R & B Rowley t/as Finley Lakeside Caravan & Cabin Park and Rowley Earthmoving Pty Ltd v Boyer

NCAT Appeal Panel|2022-06-14

Introduction

The Appellants operate a caravan park, and the Respondent occupies a mobile home in that park.
The Respondent brought an application in the Consumer & Commercial Division of the Tribunal for orders under the Residential (Land Lease) Communities Act 2013 (NSW) (the RLLC Act). The orders sought were an order under s 9(b) for a declaration that the Respondent's agreement with the operator is a site agreement to which the RLLC Act applies and for a further order under s 26(4) that the Appellants prepare and enter into a written site agreement.
The Respondent's application was successful and on 23 March 2022 the Tribunal made orders to the following effect: 1. Order 1: that the Respondent's agreement with the first two Appellants is a "site agreement" to which the RLLC Act applies. 2. Order 2: that the first two Appellants prepare and enter into a written site agreement commencing on 1 November 2019 and ending on 31 October 2022 for a site fee of $140 and subsequently increased to $150 in August 2021 plus electricity as invoiced, by 7 April 2022. 3. Order 3: if order 2 is not complied with before 7 May, 2022 the Respondent may request the relisting of the application to determine what enforcement orders may be made.
The record of the decision includes the statement that the member gave oral reasons for the above orders. The declaration and orders relate only to the first two Appellants and not the third (Rowley Earthmoving Pty Ltd).
A Notice of Appeal was lodged on 19 April 2022 and on 20 April 2022, the Appeal Panel made an order staying the operation of the orders on the condition that the Appellants were restrained from removing the Respondent or his caravan from the park.
The orders in respect of which this appeal is brought are those described above.

Reply to Appeal

The Respondent has filed a Reply to Appeal opposing the orders sought by the Appellants. The Respondent also contends that the appeal has been filed out of time.
The Civil & Administrative Tribunal Rules 2014 (the Rules) provide that an appeal from a decision made under the RLLC Act must be filed within 14 days of the Appellant becoming aware of the appeal. In this case that period started on 23 March 2022 and therefore the appeal should have been filed on 6 April 2022. The Respondent contends that it was filed approximately 13 days later. The Appellants therefore need to apply for an order that time for lodgment of the appeal be extended.

The First Instance Reasons

We have been provided with a transcript of the oral reasons which may be summarised as follows: 1. The Respondent moved into the site of the Appellants' caravan park in November 2019 bringing with him a movable dwelling (namely a bus). The Tribunal accepted the Respondent's evidence that he had occupied the bus on the site allocated to him at the Appellants' Park as his principal place of residence. He was currently paying a site fee of $150 per week plus electricity. There was no written agreement between the Respondent and the then operator of the site. 2. Section 5 of the RLLC Act applies to all communities, whether they be described as residential parks, caravan parks, manufactured home estates or communities. They apply whether or not any relevant approval for them has been obtained under the LG Act. 3. The RLLC Act operates regardless of whether or not the land upon which the park operated is crown lands and the operator occupies it pursuant to a lease from the Crown. 4. The Berrigan Shire Council issued a development approval on 21 December 2021 for renewal of the site to operate as a caravan park and camping ground. The RLLC Act takes priority over that approval because it specifically provides that the Act applies whether or not relevant approvals have been obtained. 5. The Respondent entered into an agreement with the previous operator of the park and the previous operator failed in its obligation to ensure that a site agreement was entered into. 6. Section 9 gives the Tribunal the power to make a declaration that an agreement to occupy is a site agreement and under s 26(4) the Tribunal has power to order an operator to enter into a written site agreement. 7. The Tribunal stated it had power to backdate the date of the written agreement and, in this case, the evidence supports that that date was the 1 November 2019. In the absence of evidence as to the specific period of the agreement, the Tribunal fixed the period by reference to s 31(6) as the minimum period namely 3 years (ie. until 31 October 2022).

Statutory Framework

In the following paragraphs we set out portions of the RLLC Act relevant to the determination of this appeal.
Section 4 contains definitions.
The definition of "community or residential community" is as follows: community or residential community" means an area of land that comprises or includes sites on which homes are, or can be, placed, installed or erected for use as residences by individuals, being land that is occupied or made available for occupation by those individuals under an agreement or arrangement in the nature of a tenancy, and includes any common areas made available for use by those individuals under that agreement or arrangement. Note - A community may be - (a) a caravan park (that is, land, including a camping ground, on which caravans, or caravans and other moveable dwellings, have been, are or are to be placed, installed or erected), or (b) a manufactured home estate as defined in the Local Government Act 1993 (that is, land on which manufactured homes have been, are or are to be placed), whether or not the caravan park or manufactured home estate is the subject of an approval under the Local Government Act 1993.
Section 4 contains a definition of site agreement as follows: "site agreement" means an agreement under which the operator of a community grants to another person for value a right of occupation of a residential site in the community.
Section 5 provides: 5 Application of Act to communities This Act applies to all communities-- (a) whether existing immediately before or coming into existence after the commencement of this section, and (b) whether described as residential parks, caravan parks, manufactured home estates, communities or otherwise, and (c) whether or not any relevant approval for them has been obtained under the Local Government Act 1993, and (d) whether or not they are included in the Register, unless a provision of or under this Act provides otherwise.
Section 6 provides: 6 Application of Act to site agreements (1) This Act applies to all site agreements, whether existing immediately before or coming into existence after the commencement of this section, unless a provision of or under this Act provides otherwise. (2) Where this Act applies to a site agreement, it so applies despite the terms of the agreement or any other contract, agreement or arrangement, whether made before or after the commencement of this section. (3) This Act applies to a site agreement until it is terminated in accordance with this Act.
Section 7 provides: 7 Arrangements to which this Act does not apply (1) This Act does not apply to the following arrangements made in good faith-- (a) an occupation agreement to which the Holiday Parks (Long-term Casual Occupation) Act 2002 applies, (b) an arrangement for occupation of a residential site for holiday purposes, (c) an arrangement for occupation of a residential site or home by an itinerant worker, unless the parties to the arrangement agree to enter into a site agreement or tenancy agreement, (d) an arrangement for accommodation in a community for a full-time employee of the operator or owner, (e) any other arrangements prescribed by the regulations. (2) The operator of a community who enters into an arrangement of the kind referred to in subsection (1) and who knows at the time or ought reasonably to know at the time that it is not made in good faith commits an offence. Maximum penalty--100 penalty units. (3) In this section - "arrangement" includes a contract or agreement.

"itinerant worker" means a person who lives elsewhere but stays in a community due to seasonal work in the area (for example, fruit picking).

Section 9 provides: 9 Declaration by Tribunal The Tribunal may, on application by any person, make an order declaring that-- (a) a specified place is or is not a community to which this Act or a specified provision of this Act or the regulations applies, or (b) a specified agreement is or is not a site agreement to which this Act or a specified provision of this Act or the regulations applies, or (c) a specified contract, agreement or arrangement of a kind referred to in section 7 was or was not made in good faith.
Section 13 provides: 13 Relationship of Act with other laws (1) This Act does not apply to tenancy agreements, except to the extent this Act provides otherwise. (2) The Retirement Villages Act 1999 does not apply to communities occupied by retired persons or predominantly by retired persons (that is, persons who have reached the age of 55 years or have retired from full-time employment). (3) Nothing in this Act limits any requirement imposed by or under the Local Government Act 1993 or the Environmental Planning and Assessment Act 1979.
Section 26 provides: 26 Site agreements generally (1) The operator of a community must ensure that the site agreement for a site in the community is in writing at the commencement of the agreement. Maximum penalty--20 penalty units. (2) The agreement must-- (a) identify the residential site by its number and its dimensions, and (b) state-- (i) the operator's name and address for service of documents, and (ii) if the operator is a company--the address of the registered office of the company, and (iii) if the operator is not the owner of the community--the name of the owner, and (c) be signed by the parties, and (d) comply with any other requirements prescribed by the regulations (including as to the content or form of the agreement). (3) If a site agreement does not comply with a requirement of subsection (2), the operator of the community is guilty of an offence. Maximum penalty--20 penalty units. (4) The Tribunal-- (a) may, on application by a homeowner who was not given a written site agreement at the time occupation of the residential site commenced, order the operator to prepare and enter into-- (i) a written site agreement in the relevant standard form, if prescribed, or (ii) a written site agreement that includes, or contains only, terms specified or of a kind specified by the Tribunal, if there is no relevant prescribed standard form, and (b) may, by the same order, specify a commencement date for the agreement that occurred before the order was made.
Section 42 provides: 42 Alterations and additions to, and replacement of, homes (1) A homeowner must not, except with the written consent of the operator of the community or unless the site agreement otherwise provides-- (a) make any alteration to the exterior of the home (other than painting or minor repairs) or add a fixture to the residential site, or (b) replace the home with another home. (2) The operator must not unreasonably withhold or refuse the consent. (3) The consent may be given with reasonable conditions. (4) The Tribunal may, on application by the homeowner, order that any alteration, addition, or replacement requiring consent can be carried out without consent if the Tribunal finds that the withholding or refusal of consent is unreasonable or that unreasonable conditions were imposed. (5) The Tribunal must not make an order under this section if the relevant alteration, addition, or replacement is or would be designed, constructed, or installed in breach of the Local Government Act 1993, the Environmental Planning and Assessment Act 1979 or any approval, consent or certificate under either or both of those Acts. (6) A home located on a residential site is not, for any purpose, to be regarded as a fixture, regardless of the manner in which it is attached to the land. This subsection does not apply to a home that is owned by the owner of the community. (7) Without limiting subsection (6), a fixture added to a residential site by a homeowner remains the property of the homeowner and does not become part of the land, and the homeowner may remove it at any time or sell it as part of the home.
Section 52 provides: 52 Change of operator (1) If another person becomes the operator of a community, the benefits and obligations under existing site agreements pass from the old operator to the new operator. (2) The new operator must, within 14 days after becoming the operator, give all existing homeowners in the community a notice stating the operator's name and business address. maximum penalty--10 penalty units.
Section 125 provides: 125 Termination by operator for change in use of residential site (1) The operator of a community may give a termination notice for a particular residential site on the ground that there is to be a change in use of the site. (2) A termination notice may not be given under this section unless: (a) the Tribunal has authorised the operator to give a termination notice because of the proposed change of use of the residential site, and (b) if the change of use requires development consent under the Environmental Planning and Assessment Act 1979, development consent for the proposed use has been obtained under that Act. (3) The Tribunal may, on application by the operator of a community, make an order authorising the operator to give a termination notice in respect of a site agreement because of a proposed change of use of the residential site to which the agreement relates. (4) The Tribunal is not to authorise the giving of a termination notice under this section if: (a) the change of use is not proposed in good faith, or (b) the change of use would permit use of the residential site in connection with an agreement or arrangement referred to in section 7. (5) A termination notice given under this section must not specify a date for vacating the residential site that is earlier than: (a) 12 months after the day on which the notice is given, or (b) in the case of an agreement for a fixed term - the day following the date on which the fixed term ends, whichever is the later. (6) The homeowner may, within 90 days after receiving a notice specifying a date for vacating the residential site, apply to the Tribunal for an order postponing the date. (7) Unless the homeowner advises the operator in writing that the operator's assistance under this subsection is not required, the operator is, after giving the termination notice, required to use reasonable endeavours to obtain (or make available) for the homeowner alternative accommodation that: (a) is of approximately the same standard as, and requires no greater financial outlay on the part of the homeowner than, the homeowner's current residential site, and (b) is acceptable to the homeowner or reasonably ought to be acceptable to the homeowner. (8) Without otherwise limiting the Tribunal's powers to make a termination order in connection with the termination notice, the Tribunal is required to take into account the endeavours used by the operator to obtain (or make available) alternative accommodation for the homeowner.
Section 127 provides: 127 Termination by operator for lack of authority for use of residential site (1) The operator of a community may give a termination notice on the ground that the residential site is not lawfully useable for the purposes of a residential site. Note: For example, a notice may be given if the homeowner is occupying a short-term site on a permanent basis in contravention of a requirement made under the Local Government Act 1993. (2) The termination notice must not specify a date for vacating the residential site that is earlier than 90 days after the day on which the notice is given. (3) The homeowner whose site agreement is terminated under this section is entitled to be paid compensation in accordance with Division 6 but only if, unknown to the homeowner, the residential site was not lawfully useable for the purposes of a residential site when the agreement was entered into.

Appellants' Submissions

The Appellants' submissions are summarised in the following paragraphs.
Interpreting ss 5 and 9 as if they exist alone in a vacuum of legislative or common law frameworks and rights will lead to an absurd construction of law. The RLLC Act is constrained under ss 7, 13, 42, 124, 125 and 127. Such sections refer to obligations under the LGA Act and the Environmental Planning & Assessment Act 1979 (the EPA Act).
The rationale of the Tribunal was that because the Holiday Parks (Long-Term Casual Occupation) Act 2002 did not apply to the type of agreement which the parties had entered into it must by default be a site agreement under the RLLC Act. Just because the Holiday Parks (Long-Term Casual Occupation) Act does not apply, an inference cannot be made that the RLLC Act would. The Respondent currently occupies a short-term site which permits a person to stay for holiday purposes only. Such an agreement is envisaged by s 7(1)(b).
Section 13 provides that the RLLC Act does not limit any requirement imposed by or under the LG Act or the Environmental Planning & Assessment Act 1979 (the EPA Act). Section 68 of LG Act makes it an offence to operate an activity without the permitted use.
The lease of which the Appellants are tenants does not grant them a right to operate a caravan park providing a permanent residence.
The Tribunal's determination has the effect that the RLCC Act is unlimited by virtue of ss 5 and 9.
Under s 31 of the RLLC Act, site agreements have unlimited duration. The Appellants submit that this extraordinary effect can only exist where permitted use has been provided.
The Appellants contend that the Notice of Appeal raises the issue of whether the Tribunal's orders were ultra vires in that the effect of the decision was to cause a site agreement to be entered into in breach of various Acts and common law rights. Secondly, and in the alternative, the appeal raises the question of whether, if the RLCC Act applies then s 127 of the Act also applies. The Appellants annexed a proposed s 127 notice to their submissions.
In submissions in reply the Appellants submitted that we should have regard to s 5.2 of the CLM Act and in particular to s5.2(4)(d) and (e). That section provides that certain matters may be included in a holding involving Crown land and that certain matters are mandatory. They include the purpose for which the land is authorised to be used under the CLM Act and the maximum term that is allowed.

Respondent's Submissions

The Respondent's submissions are summarised in the following paragraphs.
The Tribunal did not err when it applied sections 5,9,26,31 and 52 of the RLLC Act. The proper construction of s13(3) is that it means that the RLLC Act does not operate in a way that limits discrete statutory obligations under the LG Act or the EPA Act. A park operator has obligations under the RLLC Act and it may also have distinct requirements to meet under the LG Act and the EPA Act. The Appellants' interpretation would fail to give any effect to s5(c) and to the definition of "community" in s 3 which expressly allows for the RLLC Act to apply whether or not the park is the subject of an approval under the LG Act.
Sections 42,124 and 125 were not argued at first instance and nor are they relevant. Section 42 is limited alterations or additions. Sections 124,125 and 127 provide a mechanism for an operator to seek termination of a site agreement. Those sections were not the subject of consideration of the Tribunal at first instance.
At first instance the Tribunal made a finding of fact based upon the evidence before it that the Respondent had entered into an oral binding site agreement with the previous park operator pursuant to the RLCC Act. Once that finding of fact had been made, the Tribunal had lawful authority to apply ss 9 and 26(4) to make the orders that it made.
The Appellants make a submission relying on s 7(1)(b) of the RLCC Act which was not argued at first instance and should not be allowed on appeal.
We interpose here to record that reliance upon that section would have required evidence that the parties agreed to the arrangement for occupation of the site for "holiday purposes". We were not taken to any evidence that would have suggested that the arrangement was for such purposes. Indeed, at the hearing, we were taken to evidence that was before the Tribunal at first instance to the effect that the Respondent's permanent place of residence was the Appellants' caravan park. Importantly, we were taken to a Centrelink application which the Respondent said included a declaration from the previous operator that was said to verify that the Respondent lived at the caravan park. His Centrelink address was the park. The Tribunal also had before it the Respondent's statutory declaration affirming that he has resided at the park since November 2019 and that he had entered into an agreement with the previous park operator to permanently reside at the park.
The Respondent's submissions referred to the Appellants' evidence confirming that Berrigan Shire Council had granted approval under s 68 of the LG Act to operate a caravan park and camping ground from 21 December 2021 to 21 December 2026 for four long-term sites, 37 short-term sites and five campsites.
The Respondent disagrees with the Appellant's submission that the Tribunal's orders usurp the powers of the local council under the LG Act. The Respondent submits that the Tribunal and the local council are conferred different powers for different purposes under different Acts. In any event, the Appellants' evidence was to the effect that the Council had granted approval to operate a caravan park from 21 December 2021. Accordingly, there was no apparent need for the Appellants to seek council approval to change the permitted use by reason of the site agreement with the Respondent.
The Respondent's submissions refer to the Appellants' submissions to the effect that their lease with the Crown and s 9.2 of the Crown Land Management Act 2016 have the effect that they are unable to enter into a written site agreement unless they obtain the consent of the Minister. The Respondent submits that the Tribunal did not err when it reasoned that regardless of whether the land on which the park is operated is Crown lands and the operator occupies it pursuant to a lease from the Crown, there is no prohibition on the RLLC Act applying. The Respondent submits that ss 7 and 8 of the RLCC Act make it clear as to what types of arrangements and what types of places the RLCC Act has no application. Nowhere in the RLLC Act is there a prohibition on that Act applying to Crown lands where an occupier manages a caravan park pursuant to a lease from the Crown.
In addition, the Respondent submits that s 9.2 of the Crown Land Management Act 2016 has no application in the present circumstances. It prescribes a penalty for certain unauthorised use of Crown land. However, when the Minister has granted a lease over such land, the lease terms prevail over s 9.2: see s 5.2. Section 9.2 of the Crown Land Management Act does not create a statutory prohibition against residing on Crown lands.
The Respondent's submissions refer to s 6 of the RLCC Act and in particular to s 6(2) which provides that where the RLLC Act applies to a site agreement, it applies despite the terms of an agreement or any other contract, agreement or arrangement, whether made before or after the commencement of the sections. The Respondent submits that the legislature evinced a clear intention that site agreements are not invalidated by the terms of other contracts, agreements or arrangements that, for example, an operator may also be a party to.
With respect to the Appellants' submission that the arrangement entered into between the previous operator and the Respondent was tainted by illegality (by reason of such an agreement being prohibited under the lease with the Crown), the Respondent submits that there is no express statutory prohibition against the making of a site agreement in the CLM Act. The Respondent relies upon the Appeal Panel decision in Kings v Chand [2019] NSWCATAP 180 and, in turn, the judgment of the High Court in Gnych v Polish Club Ltd [2015] HCA 23. In this case the Respondent was unaware of any legal impediment that the previous operator may have faced when entering into a site agreement with him. The site agreement is not void or unenforceable as a result of the Appellants' (or the previous operator's) failure to obtain consent from the Crown for the Respondent to reside on the premises.
The Respondent submits that the Appeal Panel should vary the existing orders to provide that if the operator does not prepare and enter into a written site agreement within 14 days of the publication of the Appeal Panel's orders, then the Respondent has liberty to relist the application to determine what enforcement orders may be made against the operator against the Appellants, such liberty to be exercised within three months from the date of these orders. Otherwise, the appeal should be dismissed.

Consideration

In our view the appeal lacks merit and must be dismissed. Our reasons are set out in the following paragraphs.
Under s 9(b) of the RLLC Act the Tribunal has jurisdiction to make a declaration that a specified agreement is or is not a site agreement to which the RLLC Act applies. In this case, the Tribunal found that there has been in existence, since November 2019, an oral agreement between the Respondent and the previous park operator initially and then with the Appellants by virtue of s 52 of the RLLC Act. The terms of that agreement were that the Respondent could reside at the park in his bus on a particular site. There was no evidence that the Respondent's residency was to be limited (such as a requirement to reside for no more than 180 days each year at the community or a requirement to use the premises for holiday purposes only) but there was evidence that the Respondent's permanent place of residency was the caravan park.
There was no dispute that the agreement between the Respondent and the previous operator was with respect to land within a community or residential community as defined by s 4 of the RLLC Act. The fact that this park is or is not the subject of approval under the LG Act is not relevant: see the Note to the definition in s4.
Similarly, the evidence supported the finding by the Tribunal at first instance that there was a site agreement in that, in conformity with the definition in s 4, there was an agreement under which the operator of a community granted to another person for value a right of occupation of a residential site in the community.
As a consequence of those findings of fact the Tribunal was then required to consider whether the RLLC Act applied to the site agreement between the parties.
The terms of s 5 make it clear that the site agreement found by the Tribunal is regulated by the RLLC Act. By s5(c) the RLLC Act applies whether or not a relevant approval has been obtained under the LG Act "unless a provision of or under" the RLLC Act provides otherwise.
It is also clear from s 6(2) that the site agreement found by the Tribunal is regulated by the RLLC Act despite the terms of the lease which the previous operator had with the Crown and the subsequent lease which the Appellants have with the Crown. Section 10 provides that the RLLC Act binds the Crown. It is our opinion that the fact that the Appellants may be in breach of their obligations under their lease does not mean that the site agreement is void or not regulated by the RLLC Act. We will come back to this issue later.
Section 7 operates to exclude some arrangements from the RLLC Act. There was no evidence to the effect that the agreement between the previous operator and the Respondent concerned a site for holiday purposes. That provision (see s 7(b)) therefore did not exclude the site agreement in question from the operation of the RLLC Act. No other provision of s 7 was relied upon by the Appellants.
Section 13(3) provides that nothing in the RLLC Act limits any requirement imposed by or under the LG Act or the EPA Act. The provision to which we were taken was s 68 of the LG Act, which has the effect of requiring a community operator to obtain council approval. It does not have the effect that a site agreement entered into without council approval is void or voidable. To the extent that an operator comes under pressure from a council to bring to an end a site agreement that is not approved by council the operator has a possible solution in s127 (which we address later).
Section 42 of the RLLC Act provides that limits are imposed upon a homeowner in relation to alterations or additions. Section 42(5) makes it clear that the Tribunal must not make an order concerning alterations, additions or replacements if to do so would cause a breach of the LG Act or the EPA Act or any approval, consent or certificate under those Acts.
The Appellants made reference to ss 124 and 125 of the RLLC Act. In our view they are not relevant to determining any issue in this appeal. Section 124 regulates the issue of a termination notice by an operator in circumstances where the community is to be closed. Section 125 regulates the issue of a termination notice where the operator intends to change the use of the community site.
Section 127 may be relevant to the circumstances between the parties. It provides that the operator may give a termination notice on the ground that the residential site is not lawfully useable for the purposes of a residential site. The note under s 127(1) states that a notice may be given if the homeowner is occupying a short-term site on a permanent basis in contravention of a requirement made under the LG Act. In brief terms, a 90-day termination notice may be given but the homeowner is also entitled to be paid compensation in the circumstances outlined in s 127(3).
The central argument of the Appellants is that because the making of the site agreement was contrary to the provisions of the LG Act (because the Appellants did not have local council approval to permit the Respondent to reside at the park on a full-time basis) and was contrary to the CLM Act (because the Respondent's residency required the Crown's permission), the site agreement was void.
In Kings v Chand [2019[ NSWCATAP180 the Appeal Panel considered whether a residential tenancy agreement was void because the landlord had failed to obtain an occupation certificate in respect of the premises as required by the EPA Act. The Appeal Panel relied upon the principles referred to by the High Court in the Gynch case (referred to earlier). The High Court said that an illegality may not necessarily render an agreement void. An agreement may be void if a statute expressly or impliedly so provides or if the agreement should be judged to be furthering an illegal purpose. Here there is no statutory (express or implied) prohibition on the site agreement being entered into. Although the EPA Act and the CLM Act impose obligations there is nothing to the effect that in the event of a breach of statutory obligations a site agreement is void. On the contrary the RLLC Act provides that a site agreement remains regulated under the RLLC Act notwithstanding lack of approval under the LG Act: see s5(c). The same may said for a site agreement entered into contrary to the provisions of another agreement: see s6(2).
The Appellants relied upon provisions of the CLM Act s9.2 which prohibits a person from doing certain things. However, s5.2 of the CLM Act provides that the terms and conditions of a holding (which includes a lease) are valid and enforceable even if a provision of the CLM Act deals with the matter differently. It is clear that the CLM Act recognises that crown land may be leased, and it is our view that s6(2) of the RLLC Act provides that a site agreement is subject to the RLLC Act despite the terms of any other contract or arrangement. That would include the lease in this case.
In the light of our interpretation of the provisions of the RLLC Act, it follows that the Tribunal did not make an order that was ultra vires. All grounds of appeal are rejected. It is our view that the Decision does not display any error and that therefore the appeal must be dismissed.
There appears to be a dispute between the parties as to whether the appeal was filed out of time. The Notice of Appeal bears the date stamp 19 April 2022 but the Appellants' submissions state that the appeal was filed on 7 April 2022. If the Appellants are correct the appeal was filed within time. It is not necessary to consider and determine whether the appeal was filed out of time and if so whether time should be extended in light of our decision on the merits.
The orders at first instance gave the operator until 7 May 2022 to enter into a site agreement. It is appropriate to vary order 3 so as to permit a further period for the parties to enter into a written site agreement. The stay must be dissolved.
Accordingly, the Appeal Panel makes the following orders: 1. Except to the extent that order 3 in RC 21/42659 is varied in accordance with order 2 hereof, the appeal is dismissed. 2. Order 3 in RC 21/42659 made on 23 March 2022 is varied as follows: "If the orders in respect of the operator preparing and entering into a written site agreement are not complied with within 14 days of the date of these orders, the Respondent has liberty to relist the application to determine what enforcement orders may be made against the operator, such liberty to be exercised within three months from the date of these orders." 1. The order staying the operation of the orders under appeal is set aside. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 19 July 2022

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Judgment (9 paragraphs)

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Legislation Cited (2)

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