1. The enforcement notice NC-24-0009 dated 17 December 2024 issued by Des Jennings to Live Fish Tasmania Pty Ltd in respect to the property at 31 Cambrook Lane West, Evandale in Tasmania is varied by substituting the date 30 June 2025 for the date 31 January 2025 under the Heading "Requirements of Enforcement Notice".

2. Any application for an order for costs in the appeal is to be made in writing with supporting submissions within 21 days. If no application is so filed each party is to bear their own costs.

Environment and planning - Enforcement notice under s 65C of the Land Use Planning and Approvals Act 1993 - Two shipping containers on a multiple dwelling residential site used for storage for the dwellings - Nature of the proceedings - Whether the shipping containers are structures - Whether the shipping containers are outbuildings - Whether the shipping containers constitute development in contravention of the planning scheme - Factors relevant to exercise of discretion

Land Use Planning and Approvals Act 1993;

Tasmanian Civil and Administrative Tribunal Act 2020;

Building Act 2016;

Building Act 2016;

Evidence Act 2001;

Building Regulation 2006 (Qld);

State of Tasmania v Anti-Discrimination Commissioner [2022] TASSC 20;

D & L Plumb v Clarence City Council [2022] TASCAT 60;

Jackson v Purton [2011] TASSC 28;

Purton v Jackson [2012] TASFC 2;

M & J Purton v Waratah-Wynyard Council and D & V Turner [2022] TASCAT 92;

Watson v Monash City Council [2011] VCAT 2176;

Tanah Merah Vic Pty Ltd v Owners' Corporation No 1 of PS631436T [2021] VSCA 72;

Dean-Willcocks v Commonwealth Bank of Australia [2003] NSWSC 466;

Winter v Kingborough Council & South Arm Pipeline Pty Ltd (No.2) [2024] TASCAT 201;

Briginshaw v Briginshaw [1938] HCA 34;

Gray & Pratt v Bartlett [2023] TASCAT 185;

R v Resource Management and Planning Appeal Tribunal; ex parte Calvary Hospital Hobart Inc [2000] TASSC 19;

Cai v Launceston City Council [2024] TASSC 10; Wilhelm v Logan City Council & Ors [2020] QCA 273;

Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257

1. The appellant has appealed an enforcement notice issued by an agent of the Northern Midlands Council under 65C of the Land Use Planning and Approvals Act 1993 (LUPAA).
2. The enforcement notice concerns the locating and use of two shipping containers on residential land at Evandale.
3. The enforcement notice also concerned certain other matters relating to conditions of a planning permit, but those matters were resolved and not pursued at hearing.

1. The enforcement notice is addressed to the appellant. It alleges a contravention of s 63(2) of LUPAA:

(2) A person must not use land in a way, or undertake development or do any other act, that -

(a) is contrary to a State Policy or a planning scheme; or

(b) impedes or obstructs the execution of any such scheme; or

(c) constitutes a breach of a condition or restriction of a permit imposed by a planning authority pursuant to any such scheme or a determination of the Appeal Tribunal; or

(d) constitutes a breach of section 60S(1) or of a condition or restriction imposed under section 60ZZP , as amended or corrected, if at all, under section 60ZZW , 60ZZY or 60ZZZ , on a major project permit granted in relation to the land.

1. Section 63(3) provides:

(3) A person who contravenes subsection (2) is guilty of an offence punishable, on summary conviction, in accordance with subsection (4).

1. Section 65C(1) provides:

(1) An authorised officer who reasonably believes a person has committed, is committing, or is about to commit, an offence against section 57(4A), section 60ZB(1), section 63(3) or section 64(7) may issue a notice (an enforcement notice) in relation to the offence and serve it on the person.

1. The alleged contravention is development contrary to the Tasmanian Planning Scheme - Northern Midlands (the Scheme). The alleged development is the location of two shipping containers on a site at Evandale without planning approval in contravention of cl 6.4.1(a) of the Scheme. Clause 6.4.1(a) provides:

6.4.1 Except as provided in subclauses 6.5 and 6.6 of this planning scheme, use or development of land must not be commenced or carried out:

(a) without a permit granted and in effect in accordance with the Act and the provisions of this planning scheme.

The exceptions in cl 6.5 and cl 6.6 do not apply in the circumstances of this case. The Council's case is that by reason of the contravention the appellant has committed an offence against s 63(3), so enabling the authorised officer to issue the enforcement notice under s 65C(1).

1. The enforcement notice was issued on 17 December 2024 by Mr Des Jennings. Mr Jennings is an authorised officer for the purposes of issuing an enforcement notice by reason of his being the General Manager of the Council: s 65I.
2. The enforcement notice requires that the shipping containers be removed from the land.

1. The sole ground of appeal is in the following terms:

1. No contravention of Section 63(2) of the Land Use Planning and Approvals Act has occurred and the Notice should be struck down as void.

• (A) Shipping containers are not recognised as Buildings as defined by any law and the Enforcement Notice requiring removal of shipping containers is unable to be issued as the Council has no power to do so.

1. Put simply, the Council contends that the placement of the shipping containers on the site is development under LUPAA by the placing of a building on land which requires a permit. The appellant contends that shipping containers are not buildings, that the placement of the shipping containers on the property is not development, that a permit is not required and that the Council has no power to compel the removal of the shipping containers.

1. The parties filed a statement of agreed facts and evidence was given for the Council by Ms Brandie Strickland. Ms Strickland is a statutory planner with the Council. She is responsible for investigating and assessing compliance with planning controls. A statement of evidence by Ms Strickland was tendered and she was cross-examined.
2. The agreed facts include the following:
   • There are three dwellings on the site.
   • Two shipping containers have been placed on the site.
   • The shipping containers are used for storage associated with the residential premises.
   • The shipping containers have been onsite since March 2024.
   • The appellant owns the site.
3. A further agreed fact was that the enforcement notice was validly issued under s 65C of LUPAA. Section 65C(1) provides that an authorised officer who reasonably believes a person is committing an offence against s 63 may issue an enforcement notice. At the hearing I expressed concern that it was not apparent from Ms Strickland's statement of evidence that Mr Jennings had actually formed the requisite belief for the purposes of s 65C(1). The power to issue an enforcement notice depends on the formation of a state of mind by the authorised officer, being the reasonable belief that a person has or is committing an offence. The existence of that state of mind constitutes a jurisdictional fact: State of Tasmania v Anti-Discrimination Commissioner [2022] TASSC 20 [19]. I therefore gave leave to the Council to lead evidence from Ms Strickland on this point. I am satisfied from her description of the circumstances in which she provided material to Mr Jennings, the material provided, the period of time over which he considered the material and his engagement with Ms Strickland, that he did not simply sign the notice placed before him, but would have formed an opinion in respect to the issue of the notice.
4. Ms Strickland explained that there is a permit for the multiple dwellings on the site. The permit does not include the containers.
5. Ms Strickland inspected the site on 13 March 2024 and observed the two containers on the site. She observed that the shipping containers appeared to be used for storage associated with the residential use on the site. Her evidence in chief set out a history of communications and steps leading to the issue of the enforcement notice, which was not controversial. There was no evidence that the containers have since been removed from the site, or that they are being used for any other purpose. By the date of the hearing the containers had been on the site for a year.
6. Ms Strickland's evidence also included her reasoning for forming the view that the containers constituted development for which a permit is required That evidence was objected to by the appellant. I admitted the evidence as explaining Ms Strickland's state of mind to provide context for the circumstances of the issuing of the enforcement notice, not as evidence of the correctness of her reasoning as to the lawfulness of the notice, which is a matter for the Tribunal.
7. I am satisfied that the containers are not being stored on the land, nor that they were placed there temporarily. I find that they have been placed on the land for a use which is associated with and serves the residential use of the land, and, subject to the outcome of this appeal, that they are to remain on the site.

1. The Tribunal considered the proper approach to an appeal of an enforcement notice in D & L Plumb v Clarence City Council [2022] TASCAT 60 (Plumb). That case involved the issue of an enforcement notice alleging development outside the terms of a planning permit.
2. At [24] of Plumb the Tribunal determined that an appeal is by way of a hearing de novo, not a rehearing. That decision was made under the former Resource Management and Planning Appeal Tribunal Act 1993. That approach is confirmed by s 75(2) of the Tasmanian Civil and Administrative Tribunal Act 2020 (the TASCAT Act) which expressly provides that a review by the Tribunal of a decision made under an Act allocated to the Resource and Planning Stream is to be by way of a hearing de novo. LUPAA is such an Act: cl 3 of Pt 8 of Sch 2. Accordingly I must form my own view as to whether an enforcement notice should issue, rather than determining whether the authorised officer made some legal, factual or discretionary error.
3. At [25] of Plumb the Tribunal described the task before it as first to determine whether the evidence causes the Tribunal to form a reasonable belief that the development or use of the land is contrary to s 63(2).
4. Plumb considered the standard for reasonable belief at [26]-[28] and concluded at [29] that in order to hold a reasonable belief for the purposes of s65C(1):

1. there must exist facts that are sufficient to establish reasonable belief that the Appellants have committed or are committing an offence against s63(3);

2. belief in this context is an inclination of the mind towards accepting, rather than rejecting the proposition that the Appellants have committed, or are committing an offence against s63(3); and

3. the evidence must be sufficient to point clearly to the Appellants having committed or committing an offence against s63(3), but it is not necessary that the evidence be sufficient to establish belief on the balance of probabilities.

1. If the requisite belief is formed, the issuing of an enforcement notice is discretionary: Plumb at [30]-[36]. The Tribunal is to determine whether the decision to issue the enforcement notice should be affirmed, varied or set aside and substituted with the Tribunal's own determination or remitted to the authorised officer: s 78(1) of the TASCAT Act.

1. The enforcement notice alleges development contrary to the Scheme. The appellant contends that the shipping containers are not development.
2. Table 3.1 of the Scheme adopts the definition of 'development' in s 3 of LUPAA, which includes in (e) the placing or relocation of a building on land:

(a) the construction, exterior alteration or exterior decoration of a building; and

(b) the demolition or removal of a building or works; and

(d) the subdivision or consolidation of land, including buildings or airspace; and

(e) the placing or relocation of a building or works on land; and

(f) the construction or putting up for display of signs or hoardings -

but does not include any development of a class or description, including a class or description mentioned in paragraphs (a) to (f) , prescribed by the regulations for the purposes of this definition;

1. Table 3.1 also adopts the definition of 'building' in s 3 of LUPAA, which in (a) includes structures and out-buildings:

(a) a structure and part of a building or structure; and

(b) fences, walls, out-buildings, service installations and other appurtenances of a building; and

(c) a boat or a pontoon which is permanently moored or fixed to land;

1. The Council contends that the shipping containers constitute development both as structures and as out-buildings.

1. 'Structure' is not defined in either the Scheme or LUPAA and so is to be given its ordinary meaning: cl 3.3.3 of the Scheme. In Jackson v Purton [2011] TASSC 28 Wood J considered the meaning of structure in a definition of building which was identical to that in LUPAA. Her Honour considered the term in the context of whether a caravan placed on a site and used for domestic purposes in conjunction with a shed being used as a dwelling was a residential use, and said at [150]:

150 It was submitted for the respondents that the ordinary meaning of the word "structure" is a whole constructed unit. This proposition is consistent with the dictionary definition. The New Shorter Oxford English Dictionary (Clarendon Press 1993) defines the word "structure" as "A thing which is built or constructed; a building, an edifice. More widely, any frame work or fabric of assembled material parts". A caravan is a structure. The Tribunal did not err in concluding that the use of the caravan for a residential purpose was a breach of LUPA Act.

That case was the subject of an unsuccessful appeal in Purton v Jackson [2012] TASFC 2, which did not raise her Honour's characterisation of the caravan. It was applied in M & J Purton v Waratah-Wynyard Council and D & V Turner [2022] TASCAT 92. I note that the Macquarie Dictionary Online Edition includes a very similar definition to that used by her Honour: "something built or constructed; a building, bridge, dam, framework, etc".

1. The Council referred the Tribunal to a decision of the Victorian Civil and Administrative Tribunal (VCAT) in Watson v Monash City Council [2011] VCAT 2176. That case involved an appeal from a decision of the Monash City Council to refuse a permit for the placement of a shipping container, to be used for storage, behind an existing shop. VCAT considered whether the container fell within the definition of a building within s 3 of the Planning and Environment Act 1987 (Vic), which is in identical terms to the definition in s 3 of LUPAA. In an annexed legal opinion VCAT determined that the container was a structure for the purposes of the definition, and so a building, given the weight size, mass and visual presence of the container, notwithstanding that it would not be fixed to the ground.
2. The definition of building in LUPAA is inclusive. The included elements all have a characteristic of permanence. While a caravan or a shipping container are capable of being moved and may be temporarily placed on land, the caravan in Jackson v Purton and the container in Watson v Monash City Council shared the attributes that, although not fixed, they were to endure on the land and their use was associated with and subservient to another dominant use of the land. The containers on the site in this case share those attributes. In addition, while there was no direct evidence of the construction of the containers, it is a matter of common knowledge and experience that they are things which are constructed and consist of assembled material parts.
3. I am satisfied that the containers are structures and fall within paragraph (a) of the definition of building. The placement of them on the site therefore falls within paragraph (e) of the definition of development.

1. While I have determined that the containers constitute development as a structures, in the event that I am in error on that point I will also consider whether they constitute development as outbuildings.
2. There are three dwellings on the site and the shipping containers are used for storage associated with the dwellings. The definition of 'dwelling' in table 3.1 of the Scheme includes outbuildings normally forming part of a dwelling:

means a building, or part of a building, used as a self-contained residence and which includes food preparation facilities, a bath or shower, laundry facilities, a toilet and sink, and any outbuilding and works normally forming part of a dwelling.

means a non-habitable detached building of Class 10a of the Building Code of Australia and includes a garage, carport or shed.

1. Certain outbuildings are exempt from requiring a permit, under cl 4.0 and table 4.3, but it is clear from photographs that are included in the statement of agreed facts showing the location of the containers on the site, and a photograph attached to Ms Strickland's evidence, that they exceed the maximum horizontal dimensions in the exemption.
2. The definition includes a short list of included types of building that would commonly serve as outbuildings that does not expressly refer to shipping containers. The containers are non-habitable and detached. They are being used for a purpose that a shed that might normally form part of a dwelling might serve. The uncertainty arises as to whether they are buildings of Class 10a of the Building Code of Australia.
3. The Building Code of Australia is contained within the National Construction Code 2022 published by the Australian Building Codes Board. The introduction to the National Construction Code states that it is published on behalf of the Australian Government and each State and Territory government.
4. Part A6 of the National Construction Code establishes building classifications. Clause A6G11 identifies the classification of Class 10 Buildings and Structures. Clause A6G11(1) provides that "a Class 10 building is a non-habitable building or structure". Class 10 includes several sub-classifications. Clause A6G11(2)(a) provides the following classification for Class 10a buildings, which mirrors the definition of outbuilding in the Scheme but for the definition of outbuilding including 'detached':

Class 10a is a non-habitable building including a private garage, carport, shed or the like.

1. That classification mirrors the definition of outbuilding in the Scheme but for the definition of outbuilding including 'detached'.
2. Part A6 sets out the governing requirements for classification of buildings within the Building Code of Australia classes. Clause A6G1(1) provides:

(1) The classification of a building or part of a building is determined by the purpose for which it is designed, constructed or adapted to be used.

The containers have been established on the site to provide storage associated with the residential dwellings on the site.

1. Part 2 of the Building Act 2016 requires that building work comply with the National Construction Code unless otherwise authorised under the Act. Section 20 of that Act provides that the Director of Building Control may make certain declarations, including under s 20(1)(a) in respect of "types of building work...that is low-risk work, notifiable work or permit work".
2. The Council points to a determination by the Director of Building Control pursuant to s 20(1)(a) titled Director's Determination - Categories of Building and Demolition Work Version 1.4 made on 12 March 2021. The determination sets out categories of work for the purposes of approval processes under the Building Act. Category 1 determines that certain work is low risk work that may be undertaken by an owner, competent person, or licensed builder. It sets out a table categorising building work according to the building classes established by the Building Code of Australia in the National Construction Code. Clause 1.3.0 of the determination is headed "Non-habitable Outdoor Structures (Class 10)". It contains 19 individual descriptions of work. The description of work in cl 1.3.3 is "shipping container".
3. The Council contends that that categorisation in the determination supports its contention that the containers are a non-habitable detached building of Class 10a as per the definition in the Scheme.
4. The appellant says that the containers are unmodified metal boxes, and that Building Regulations 2016 do not define a shipping container as a Class 10a building. The appellant contended that this contrasted with Queensland where it says that specific steps have been taken to define shipping containers as buildings, pointing to the Building Regulations 2006 (Qld). Regulation 4 and cl 13(2) of Sch 1 of those Regulations provide that certain work is accepted work for the purposes of the Planning Act 2016 (Qld), which is similar to the exemption for outbuildings in the Scheme and may apply to smaller containers. I was not able to find any provision specifically referencing shipping containers in the Queensland Regulations.
5. The appellant contends that the Council's case is deficient in that it did not adduce expert evidence from a building surveyor as to the classification of the containers under the National Construction Code. It relies on s 4(3)(b) of the Building Act, which provides:

(a) a reference in this Act to the class of a building is a reference to that class as set out in the National Construction Code; and

(b) if the class of a building is unclear or disputed, the relevant building surveyor for the building must classify it as belonging to the class of building it most closely resembles.

1. In Tanah Merah Vic Pty Ltd v Owners' Corporation No 1 of PS631436T [2021] VSCA 72 the Court of Appeal of the Supreme Court of Victoria considered the proper approach to the Building Code of Australia. At [209] the Court applied comments made by Lindsay J in the Supreme Court of New South Wales:

209 Further, as Lindsay J observed in The Owners - Strata Plan No 69312 v Rockdale City Council & Anor; Owners of SP 69312 v Allianz Aust Insurance [2012] NSWSC 1244 in respect of the position of the BCA under cognate New South Wales legislation:

First, the BCA is and was at all material times a publication of the Australian Building Codes Board rather than a form of subordinate legislation in its own right. Secondly, at all material times the BCA had express legislative recognition. Thirdly, regulations under the Environmental Planning and Assessment Act 1979 made within power have, at all material times, provided for 'the adoption and application' of the BCA. [At 30]

Whatever side of the line it might be thought to fall on for the purposes of the definitions of 'instrument' and 'statutory rule' in the Interpretation Act, the task for the Court in these proceedings is to construe it as a formal document designed to define standards, for the promotion of public safety, in the construction of buildings. [At 61]

1. Classification under the Building Code of Australia is a matter of applying the facts in evidence to the legal meaning of the provisions in the Code. It might be described as an ultimate issue in this case. I am not bound by the rules of evidence or the Evidence Act 2001, but I gain some guidance from the observation by Austin J, in considering the application of the New South Wales equivalent to s 80 of the Evidence Act to expert evidence as to an ultimate issue, in Dean-Willcocks v Commonwealth Bank of Australia [2003] NSWSC 466 at [15]:

15 The effect of s 80 has been more fully explored in earlier authorities, which I had occasion to review in Dyson v Pharmacy Board of New South Wales (24 October 2000, unreported). For reasons I explained in that case (at paragraphs [25] to [35]), the general position after the enactment of s 80 is that evidence going to an ultimate issue, which is tendered as expert opinion evidence, is admissible (subject to discretionary considerations) unless it is not relevant, or the witness does not have specialised expertise to support his or her opinion. I would add, however, that if the expert chooses to address an ultimate issue which is a mixed issue of fact and law, and does not have expertise in the law and in the assessment of evidence, there is a probability that the opinion will be regarded as outside the scope of the expert's specialised knowledge. The strength of that probability will depend on the nature of the question and the nature of the expertise.

1. I do not accept the appellant's submission. A building surveyor might give evidence as to classification, but I do not take s 4(3) to mean either that a building surveyor's opinion is required to determine whether a building falls within a classification, or that a building surveyor's opinion is conclusive as to classification. I also observe that s 4(3)(b) is expressly made for the purposes of the Building Act, not for LUPAA, and it relates only to the statutory functions exercised by a building surveyor under the Act, which are not raised on the appeal. Following the approach in Dean-Willcocks v Commonwealth Bank of Australia evidence of classification by an expert building surveyor may be relevant, but the absence of that evidence does not mean that I cannot determine the classification on other evidence.
2. The Council properly brought to my attention the decision in Winter v Kingborough Council & South Arm Pipeline Pty Ltd (No.2) [2024] TASCAT 201, which at first blush appears contrary to its position. In that case the Tribunal considered whether three shipping containers forming part of a proposed waste water treatment plant were outbuildings for the purposes of standards in the Kingborough Interim Planning Scheme 2015, which included a definition of outbuilding which is identical to that in the Scheme. The Tribunal referred to the statement in cl A6G(1) that classification is to be determined by purpose. The evidence in that case was that the containers would serve an operative function containing successively filtration and chemical dosing equipment, an ultra-filtration system and a pre-treatment filtration system which were joined into a single process via pipework. The Tribunal accepted the proposition that they formed a process-type building and concluded at [181] that the containers were not Class 10a buildings, but were Class 8 buildings. Class 8 buildings are defined in cl A6G9 of the Building Code of Australia as:

(1) A Class 8 building is a process-type building.

(2) Class 8 buildings include the following:

1. A laboratory.
2. A building in which the production, assembling, altering, repairing, packing, finishing, or cleaning of goods or produce for sale takes place.

1. The Council contends that Winter v Kingborough Council & South Arm Pipeline Pty Ltd (No.2) is distinguishable on the basis that it involved consideration of whether a proposal was to be assessed against a standard rather than "whether shipping containers fall within the remit of LUPAA and can be regulated by the" Council. It is not necessary to consider that contention. Winter v Kingborough Council & South Arm Pipeline Pty Ltd (No.2) is clearly distinguishable on its facts. The best fit for the built purpose of the containers in that case was Class 8, not Class 10a. This illustrates the fact that a container may be a building, but that not all containers which are buildings will necessarily be in the same class, in the same way that not all brick veneer buildings with Colourbond roofs will be in the same class.
2. I am satisfied that the best fit for the built purpose of the containers under the Building Code of Australia in this case is Class 10a and that they fall within part (a) of the definition of building. The placement of them on the site therefore falls within part (e) of the definition of development, and a permit is required for the reasons outlined above in respect to the containers as structures.

1. I am satisfied that the placement of the containers on the site in the circumstances of this case constitutes development both as structures and as outbuildings.
2. For the avoidance of doubt, the determination that the containers are structures and outbuildings proceeds from the facts of this case. It does not necessarily follow that the placement of a shipping container on land will always constitute development.
3. Under cl 6.2.2 of the Scheme, if the use of the containers is "directly associated with and a subservient part of" the residential use on the site it is also to be categorised as residential use. The agreed facts include that the containers are used for storage associated with the dwellings and Ms Strickland's evidence was that their use was associated with the multiple dwelling use. They are clearly subservient to that use in that it is connected with and serves and contributes to the residential use: Cai v Launceston City Council [2024] TASSC 10 [26].
4. Multiple dwelling use is a residential use, as defined in table 6.2 of the Scheme. In the General Residential Zone residential use is a no permit required use where it is for a single dwelling, but the use of multiple dwellings is a permitted use and requires a permit: cl 8.2, cl 6.4 and cl 6.7 of the Scheme.
5. Accordingly, pursuant to cl 6.4.1(a) of the Scheme, the siting of the shipping containers on the site in this case requires a permit. No permit has issued.
6. I have therefore formed a belief to the standard described in Plumb that the appellant has contravened s 63(2)(a) by undertaking development contrary to the Scheme, and as a consequence has committed or is committing an offence against s 63(3) of LUPAA. Indeed were it necessary to establish a belief to the standard explained in Briginshaw v Briginshaw [1938] HCA 34 I would be so satisfied.

1. As noted above, having determined that a reasonable belief sufficient to trigger the discretion to issue an enforcement notice exists I have the discretion to affirm, vary or set aside and substitute my own determination or remit the matter to the authorised officer.
2. In Gray & Pratt v Bartlett [2023] TASCAT 185 the Tribunal considered the exercise of a similar discretion in respect to making orders on a civil enforcement proceeding under s 64 of LUPAA. At [91] the Tribunal said:
   1. In the exercise of the discretion under s 64(3) guidance can be found in the decision of Kirby J in Warringah Shire Council v Sedevcic [1987] 10 NSWLR 335 at 365 to 367: Break O'Day Council v The Crown and BJ Vautin [2008] TASRMPAT 35 at [11] and CA Williams v Holy Tantra Esoteric Buddhism Inc. [2019] TASRMPAT 5 at [16]. Those guidelines include:

(a) The discretionary power is as wide as a court's power in its equitable jurisdiction.

(b) The exercise of discretion is not fettered but may be guided by previous decisions.

(c) In exercising the discretion regard must be had to the remedy being sought being the enforcement of a public duty imposed by legislation regulating use and development, not the enforcement of a private right.

(d) The legislative intent is that those concerned in the development and use of the environment will comply with the terms of the legislation.

(e) Where proceedings are brought by a planning authority equitable relief is less likely to be denied than it would in litigation between private citizens, because a planning authority is a proper guardian of public rights with an interest deemed to be protective and beneficial, not private or pecuniary. A decision maker, should, however, be alert to insensitive and unthinking administration.

(f) The public interest in equal compliance with the law must be balanced with the degree of irremediability occasioned by a breach and the expense or inconvenience which would follow on enforcement. The discretion may more readily be exercised in respect to relief sought against a static development such as the erection of a building rather than a continuing breach by conduct that could be easily modified to bring it into compliance with the law, but that is not a reason to refuse relief in the absence of a static development.

(g) The wide discretion permits softening, according to the justice of the particular circumstances, the application of rules which though are right in the general sense may produce an unjust result in a particular case. An example by postponing the effect of injunctive relief.

Those factors will be relevant to the exercise of the discretion in this case.

1. Section 65D(1) and (2) of LUPAA provide that an enforcement notice may require the person on whom it is served to take certain actions, including in (1)(a) to cease committing a breach of the Scheme and in (2)(c) to remove buildings and structures from land:

(1) An enforcement notice that is served on a person under section 65C may require the person to do any one or more of the following:

(a) not to commit, or to cease to commit, the offence to which the notice relates;

(b) to take the action, specified in the notice, to remedy the consequences of the commission of the offence;

(c) to take all reasonable steps to ensure that a permit, or a planning compliance certificate, in relation to the land to which the notice relates is granted under this Act.

(2) Without limiting the generality of the requirements that, under subsection (1) , may be imposed on a person by an enforcement notice, an enforcement notice may contain one or more of the following requirements:

(a) that the person stop carrying out development of the kind specified in the notice;

(b) that the person stop carrying out a use of land that is specified in the notice;

(c) that the person demolish or remove a building or other structure, or any works carried out, on land owned or occupied by the person;

(d) that the person restore, so far as reasonably practicable, land, or a building or structure on land, to the condition it was in before development was carried out by the person;

(e) that the person do, or not do, an act, so as to ensure that development carried out by the person on land is in accordance with a State Policy, permit, major project permit or planning scheme, that applies to the land.

1. The enforcement notice requires, insofar as it relates to the containers, that the appellant "remove the outbuildings (shipping containers) from the land". The enforcement notice was issued on 17 December 2024 and required compliance by 31 January 2025, approximately six weeks later, or a date agreed to by the Council's General Manager.
2. The appellant did not lead any evidence and there was nothing in the Council's evidence or the parties' submissions that suggests that the removal of the containers from the site would be onerous, or that there are any impediments to removal, or that requiring removal would be unjust. There was no suggestion that the appellant was misled by the Council, or acted mistakenly, or in good faith on a void authorisation, as for example in R v Resource Management and Planning Appeal Tribunal; ex parte Calvary Hospital Hobart Inc [2000] TASSC 19.
3. The enforcement notice was issued by the authorised officer of a public authority to enforce a public right. The public has an interest in the orderly regulation of appropriate development of land as reflected in the Scheme, and compliance with the Scheme is in the public interest: Wilhelm v Logan City Council & Ors [2020] QCA 273 [77] and Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257 [42]. That is reflected in s 48 of LUPAA which provides:

Where a planning scheme is in force, the planning authority must, within the ambit of its power, observe, and enforce the observance of, that planning scheme in respect of all use or development undertaken within the area to which the planning scheme relates, whether by the authority or by any other person.

In addition, s 63A(1) provides that "a planning authority that does not take all reasonable steps to ensure that a planning scheme that has effect in respect of an area within its municipal district is complied with is guilty of an offence".

1. I am satisfied that the Scheme should be enforced in the circumstances, that the decision to issue the enforcement notice should be affirmed, and that the requirement to remove the shipping containers is reasonable and appropriate.
2. Failure to comply with an enforcement notice may constitute an offence under s 65E of LUPAA, giving rise to penalties. The right to appeal arises under s 61(7) of LUPAA. Section 77(1) of the TASCAT Act provides that an appeal does not affect the operation of a reviewable decision unless the relevant Act, in this case LUPAA, states otherwise. Unlike appeals in respect to the grant of planning permits under s 53(3), LUPAA provides no automatic stay on the operation of an enforcement notice on the filing of an appeal.
3. The appellant did not apply for a stay of the enforcement notice, but I am satisfied that the appeal was not colourable and was properly advanced and argued by the appellant, if ultimately unsuccessfully. No evidence was advanced of any prejudice or irremediable consequence of the continued placement of the containers during the course of the appeal, and there was nothing in the conduct of the appellant that delayed the resolution of the appeal. I therefore consider that it would be just and reasonable in all the circumstances to vary the enforcement order to provide additional time for the removal of the containers. The original period provided was approximately six weeks, but that period spanned the Christmas-new year holiday period. I consider that a further 28 day period would be reasonable. The discretion in the General Manager to agree to another date will be retained. The date in the enforcement notice also sets the time for compliance with the other requirements of the notice, but I understand that they have been satisfied and that therefore changing the date will not affect them.

1. Accordingly, I order that:
   1. The enforcement notice NC-24-0009 dated 17 December 2024 issued by Des Jennings to Live Fish Tasmania Pty Ltd in respect to the property at 31 Cambrook Lane West, Evandale in Tasmania is varied by substituting the date 30 June 2025 for the date 31 January 2025 under the Heading "Requirements of Enforcement Notice".
   2. Any application for an order for costs in the appeal is to be made in writing with supporting submissions within 21 days. If no application is so filed each party is to bear their own costs.