Hacienda Caravan Park Pty Ltd v Tweed Shire Council

File Number(s): 2024/377227

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is a Class 2 local government appeal pursuant to s 180 of the Local Government Act 1993 (LG Act) against the Order issued by the respondent on 16 September 2024 under item 27 in s 124 of the LG Act (Order), requiring the applicant to remove/relocate specified moveable dwellings from public land identified as Lot 3 in Deposited Plan 535174, located at Chinderah Bay Drive, Chinderah (Public Land).

2. The Court has power to dispose of these proceedings under its Class 2 jurisdiction pursuant to s 18(a) of the Land and Environment Court Act 1979 (LEC Act).

Background

3. The Public Land is zoned RE1-Public Recreation under the Tweed Local Environmental Plan 2014 (TLEP). The applicant in these proceedings owns land used as a caravan park immediately adjoining the Public Land, being Lot 2 in Deposited Plan 535174, known as 37 Chinderah Bay Drive, Chinderah (Applicant Land).

4. At the time the Order was issued (and as at the date of this judgment), it is agreed that part of the moveable dwellings located on sites identified as Sites 134, 135, 138 and 140-149 (13 sites in total) encroached from the Applicant Land onto the Public Land (Encroaching Structures).

5. Although the applicant owns the Applicant Land and manages the caravan park located on that land, it does not own the Encroaching Structures.

6. It was the respondent’s contention that the Encroaching Structures need to be relocated/removed on the basis that the Encroaching Structures:

7. are not authorised to be located on the Public Land by or under any Act;

8. restrict access to the Public Land which is contrary to its community land classification under the LG Act; and

9. are inappropriately located on the Public Land in circumstances where that land is mapped as subject to a “high flow of water” in the event of a flood.

10. On 20 August 2024, the respondent issued the applicant with a Notice of Intention to Give the Order (Notice).

11. Following a response from the applicant to the Notice, the respondent issued the Order on 16 September 2024.

12. On 11 October 2024, the applicant commenced the proceedings, being within the time period specified in s 180(3) of the LG Act.

13. On 25 March 2025, the parties participated in a conciliation conference pursuant to s 34 of the LEC Act, which was adjourned on multiple occasions. I presided over the conciliation conference.

14. During the course of the conciliation process, the parties reached agreement as to the resolution of both proceedings.

15. The agreement reached is for the Order to be substituted with a different order under item 27 of s 124 of the LG Act (Substituted Order) requiring the:

16. removal of the Encroaching Structures on or before 31 October 2027; and

17. regular notification to the occupants of the Encroaching Structures of the Substituted Order.

18. The parties provided a signed s 34 agreement on 17 June 2025 with an accompanying jurisdictional statement.

Substituted Order

14. To make orders in accordance with the parties’ agreement in the proceedings, I must be satisfied that the decision to make orders substituting the Order is a decision that the Court can make in the proper exercise of its functions (being the test applied by s 34(3) of the LEC Act). In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

15. Section 180(4) of the LG Act gives the Court broad powers on an appeal against an order issued under s 124 of the LG Act, as follows:

(4) On hearing an appeal, the Court may—

(a) revoke the order, or

(b) modify the order, or

(c) substitute for the order any other order that the council could have made, or

(d) find that the order is sufficiently complied with, or

(e) make such order with respect to compliance with the order as the Court thinks fit, or

(f) make any other order with respect to the order as the Court thinks fit.

16. It is clear that the Court has power to substitute an order pursuant to s 180(4)(c) of the LG Act.

17. I am satisfied the Order should be substituted in the manner proposed by the parties on the basis that:

18. The Substituted Order is agreed by the parties to be issued pursuant to Item 27 in s 124 of the LG Act, being an order “to remove an object or matter from a public place or prevent any object or matter being deposited there”. The applicant is the owner of land from which the Encroaching Structures emanate and is therefore able to be issued with the Substituted Order pursuant to Column 3 of Item 27 in s 124 of the LG Act. I note that the applicant was also able to be issued with the original Order for the same reason.

19. It is agreed that the Encroaching Structures are causing or likely to cause an obstruction or encroachment of the Public Land and are not authorised by or under any Act. Therefore, the Substituted Order falls within the scope of Column 2 of Item 27 in s 124 of the LG Act.

20. The Substituted Order requires the removal of the Encroaching Structures from the Public Land and therefore falls within the scope of Column 1 of Item 27 in s 124 of the LG Act. The parties agree that the Substituted Order is largely similar to the original Order, however, provides additional time for the Encroaching Structures to be removed. This is to accommodate the terms of the occupation agreements relating to the Encroaching Structures previously entered into by the applicant and the respective owners of the Encroaching Structures.

21. I am satisfied that the requirement in the Substituted Order to notify the occupants of the Encroaching Structures of the Substituted Order on specified dates, falls within the scope of s 180(4)(e) of the LG Act, being an order with respect to compliance with the Substituted Order and is appropriate in circumstances where the applicant does not actually own the Encroaching Structures and is trying to facilitate their removal with third parties.

Conclusion

18. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the Proceedings in accordance with the parties’ decision.

Orders

19. The Court orders that:

20. The appeal is upheld in part.

21. Pursuant to s 180(4)(c) of the Local Government Act 1993 (LG Act), the Order No. 27 issued by the respondent to the applicant dated 16 September 2024 under s 124 of the LG Act is substituted for the Order No. 27 in the terms set out at Annexure A.

N Targett

Commissioner of the Court

Annexure A (1.83 MB, pdf)

**********