFC 108 ('KDSP') at [289]). The defendant submits that the heading to Order 3 does not overcome the "disjuncture" within the EPA Act between a "building" and "works" nor the clear statutory indications within Sch 5 that "building" is to be given the same meaning throughout the statute, which include, first, the use of the word "erected" throughout Order 3, second, the separate references to "works" and "building" throughout Sch 5 (e.g. Orders 10 and 11), and third, the fact that Order 10 ("Restore Works Order"), which can be issued when "An unauthorised building has been the subject of a Demolish Works Order or unauthorised works have been carried out", is the only other order within Sch 5 that refers to a "Demolish Works Order".
The defendant, relying on Hakea and Thiele v Commonwealth (1990) 22 FCR 342 ('Thiele') at 349-350 (Hill J), submits that the swimming pool could not be described as being "erected" where it is an in-ground swimming pool below ground level which was constructed by digging a hole, laying reinforcing steel, and pouring concrete, and was not raised or put together upright; and that the EPA Act does not give "building" an expansive denotation to encompass all kinds of structures.
The defendant submits that Council's reference to and reliance on the Swimming Pools Act (noted below at [38]) is not helpful because the EPA Act must be construed according to its own terms, and because the defendant does not submit that a swimming pool is not a structure, only that it is not capable of being 'erected' (and is therefore not a building): Kismet Engineering Pty Ltd v Brisbane City Council (1959) 102 CLR 574 ('Kismet') at 582.
The defendant submits that Council's reliance on three judgments of commissioners of this Court (Ilardo v Liverpool City Council [2019] NSWLEC 1416 ('Ilardo'); Thompson v Liverpool City Council [2021] NSWLEC 1072 ('Thompson'); and Chandra v Campbelltown City Council [2021] NSWLEC 1471 ('Chandra') (considered below)), is of little assistance because at least Thompson and Chandra were made pursuant to orders provided by the parties under s 34 of the Land and Environment Court Act 1979 (NSW) after conciliation conferences and, specifically, in circumstances where Ilardo concerned an above ground pool, and Thompson concerned an in-ground pool which was removed prior to the conciliation conference that led to the judgment such that there was no relevant challenge for the Court to consider.
In relation to the defendant's second contention (that the Order is invalid because it is uncertain), the defendant submits that the Order did not (as required) convey to a reasonable reader that something needed to be done: Mailey v Sutherland Shire Council [2017] NSWCA 343; (2017) 226 LGERA 188 ('Mailey') at [67].
The defendant submits that the Order is unclear as it is expressed "in terms of futurity" and points to the following wording: "Council advises that it will issue you with the Order", "A Council order, once it is served…", "Should you fail to comply with the Order once it is served", "In the event that [Council] serves an Order…", "Council will issue you with the Order as proposed", and the heading "Reasons for the Proposed Order"; and where the Order variously refers to "an order" rather than 'the' or 'this' order - all suggesting an order is merely proposed to be issued in the future, rather than representing the Order to be a development control order requiring the defendant to do something.
The defendant also submits that the wording of the Order under the headings "Time Period for Compliance" and "Legal Proceedings" is in the same language as was used in the Notice of Proposed Order, such that the Notice of Proposed Order and Order are not distinguishable.
In summary, the defendant submits - that a reasonable reader would not be satisfied, considering the language used, that the Order required immediate compliance, and is not simply a further warning; that the Order's wording is analogous to that considered in Bobolas (at [5], [41], [43], [47]-[49]), and Manly Council v Leech [2015] NSWLEC 149 ('Leech') (at [25]), which were found to be uncertain because they were expressed in terms of futurity; that the Order needs to be clear on its face without consideration of the history of the compliance issues; and that it is irrelevant whether it could be gleaned from the correspondence between Council's solicitor and the defendant's solicitor that the defendant understood the Order, when the question is objective as to what a reasonable person would understand the Order to mean.

Council's position

In response to the defendant's contentions, Council submits that the swimming pool is a building and ought properly be regarded as coming within the terms of Order 3 under Sch 5 of the EPA Act, and that the Order is both clear and validly issued.
Council submits that while the Court of Appeal in Hakea appeared to suggest that a structure that was never 'erected' does not fall within the concept of a "building", the Court also stated that the terms "building" and "structure" are not to be interpreted restrictively and must take into account the statutory context in which the term is used (at [95] per Basten JA); and that where "building" has an "expansive meaning" under s 1.4 of the EPA Act, a swimming pool is not a moveable dwelling (or an associated structure under the Local Government Act 1993 (NSW)), and where s 3 of the Swimming Pools Act provides that a "swimming pool" means "an excavation, structure, or vessel", the subject pool is clearly regarded as a structure within the definition provided in the EPA Act and within the context of the Order.
Council also notes that Order 3 is the only order (of all the orders within Sch 5 of the EPA Act) that is appropriate to the enforcement of compliance with Council's requirements in the circumstances and that the defendant has not suggested that Council ought to have issued an order under another provision of the EPA Act.
Council submits that Hakea had nothing to do with development control orders issued under Sch 5 of the EPA Act; that the issues in Thiele (as relied upon by the defendant) had nothing to do with development control in circumstances where the Court was required to determine the construction of words in the Compensation (Commonwealth Government Employees) Act 1971 (Cth) and, in particular, whether it was reasonable for Mr Thiele's employer to pay for the construction of a hydrotherapy pool. Moreover, Council submits that the definition of "building" must be determined in the context of the EPA Act and judgments decided in this Court dealing with non-compliance with council development control orders, such as Thompson (where there was no issue with the terms of an order applying to a non-portable in-ground swimming pool), Chandra (where the Court made orders pursuant to Order 11 of Sch 5 of the EPA Act in relation to a portable spa pool), and Ilardo (where the Court contemplated that an above-ground swimming pool came within an order under Sch 5 of the EPA Act).
Furthermore, in response to the defendant's submission that the meaning of "building" within all dot points within Order 3 should be based upon the first, second and fifth dot points (as noted at [26]), Council submits that the Order was issued in reliance on the third and fourth dot points of Column 2 of Order 3 within Pt 1 of Sch 5 of the EPA Act which have nothing to do with the 'erection' of a building, and not the dot points that the defendant raises.
In relation to the defendant's second contention, Council submits that the Order is clear and precise in its terms, such that the defendant knew precisely - the conduct sought to be remedied, the actions the defendant was required to take, and the timeframe in which such actions were required to be completed: Foster v Sutherland Shire Council [2001] NSWLEC 89; (2001) 115 LGERA 130 at [8]-[14]; Mailey at [57]; Bobolas at [44].
In response to the defendant's examples of 'unclear' language within the Order (namely, that "a council order once it is served has the force of law"; "should you fail to comply with the order once it is served"; and "in the event that [Council] serves an order under the [EPA Act]"), Council submits that this language appears underneath various headings (including "Background", "Power to Give Effect to an Order", and "Appeal of an Order") which are directed to providing the defendant with general information regarding the legal effect of orders and avenues of appeal, and are not incorporated within the Order itself, which Council submits stands alone (from those statements "of general applicability") in clear and concise terms.
Council submits that the Court would conclude that the Order, construed in the context of communications between the defendant and Council (as noted in the Order) seeking additional time to undertake works subject of the Order, provides enough information for the defendant to know precisely what the defendant was required to do and when.
In the circumstance where the Order left the defendant in no doubt as to what it required, Council submits that the defendant's collateral challenge is "disingenuous in seeking to raise technical points to escape [the defendant's] obligation to remedy the conduct clearly described in the Order" in circumstances where the defendant was aware that they were responsible for addressing the compliance issues.

Consideration

Before considering the substantive issues addressed by the parties, I note two matters. First, the defendant raises a collateral challenge to Council's Order. In Gray v Woollahra Municipal Council [2004] NSWSC 112, Whealy J (at [58]-[95]) considered a number of decisions, both in the United Kingdom and Australia, and accepted that there was an entitlement in criminal proceedings to raise a collateral challenge in relation to the validity of an order under the EPA Act subject to whether the statute creating the offence placed any clear restriction on the ability to raise such a challenge. Subject to my consideration of the relevant provisions of the EPA Act below, I consider that it is open for the defendant to mount a collateral challenge to the validity of the Order as a defence in these criminal proceedings and that only the clearest language in a statute should be found to take away this right where a prosecution is premised upon the validity of an order: Ousley v The Queen (1997) 192 CLR 69; [1997] HCA 49 at 79-80 (per McHugh J), 100 (per Kirby J); Gray at [51]-[112]; Selby v Pennings (1998) 102 LGERA 253 at 265 (per Ipp J); Sutherland Shire Council v Benedict Industries Pty Ltd (No 4) [2015] NSWLEC 101 at [9].
Second, while I note the sometimes quoted "rule" of strict construction, that a statute or provision with penal consequences should be construed strictly to avoid extending the category of criminal offences, I consider it unhelpful in the present circumstances where it is, at most, a rule of "last resort". The rule does not displace the ordinary rules of construction and the requirement to give words of a provision their fair meaning; may only be used where the language of a statute remains ambiguous, having found no guidance in all other indicia of interpretation; and a statute's penal character is to be regarded as a very minor consideration in ascertaining its legal meaning: Grajewski v Director of Public Prosecutions (NSW) [2017] NSWCCA 251 at [55] (Leeming JA); Chief Environmental Regulator of the Environment Protection Authority v The Forestry Corporation of New South Wales [2018] NSWLEC 10 at [47]-[54].
The defendant's first contention requires consideration of whether the subject swimming pool is a "building" for the purpose of Sch 5 of the EPA Act. Subject to matters considered below, taking into account text (of Sch 5), context (of the use of the term "building") and purpose (of the EPA Act, Order 3 and development control orders), for the reasons that follow, I find that, on the evidence before the Court, the swimming pool is a building and/or structure which fits plainly in the definition of 'building'.
The definition of "building" in s 1.4(1) of the EPA Act includes "any structure or part of a structure (including any temporary structure or part of a temporary structure)". Although accepting that it is not always appropriate to insert discrete definitions (for example "structure") into broader wording (such as "building"), in simple terms, I consider that "building" as defined includes the construction (or structure) associated with the in-ground pool in question which involved, at least, and as accepted by the defendant, excavation, the laying of steel reinforcement and concrete pouring of the pool, in addition to the construction of above-ground level concrete capping.
However, although it is clear that "structure" is a wider term than "building", the question is whether the reference to "structure" in the definition of "building" expands the concept of a "building" to the extent it includes the swimming pool structure. This question has been directly and indirectly considered in various authorities.
In Royal Motor Yacht Club (Broken Bay) Pty Ltd v Northern Beaches Council [2017] NSWLEC 56 ('Royal Motor Yacht Club'), Preston J , determining whether swing moorings constituted a "building" or moreover a structure (in circumstances where the definition of "building" within cl 59 of the Warringah Planning Scheme Ordinance 1963 included "any structure or part thereof"), considered that three criteria were relevant, first, the structure must be of some considerable size or substance; second, the structure must be sufficiently affixed to land; and third, the structure must remain permanently or indefinitely on the land.
Although not determinative in my overall findings, adopting these criteria, I find that the swimming pool is plainly a 'structure' in that it is (as can be seen from the photos in evidence), first, of a considerable size and substance in that it involved substantial excavation and associated building or works; second, it is affixed to and recessed in the land; and, third, it is a structure which will, in a relative sense, remain indefinitely on the land by virtue, at least, of its beneficial addition to the amenities of the land, its design and construction.
In Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302, the Court of Appeal was considering whether gates on a property were "buildings" for which development consent was required and had not been obtained, and Mahoney JA, having expressed reservations as to whether gates were buildings, cautioned, that although the definition of "building" (in that matter) included "any structure or part thereof", it could not be said that a structure of any kind may not be erected or altered without Council approval and, stated at 306-308: "It is in my opinion plain that the generality of the expressions used must be restricted if they are to perform the function which the legislature intended and to do so without extending to things which were never envisaged. The too literal construction of definitions of this kind would, in my opinion, be both unsatisfactory and wrong. … If read literally the administration of them would in practice be unworkable … The better approach is, in my opinion, to determine what things or actions come within such terms by reference to the purposes which the provisions were enacted to achieve. This is, of course, a long recognised approach to the construction of statutes; more recently, it has been described as 'purposive'. … In principle, the purposive approach to construction of, for example, 'structure' or 'erect' would proceed in a manner such as the following. The Court would determine the purposes which the legislature sought to achieve by prescribing that no structure may be erected without council approval. … It would not give to the terms a meaning which had no relevance to the achievement of that purpose."
His Honour's words were noted by Basten JA in Hakea at [93], who accepted that whilst the term "structure" included a building when given its ordinary meaning, how far "structure" could be further expanded was to be derived from the statutory context. His Honour considered the concept of "development" (which itself was defined in s 5(1) (now s 1.5(1)(c)) to include "the erection of a building"), being a critical concept in the EPA Act which underlies the system of regulation, and found, in the circumstances of that case, that a structure cannot be described as a "building" within s 4(1) (now s 1.4(1)) of the EPA Act unless it can be said to have been "erected"; and the fact that something may stand above the natural level of the land at a level of permanence, or is largely immovable, is not "sufficient" to make that thing a structure (and therefore a building).
Although the defendant relied upon Hakea, I do not consider that it provides support for the defendant's position because although Basten JA (with whom Meagher JA and Preston CJ of LEC agreed) found (at [97]-[98]) that a road constructed over adjacent land could not be identified as a "building" because, in the circumstances, it had not been "erected", that case did not concern a development control order issued under Sch 5 of the EPA Act, and the reasoning (of Basten JA at [92]) emphasised that the context of words within the relevant statute (and I interpolate a particular part of a statute) is necessary in order to adopt a purposive construction.
Given the above judicial commentary, even if it is too simplistic to suggest that the pool is a "structure" and therefore is literally caught in the definition of "building", seen in the context provided by Sch 5 and the purposes for which the provisions were enacted to achieve (Mulcahy at 306-308), I consider it appropriate to adopt a purposive construction based upon text, context and purpose as required by s 33 of the Interpretation Act 1987 (NSW) ('Interpretation Act') (considered further at [58] below).
Although the defendant submits that Thiele (notwithstanding that it concerned Commonwealth legislation) remains relevant to the interpretation of "building" within the EPA Act because Hill J, in accordance with the ordinary meaning of the word 'building', found that every building is a structure but not every structure is a building, I do not consider Thiele to be applicable to the present circumstances where the Court was concerned with whether installing a swimming pool which had been recommended for hydrotherapy treatment of injuries was compensable under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) and found (at 350) that the swimming pool could not be considered to be a "building" when adopting "ordinary usage" of the word, and where, as considered below, I find that a purposive interpretation of "building" is preferrable to its ordinary meaning in the present circumstances.
As such, I consider that in construing "building", a meaning which accords with the purpose the legislature intended the provision to achieve, even if that approach may trump an "ordinary" interpretation of the words, is to be preferred (for example, Lawson v Minister for Environment & Water (SA) [2021] NSWCA 6; (2021) 246 LGERA 421 at [25] (Bathurst CJ)) conscious of planning law's concern for matters such as safety and stability of structures (Royal Motor Yacht Club at [149]); and I consider that the word 'building' within Order 3 (and within Sch 5) must be interpreted within the context in which it is used, which exposes the purpose to which it is directed (Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 ('Sydney Seaplanes') at [31]). I find that it is consistent with the text, context and purpose to find that the term "building" in Order 3 is not confined to buildings and structures "erected" (in the sense of erected above-ground) and its purpose is to provide for the regulation of the safe and orderly use of land such that the term "building" in this context would be given a meaning that includes, in the present circumstances, the swimming pool.
Furthermore, I give little weight to the heading to Order 3 conscious that it does not form part of the text of the EPA Act (Interpretation Act s 35(2)(a)), even though it is arguably relevant to the statutory context. If I were to give the heading weight, it would further support my view that the term "building" applies more broadly than the defendant submits, to at least include more than just "buildings" which are "erected". Having found that the meaning of "building" is not constrained by a requirement to be 'erected', although it does not require comment, I accept that Council was entitled to rely upon the third and/or fourth dot point of Column 2 within Order 3, Pt 1 of Sch 5 (or any other dot point if the factual circumstances otherwise permitted) as a basis to issue the Order, and it is not the case that the first, second and/or fifth dot points qualify the meaning of "building" as it applies to the third and fourth dot points within Column 2.
It follows from the above that I agree with Council's position that interpretation should proceed by construing the meaning of "building" in its statutory context, and not interpreting 'building' and 'structure' restrictively, with the effect that I do not accept the defendant's submissions (noted at [26] above) that the definitions of "building work" and "development" (which contain "erection of a building") are of assistance in the construction task.
Furthermore, although the defendant is correct that a word used consistently through an enactment is generally assumed to be given the same meaning throughout (Barrowcliff at 452 (Hodges J)), I do not accept the defendant's submission that all references to building must match the first, second and fifth dot points within Order 3 such that a building is only a "building" if it is 'erected', where this assumption is not meant to be rigidly adopted and is in fact rebutted where, as I have found above, the use of the term is considered contextually and purposively and in light of the EPA Act (WorkPac at [106]). Moreover, as noted above, I find that the text, context and purpose do not support a narrow interpretation of the word "building" within at least Order 3 in Pt 1 of Sch 5.
Before turning to my consideration of the defendant's second contention, despite my findings above, I disagree with Council's submission that the pool is a building simply because it is immoveable. While a structure may be identified (pursuant to Preston J's criteria in Royal Motor Yacht Club) if it satisfies three criteria, including that it is permanent or immovable, those characteristics alone (as explained in Hakea at [97]) are not sufficient to make the pool a 'structure' (let alone a 'building'), and I consider that this view is supported by the fact that the definition of "building" within s 1.4(1) of the EPA Act includes temporary structures.
Moreover, I do not accept that Council's reliance on s 3 of the Swimming Pools Act assists the determination of the present issue. While there is on occasion flexibility to refer to the definition or use of a term in one statute to assist with identifying its meaning within another where the statutes are in pari materia or meant to be read together (Federal Commissioner of Taxation v Henderson (1943) 68 CLR 29; Bistricic v Rokov (1976) 135 CLR 552 at 558 (Mason J)), the definition of 'building' within the EPA Act exists for the purposes of the EPA Act and its related instruments and there is no indication, particularly because the terms and phrases are not identical, that the definition of "swimming pool" as a "structure" within the Swimming Pools Act should qualify the definition of "building" within the EPA Act such that all swimming pools are captured within the EPA Act's definition of building by way of its inclusion of "structure": Yager v R (1977) 139 CLR 28 ('Yager v R') at 43 (Mason J). Therefore, as the defendant submits, the EPA Act (or at least the definition of "building" within s 1.4) must be construed according to its own terms.
Although it could be said that the EPA Act is of general application (Yager v R) and, in this light, the Swimming Pools Act works alongside it (in terms of the purpose it fulfils) and noting that the Order recorded (as a reason for the Order) that the swimming pool was not compliant with the Swimming Pools Act and Swimming Pools Regulation, such that the EPA Act is the statute through which an order was made to enforce the standards within the Swimming Pools Act, I find (as I have above at [63]) that the definitions within each statute, at least in these circumstances, are not to be interpreted by reference to one another.
Finally, although I note the three cases decided by Commissioners of this Court upon which Council relies, I do not find them helpful because, although they involved various development control orders, they did not address the discrete issue presently in dispute.
I now turn to the defendant's second contention. An order requiring someone to do (or not to do) something that is subject to penal consequences, and the authorising statute, are to be strictly construed. Relevant to both of the defendant's contentions, the validity of such an order depends on strict compliance with the statutory conditions governing its issue and will not be enforced unless it is expressed in clear and unambiguous language: George v Rockett (1990) 170 CLR 104; [1990] HCA 26 at 110-111; State of New South Wales v Corbett (2007) 230 CLR 606; [2007] HCA 32 at [87]-[88], [105]; Bobolas at [41]-[50].
Simply stated, an order must convey clearly and unambiguously to the person to whom it is given what the person is being ordered to do or refrain from doing in order to comply and cannot be merely a statement of intention to issue such an order in the future: Bobolas [44]-[47]; Mailey [67], [73]. As noted by Biscoe J in Leech at [22], there is a close analogy with the principle that, because of the potentially serious consequences, a person will not be found in contempt of court for breach of a court order that is not clear and unambiguous.
The relevant content of the Order is detailed (at [9] above) and I have noted the words and phrasing relied upon in my summary of the defendant's submissions at [34] and [35].
While I accept that the task before the Court is one of objective construction of the Order itself, perusal of the wording of the Notice of Proposed Order indicates that, as would be expected, some of the wording in the Order relied upon by the defendant (in its "futurity" argument) appears in exactly the same form as it appeared in the Notice of Proposed Order. While it is clear that Council sought to comply with its statutory obligation to provide notice of the proposed order, and that the defendant may have had some awareness of Council's earlier position, these matters are not relevant to the objective construction of the Order.
Whether the Order is uncertain requires interpretation of its text. As the Order may be characterised as an 'instrument' (McCudden v Cowra Shire Council [2016] NSWLEC 14; (2016) 216 LGERA 219, Craig J at [26]-[30]), I am comfortable in finding that the Order is an 'instrument' for the purposes of s 3 of the Interpretation Act and that the principles of statutory interpretation relating to instruments can be applied: MLC Properties v Camden Council [1997] NSWLEC 130; (1997) 96 LGERA 52 at 58-59.
Briefly stated, I consider that a development control order issued under Pt 9 of the EPA Act is to be read according to the ordinary rules of construction, having regard to the statutory provisions governing its issuance and according to its written terms; and that the meaning of the language used in a development control order is to be determined objectively in the context of its enduring function (see Note 2 within s 9.37 and Sch 5, cl 26): The Owners - Strata Plan No. 4983 v Canny [2018] NSWCA 275 at [59]-[65]; Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2018] NSWCCA 202; (2018) 362 ALR 359 at [34]-[35].
Given that the task of the Court is one of objective construction of the document and given the defendant's position, the essential question is whether, in all circumstances, the five references raised by the defendant to various words (and wording), particularly the reference to "will" on two occasions, and the bold heading "Reasons for the Proposed Order", considered in the context of the whole of the document (but not the previous intercourse between Council and the defendant), leads the Court to the view that the Order is not expressed in clear and unambiguous language.
I find that the requirement for clear and unambiguous language is now well understood particularly in relation to notices and orders issued by regulatory authorities, and the principles and approach I adopt have been consistently and regularly applied by this Court: Foster v Sutherland Shire Council [2001] NSWLEC 89; (2001) 115 LGERA 130 at [8]-[10]; Barclay v Wollongong City Council [2005] NSWLEC 160; (2005) 139 LGERA 167 at [35]-[36].
Applying the above principles and accepting that each determination depends upon its own facts, I have come to the view, particularly given the consequences of non-compliance, that the Order is not expressed in sufficiently clear and unambiguous language and it is therefore invalid. It follows that I generally accept the submissions of the defendant summarised at [36] above.
Although the discrete matters of wording specifically relied upon by the defendant were the part of the document headed "The Background", and under the more explanatory headings, being "Legal Proceedings", "Power to Give Effect to an Order" and "Appeal of an Order", and the specific heading "Reasons for the Proposed Order" and, relevantly, not under the heading "The Order: No. 3." and "To Do What", I am of the view that there is a sufficient element of futurity such that the Order is uncertain and therefore invalid. While focus is often placed upon whether the precise text defining what is to be done, sometimes under the heading "To Do What", within a development control order (for example, in Mailey at [58]), that part of an order must be read in the context of the order as a whole. I therefore reject Council's submission (at [43] above) that, in effect, invites me to give little weight to this context. I find, when the Order is read as a whole, that it would be unclear to a recipient whether or not the document is itself a development control order requiring enforceable compliance (or, as the defendant submits, a form of further notice or warning).
I consider this view sits comfortably with the approach of the Court of Appeal in Bobolas, and Biscoe J in Leech, and although I note that the issues of futurity manifested in the notices in those matters may have been more obvious (referring, for example, to "Terms of Proposed Order" in Bobolas, and where the words indicating futurity in Leech were in the heading and chapeau to the order), I consider that the use of wording such as "will issue you with an order as proposed"; "…Council advises that it will issue you with the Order, terms of an order number three…"; "Reasons for the Proposed Order"; "a Council Order once it is served…"; "should you fail to comply with the Order once it is served…"; and "in the event that Ballina Shire Council serves an Order under the Act…", considered in the context of the whole of the Order, leads me to the view that the Order is invalid because it is uncertain.

Conclusion

In summary, I find that, in the present circumstances, the swimming pool is a "building" for the purpose of Council issuing a valid development control order in the form of Order 3 within Pt 1 of Sch 5 of the EPA Act, in accordance with s 9.34, and in turn for the purpose of an offence under s 9.37; however, I find that the terms of the Order are sufficiently uncertain such that that it may be declared invalid.
It is clear that an essential element of the offence under s 9.37 of the EPA is the giving of a valid development control order to the defendant. Having found that the Order given to the defendant is not valid (because its terms are uncertain), an essential element of the offence under s 9.37 could not be proved at final hearing and my findings effectively determine the proceedings. Given my findings, as I consider that the Court has power to summarily dismiss the proceedings (despite this being a preliminary hearing pursuant to s 247G of the Criminal Procedure Act 1986 (NSW)) where an essential element of the alleged offence is found to be lacking (Environment Protection Authority v Eastern Creek Operations Pty Ltd [2022] NSWCCA 97; (2022) 251 LGERA 55), it is appropriate to dismiss the proceedings.

Orders

The Court: 1. Declares that the development control order issued on 19 July 2019 by Ballina Shire Council to Nellie Genevieve Joblin pursuant to s 9.34(1)(a) of the Environmental Planning and Assessment Act 1979 (NSW) is invalid. 2. Orders that the proceedings are dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 July 2022

Environment Operations Act 1997(NSW)

Public Health Regulation 2012(NSW)

Government Employees) Act 1971(Cth)

(2005) 139 LGERA 167

(2001) 115 LGERA 130

(2021) 249 LGERA 109

(2021) 246 LGERA 421

(2017) 226 LGERA 188

(2016) 216 LGERA 219

(1998) 102 LGERA 253

At a glance

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Judgment (14 paragraphs)

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Cases Cited (52)

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