Tweed Shire Council v Furlonger

Tweed Shire Council v Furlonger - [2015] NSWLEC 107 - NSWLEC 2015 case summary — Zoe

[2]

Site 199

Amongst the individual sites in the caravan park, Site 199 is located with a frontage to one of the internal access roads (discussed in more detail later) with, at its rear, community land between Site 199 and the Tweed River. The location of Site 199 within the caravan park can be seen from the community lay out plan, a plan exhibited to the affidavit of Mr Legrand, a Council Environment Health Compliance Officer and its sole witness in these proceedings. A copy of that plan is reproduced below with the location of Site 199 marked by me with a red circle for convenience of identification.
The legend of the plan, although difficult to read, identifies Site 199 as being a type F site and the legend to the plan identifies type F sites as having an area of 99m² (11m x 9m). The area of Site 199 and the extent to which it has been developed, both before and after its acquisition by the present owner (the respondent - Mrs Furlonger), is relevant in these proceedings.
Site 199 was acquired by Mrs Furlonger in August 2012. The acquisition was made with her acting as the nominal owner on behalf of her son, Clayton Furlonger - her son contributing $50,000 that he had inherited as the purchase price.
After Mrs Furlonger acquired the site, her husband, Mr Furlonger, undertook a program of additions and alterations to the structures that were located on the site. Part of that work involved the removal of four structures that had been installed by a previous owner of the site whilst the additions and alterations said by the Council to be relevant in these proceedings comprised: 1. The enclosure of a carport at the front right-hand side of the site when viewed from the street; 2. Replacement of an awning structure at and in front of the doorway providing access to the caravan and its annex; and 3. The construction of an integrated facade across the whole of the site frontage. This facade and the associated elements behind it is angled so that it recedes from right to left as one observes the site from the street.
A copy of a photograph exhibited to Mr Legrand's affidavit that shows the present development on the site is reproduced below:

[3]

Mrs Furlonger's Representation

At the pre-trial mention before Craig J, Mr Furlonger spoke on behalf of his wife. At the commencement of the substantive hearing, I enquired of Mr Furlonger whether he wished to seek to represent his wife and he indicated that he did. I then provided to him a copy of s 63 of the Land and Environment Court Act 1979 ("the Court Act") and a copy of rule 7.7 of the Land and Environment Court Rules 2007 ("the Court Rules"). These are the relevant provisions dealing with representation by agents as, in classes 1, 2, 3, 4 and 8 of the Court's jurisdictions, a party is permitted to be represented by an agent if leave for this purpose is granted.
The necessary matters that require to be addressed for this to occur are contained in s 63 of the Court Act and rule 7.7 of the Court Rules. I indicated to Mr Furlonger that I proposed to take a short adjournment to enable him and his wife to read the provisions and, after they had had the opportunity to do so, I would deal, formally, with his application for leave to act as agent for his wife.
After the adjournment, I enquired of Mrs Furlonger whether she still wished to have her husband represent her and she indicated that that was the case. I indicated to Mr Furlonger that, as a consequence, I was satisfied that it was appropriate to grant him the necessary leave and I did so.
Mr Isaacs, counsel for the Council, raised the question of whether or not it would be appropriate for Mr Furlonger to give evidence (as he was the author of one of the three affidavits which had been filed as providing the respondent's evidence in the proceedings). I had earlier indicated to Mr Furlonger that I proposed to treat him, under the circumstances, as if he were a self-represented litigant and that, in doing so, I would provide him with procedural assistance in the presentation of Mrs Furlonger's case but that I would not be providing assistance with the merits of the case.
In doing so, I considered that, as I indicated to Mr Isaacs, Mr Furlonger was, by analogy, in the same position that Dr Wechsler had been in the initial proceedings before Morris C when she had declined to permit Dr Wechsler to give evidence, a position subsequently held by Craig J to be a denial of procedural fairness (see Wechsler v Sydney City Council (No 2) [2015] NSWLEC 35). As the evidence that it was apparent that Mr Furlonger would be seeking to give and rely upon was not expert evidence, consistent with the approach set out by Craig J, I did not see any inhibition to permitting Mr Furlonger to give evidence at an appropriate time.
I also spent a little time explaining a variety of procedural matters to Mr Furlonger (for example, the difference between evidence and submissions) as to do so was necessary, in my view, for the smooth running of the proceedings and effective time management for the court and the parties. Mr Isaacs raised no objection to this process and, indeed, consistent with his obligations to a self-represented litigant, intervened in a practical fashion on a number of occasions to assist Mr Furlonger with matters such as document management and copies of documents where he had multiple copies and Mr Furlonger did not.

[5]

The respondent's Evidence

Mrs Furlonger sought to rely upon affidavits from herself, her husband and her son. Mr and Mrs Furlonger were present in court but their son was not.
Mr Isaacs indicated that notice had been given to Mrs Furlonger, by letter sent by express post to her address in Melbourne and by facsimile to the facsimile number nominated on her notice of appearance, indicating that all three of those who had provided affidavits upon which it was proposed to rely would be required for cross-examination.
Mr Furlonger explained that the facsimile number nominated was not a facsimile in his and Mrs Furlonger's home but was the number at their local newsagent, premises that they attended approximately once a week (on a Monday) to collect any facsimiles sent to them. He explained that they had not done so immediately prior to departure for Sydney and had certainly not received the facsimile from the Council's solicitors. As to the letter that had been sent to them, Mr Furlonger said that he and his wife had left Melbourne on Sunday to come to Sydney for the hearing and that they had not, also as a consequence, received the letter.
As Mr and Mrs Furlonger were available, subject to specific objections raised by Mr Isaacs concerning each of their affidavits (discussed below), there was no general procedural difficulty in the receipt of their evidence. However, Mr and Mrs Furlonger's son was not present and Mr Isaacs indicated that he proposed to object to this affidavit being read (I had earlier explained to Mr Furlonger, as part of my initial procedural explanation, what reading an affidavit meant in a procedural context).
During the morning adjournment on the first day, I looked through this affidavit and, upon returning to court, indicated to Mr Isaacs what elements of the affidavit I might be minded, subject to anything that Mr Furlonger might wish to say on each of these elements, to rule as inadmissible.
I put the proposition to Mr Isaacs that if I were to excise those matters, I would otherwise be minded to permit the affidavit to be read despite the fact that the maker was not available for cross-examination. Mr Isaacs indicated that the matters I had pointed to were those to which he would object but that, if they were struck out, he would no longer object to that affidavit being read in the proceedings.
Mr Furlonger indicated that he did not object to that course and, as a consequence, when it came to the respondent's evidence (and after dealing with any objections that Mr Isaacs might take to Mr and Mrs Furlonger's affidavits) I said I would read all three of the affidavits in her case in the form that would emerge after all objections had been dealt with.
After the close of the Council's case, I suggested to Mr Isaacs that it would be appropriate to deal with his objections to each of the remaining affidavits prior to commencing the oral evidence of Mr or Mrs Furlonger. Mr Isaacs had extensive objections to each of the affidavits either on the basis of relevance or on the basis that they inappropriately expressed opinions.
It was my view that, taking a very strict approach (perhaps not entirely necessary given the fact that, effectively, Mrs Furlonger was self-represented), the objections that were taken by Mr Isaacs should be upheld to the affidavits in the form filed and served.
However, I also felt that significant elements of the material to which objection had been taken would, with minor amendment, be able to be rendered unobjectionable so that the underlying factual information sought to be adduced could be put before me - shorn of those elements that imported the objectionable flavours to the documents. Mr Isaacs raised no objection to such course being appropriate in the circumstances and, as a consequence, I dealt with each of Mr and Mrs Furlonger's affidavits in that fashion.
Each of the alterations or deletions was accepted by Mr Isaacs as satisfying his objections and Mr Furlonger indicated that he did not object to the process being undertaken.
At the conclusion of this process, one which took place late in the first day of the hearing, I arranged for the court officer to provide Mr Furlonger and Mr Isaacs with copies of the two affidavits in the form that they would be read, the amendments having been made by me in red ink so that they were easily understood. At that point, I adjourned the matter until the second day.

[7]

Irrelevant matters

It was clear that Mr and Mrs Furlonger had strongly held views about their neighbours, the management of the Hacienda Caravan Park and the Council. These views concerned what motivation might, in their view, have been behind any or all of these players being involved in matters preceding (but providing foundations for) these proceedings; initiation of the proceedings; and continuing pursuit by the Council of seeking relief against them through these proceedings.
I accept that these views are honestly and genuinely held by Mr and Mrs Furlonger and I do not seek to reflect on the validity or otherwise of any aspect of the views that they hold.
However, it is appropriate to observe that those views do not, save for that discussed in the next section, give rise to matters that are appropriate for me to deal with or otherwise consider in these proceedings. I have, as a consequence, had no regard to those views or their articulation either in oral evidence or in submissions. Claimed inconsistent application of the Council's Enforcement Policy
There is, however, one complaint made by Mrs Furlonger concerning the conduct of the Council which it is necessary that I consider and deal with in light of the documentary and oral evidence. This concerns what, effectively, Mr Furlonger submitted was the differing treatment given to complaints raised by Mrs Bennetti, the occupant of Site 183 at the Hacienda Caravan Park when compared to the Council's response to complaints concerning the activities of Mr and Mrs Furlonger on Site 199.
Mrs Bennetti had written to members of the Council and a number of members of the Council's staff on the 18th and 31st of July 2014 concerning, in the first letter, regulatory activity against Mr and Mrs Furlonger in response to a complaint made by the occupant of Site 200 and, in the second letter, making complaints about building activity undertaken by the owners of Site 198 and Site 200.
The Council responded by letter dated 18 September 2014 to Mrs Bennetti indicating that, with respect to the matters concerning unauthorised works that had been raised in her letter of 31 July, that the Council had commenced an investigation into those matters.
Mrs Bennetti addressed further correspondence to the Council under the heading "an open letter to all Councillors and Executives of The Tweed Shire Council" on both 2 February 2015 and 2 March 2015 complaining at the failure of the Council to respond, substantively, to her earlier complaints. The four letters from Mrs Bennetti, the Council's reply in September 2014 and the original complaint from the occupant of Site 200 were Exhibit 2 in the proceedings.
Mr Furlonger cross-examined Mr Legrand on the Council's Enforcement - Unlawful Activity policy (Exhibit 3) and what Mr Legrand might know about what had happened to these complaints concerning Sites 198 and 200. It was Mr Legrand's response that these complaints had been received during a period when he was on leave and that, to his knowledge, Sites 198 and 200 had been inspected by another employee of the Council, Mr Peter Ainsworth, but that he (Mr Legrand) did not know the outcome.
In response to a call by Mr Furlonger for the Council to produce any report arising from any investigation concerning Sites 198 and 200, at the commencement of the second day Mr Isaacs produced a copy of a letter dated 18 March 2015 addressed to Mrs Bennetti. A copy of this letter was subsequently tendered and became Exhibit B.
Relevant to my consideration, that letter says: Firstly Council apologises for the delay in our response, however as the questions you have raised about Site 198 and Site 200 are very similar to questions raised in a current legal action before the Land and Environment Court, our legal advice is that it would be inappropriate to provide specific details while the matter is before the court.
By inference, Mr Furlonger can be taken to be suggesting that the initial delay in responding to Ms Bennetti's complaint (being a response made some 7 weeks after the date of the complaint - assuming that it was transmitted promptly to the Council) was in breach of the element of the Council's Enforcement policy on page 4 of the document under the heading "Responding to Complaints", a provision that reads: All customer work requests or complaints about alleged unlawful activity should be acknowledged within 14 days and a report should be provided if possible within a further 14 days on what action council has taken or plans to take.
This timeframe, clearly, was not met. Certainly, the delay in providing even the equivocating response of 18 March 2015 (Exhibit B) is to be regretted, and, at least with respect to the initial acknowledgement, might be taken to be evidence of administrative tardiness. However, there is no basis upon which I could conclude that there was inappropriate conduct by the Council in any fashion potentially relevant in these proceedings arising out of or in connection with these complaints and this correspondence. Indeed, as the letter of 18 September 2014 puts it: Such investigations are focused solely on compliance issues and are factual investigations. They occur without reference to any personal issues between the person bringing the matter to Council's attention and the person whose conduct is complained of (and it is generally the case that Council is unaware of such issues when responding to a complaint).
There is nothing in any of the evidence in these proceedings that would cause me to conclude that the Council has acted either in the complaints made by Mrs Bennetti or, indeed, the complaints that give rise to these proceedings, in any way other than entirely in accordance with the sentiments set out in the paragraph quoted above from of the letter to Mrs Bennetti dated 18 September 2014.

[11]

The Relief Sought

The original relief that was claimed by the Council in the summons filed on 16 December 2014 was in the following terms: 1. The Respondent is to bring the structures on Site 199 in the Hacienda Caravan Park, situated at 37 Chinderah Drive, Chinderah in the Tweed Shire Council Local Government Area in the State of New South Wales into compliance with the requirements of the Local Government Act [sic] (Manufactured Home Estates, Caravan Parks, Camping Grounds and Movable Dwellings) Regulations 2005 by: 1. Removing the wall attached to the side of the carport between Site 199 and Site 198; 2. Removing the wall and window attached to the front of the carport including the added portion of the roof at the front of the carport (to at least 1 m inside the side boundary); 3. Removing the added portion of the rigid annex (specifically the roof added over the entrance to the annex ensuring the setback of remaining structures is at least 1 m inside the site boundary). 1. That prayer 1 of the relief sought be complied with within 28 days of the Order being made. 2. The Respondent pay the Applicant's costs of and incidental to these proceedings. 3. Such other Orders as this Honourable Court may deem appropriate.
During the course of Mr Isaac's closing submissions, I raised with him my concerns that, with respect to the first and second elements sought in (1), the relief was prescriptive in a fashion that went beyond mere seeking to ensure that structures on the site achieved compliance with the relevant provisions of the Regulations and that, with respect to the third specific element, it had been accepted, as I understood it after proper consideration of the historic photograph showing, in part, the frontage of Site 199 (the photograph appearing at page 35 of the Exhibits to Mr Legrand's affidavit) that there had, in fact, been no extension to the roof at the front of the carport. This is clear from the copy reproduced below where I have added a red oval in the centre of which is the corner of the then existing roof at the outermost point adjacent to Site 198. This photograph makes it clear that the outermost portion of this existing roof is cantilevered toward the access road with a setback support on this edge.
I had earlier raised with Mr Isaacs, with respect to the rigid annex acting as a portico to the entrance to the structures on Site 199, that this was potentially capable of achieving compliance by certification in satisfaction of cl 166 of the Regulations, certification that would need to satisfy, in addition, the relevant elements of cl 167 (these provisions being dealt with later in this decision). Mr Isaacs agreed that this was the position subject to satisfaction of any other relevant provisions in the Regulations. In response to that, I put to him the proposition that the photographs (one of which is later reproduced in this decision) that appeared on page 61 of the documents exhibited to Mr Legrand's affidavit made it clear, even taking the Council's position on the measuring point for setback from the access road at its highest for the Council, that the relevant elements of the portico structure satisfied the 1 m setback requirement contained in cl 161(a) of the Regulations. Mr Isaacs agreed that this was the correct position.
After the luncheon adjournment on the second day of the hearing, as a consequence of the above exchange concerning the relief originally sought in Order 1, Mr Isaacs sought leave to rely on an Amended Summons that removed, from Prayer 1, all the elements of specificity earlier set out.
A copy of the proposed Amended Summons had been provided to Mr Furlonger and he indicated that he did not object to the proposed amendments. As a consequence, leave was granted to rely upon the Amended Summons, a summons in which the amended form of Prayer 1, now reads: 1. Order the Respondent to bring the structures on Site 199 in the Hacienda Caravan Park, situated at 37 Chinderah Drive, Chinderah in the Tweed Shire Council Local Government Area in the State of New South Wales into compliance with the requirements of the Local Government Act [sic] (Manufactured Home Estates, Caravan Parks, Camping Grounds and Movable Dwellings) Regulations 2005.

[17]

question 2 - site coverage

The Council pressed that the extent of development on the site breached the maximum permitted site cover mandated by the Regulations. The relevant Regulation is in the following terms: 162 Site coverage (1) A tent or caravan (including any associated structure or annexe) must not be installed on a single dwelling site if the floor area of the tent or caravan (including any associated structure or annexe) is more than two-thirds of the area of the site. (2) If there is no carport or garage on the dwelling site, an area with minimum dimensions of 6 metres by 3 metres, accessible from an access road and useable for car parking, must be provided on the site. (3) Subclause (2) does not apply if the resident's parking space for that dwelling site is separate from the site.
In his affidavit, Mr Legrand described the basis upon which he had calculated the area of the structures required to be incorporated for the purposes of ascertaining the site coverage for the purposes of the Regulations. His area calculation and conclusion on the percentage site coverage existing on Site 199 after the works carried out by Mrs Furlonger are included, were set out in his affidavit in the following terms: The extension of the rigid annex and the enclosure of the carport to create a habitable room, means the structures on Site 199 exceeds the site coverage limit. Pursuant to Clause 162 of the Caravan Park Regulations, the maximum site coverage, including a car parking space is two-thirds of the total site size. On 23rd February 2015 I measured the caravan, rigid annex and built-in carport at approximately 8m x 10m or 80 m². A further 6m x 3m or 18m² needs to be included for a car parking space in the calculations so the total structure size (including car parking space) is 98m². From the community map for the Caravan Park (Exhibit AL1) which is required by the Caravan Park Regulation to specify the site size, the size of Site 199 is 11m x 9m or 99m². The structures therefore take up 98.99% which exceeds the permissible site coverage of 66.67%.
Although the resultant site coverage calculated by Mr Legrand was disputed by Mr Furlonger, Mr Legrand was not cross-examined concerning the measurements he had taken that formed the basis of his calculations.
However, although he was not cross-examined on this point, I need not uncritically accept that which he asserts in his affidavit if I have a proper and appropriate evidentiary basis for doing so. I consider that there is such a proper basis for the reasons that follow.

When examining the elements across the front of the site as it now is as depicted in the photograph earlier reproduced taken from page 61 of the exhibits to Mr Legrand's affidavit, Mr Isaacs conceded that the left hand of the three elements at the front of the structures (being the area behind the element of the decorative facade that was open and through which the photos show two plants growing unconstrained), does not constitute an associated structure. This area therefore, does not get incorporated in any site coverage calculation;
Mr Legrand's calculation is based on an area derived from a calculation that is described as being 8m x 10m, a descriptor only appropriate to be considered as defining a rectangular structure;
It is clear from the agreed necessity to exclude the left hand element of the facade treatment that the structure to be measured for site coverage calculation purposes is not a simple rectangle, but one with a more complex angled footprint.

That inaccuracy is sufficient to cause me to reject his site coverage calculation. Absent any other basis for calculating site coverage, I have no foundation upon which I could determine the site coverage and there is no other relevant document (such as a scaled plan of that which is located on the site) from which any inference of site coverage could be drawn.
I also observe that Mr Legrand has interpreted cl 162(2) as mandating the addition of 18 m² to the site coverage calculation required by cl 162(1). A reading of the provision makes it clear that this is not the case. The provision reads: 162 Site coverage (1) ………………………. (2) If there is no carport or garage on the dwelling site, an area with minimum dimensions of 6 metres by 3 metres, accessible from an access road and useable for car parking, must be provided on the site.
This makes it clear that such a parking space must be provided, but it does not mandate the incorporation of such a space in the calculation of the site coverage.
As a consequence, whatever might be the appropriate site coverage percentage having regard, for Site 199, to the caravan and all associated structures and annexes, such area would not include the 18 m² postulated by Mr Legrand.
I reached my conclusion on this matter without considering the fact that there is no assertion by the Council that any further associated structures have been erected behind the carport within the area that appears to be open from the air photo. If there were to be any open area behind the carport and adjacent to the caravan (as would appear to be possible from the air photo earlier reproduced), this would provide further reinforcement to my concern about Mr Legrand's calculation made on the basis of there being a simple rectangular built form on Site 199.
Having reached that conclusion, there is no proper basis upon which I could be satisfied that the site coverage limit mandated in the Regulations has, in fact, been breached by the structures on Site 199.
However, if I be wrong in reaching this conclusion, it is appropriate, at this point, to deal with the question of whether or not, as a matter of discretion, I would be minded to make any order concerning structures on the land in addition to the orders that I otherwise propose to make as being appropriate to remedy those breaches which I am satisfied have been able to be established by the Council. In my consideration of this discretionary possibility, I have also had regard to the fact that, whatever might be the present site coverage calculation, having regard to the orders I propose with respect to the carport, the extent of the enclosed habitable spaces on the site (as elsewhere discussed) will be considerably reduced.
Exhibit 4 (the air photo) clearly shows the size of the development on not only the immediately adjacent sites (Sites 198 and 200) but also on a number of sites more removed from Site 199. On a comparative basis of roof area, that which is on Site 199 is more modest its footprint than its immediate neighbours and is also more modest its footprint than the development footprints on a number of other allotments beyond its immediate neighbours but within is locality within the caravan park.

[18]

The Setback of the Enclosed Carport

As can be seen from the earlier reproduced photograph of the facade of the present structures on Site 199, the angle of the structures on the site, when compared to the alignment of the access road, means that the outer front corner of the enclosed carport is the point of that structure closest to the road. The extent of the setback of that structure from the road is a question of fact of some importance in the proceedings. This arises because of a provision in the Regulations that mandates a 1m setback from an access road for such structures. That provision is in the following terms: 161 Setbacks for tents, caravans and associated structures and annexes A tent or caravan (including any associated structure or annexe) must not be located: (a) closer than one metre to an access road, or (b) …………………………...
Exhibited to Mr Legrand's affidavit were two photographs upon which he relied as demonstrating the setback of this point of the enclosed carport from the access road. The photographs wider viewed of these is reproduced below:
Mr Legrand's evidence with respect to his measurement and the above photograph was in the following terms: On 10 July 2014 I undertook an inspection of Site 199 of the Caravan Park. I used a ruler to measure the setback of the structure that has been erected over the carport which has been enclosed to create an additional habitable room. The pictures I took during my inspection show part of a concrete slab touching the gutter that runs parallel to the access road, that concrete slab would ordinarily be the slab/car park upon which a vehicle would be parked in the carport. The very last photo shows tiling that has been placed on top of the concrete slab/car Park. The construction by the Respondent, as depicted in the photographs taken by me during my inspection on 10 July 2014 and attached hereto and marked as Exhibit "AL 14", is built right up to the boundary of the property and adjacent to access road. The measurements I took show that the structures on Site 199 of the Caravan Park are less than 1 meter [sic] from the access road. The setback requirements Caravan Park Regulations requires [sic] that any associated structure must not be located closer than 1 metre to an access road.
The first question that, therefore, requires to be determined concerning this aspect of the Council's case is whether or not this is the appropriate method of measuring the setback of the structure from the road.
In this regard, there are three relevant aspects of the Regulations engaged. The first is the definition of access road, a definition found in cl 4(1) of the Regulation in the following terms: access road means a road (other than a public road) situated within a manufactured home estate, a caravan park or a camping ground.
The second is the provision in the Regulations specifying road widths in caravan parks, a provision in the following terms: 94 Width of roads (1) The width of an access road must be: (a) at least 6 metres for a two-way access road, and (b) at least 4 metres for a one-way access road. (2) ………………...
Finally, there is a clause in the Regulations dealing with requirements for road surfaces in caravan parks. This provision is in the following terms: 99 Road surfaces All access roads, including all passing and parking bays, must have an all-weather sealed or other surface finish specified in the approval for the caravan park or camping ground, and must be adapted to the topography to allow for adequate drainage and to eliminate excessive grades.
It is clear from the two measurement photographs that, as Mr Legrand indicated, the post is very close to the boundary of Site 199. It is, however, necessary to determine whether the extent of the breach of cl 161(a) of the regulations is a matter of a few centimetres (which would be the case if the edge of the dish drain closest to the post is to be the point from which the measurements are taken) or somewhere of the order of 750 mm or so (if the measurement is to be taken from the edge of the tar-sealed surface). I indicated to Mr Isaacs and to Mr Furlonger that the words in cl 99 of the regulations requiring an access road to be adapted to the topography to allow for adequate drainage warranted consideration as it might mean that the relevant measuring point was the edge of the tar-sealed surface rather than that of the drain.
This gave rise to the second of the matters (concerning drains) about which it was appropriate to permit Mr Furlonger to give limited additional evidence in chief when he entered the witness box. When he did so, it was his evidence that:

There was no drain on the side of the access road away from Site 199; and
The drain on the side of the access road next to Site 199 only ran for a limited distance along that side of the road.

Mr Legrand had earlier indicated, in his oral evidence, that he had not noticed whether there was a drain on the other side of the access road nor had he noticed the distance to which the drain on the Site 199 side of the access road extended.
Mr Isaacs proposed to me that a better understanding could be obtained from a closer examination of the air photo earlier reproduced. He and Mr Furlonger subsequently exchanged views as to what might or might not be able to be discerned from the extent of the train able to be seen in what was, in reality, quite a poor reproduction.
It seems to me, in the end, that little turns on the precision of the measurement as, whichever interpretation might be taken, the post is obviously less than a metre from the edge of the tar sealed road - thus breaching the regulation even on the most possibly beneficial construction of cl 99 in favour of Mrs Furlonger. However, whether or not there is a drain on the other side of the access road, it is clear that the drain forms part of the relevant community infrastructure within the road reserve and should be regarded as being part of the access road for the purposes of the Regulations.
I am, therefore, satisfied that the installation of this post (being one of the new posts constructed for Mrs Furlonger) and the extension of the enclosing wall on this side of Site 199 constitute breaches of cl 161(a) of the Regulations.
However, it is clear that this post has been installed to provide support for the cantilevered section of the carport roof at a point in the vicinity of the leading corner of the roof as shown in the earlier marked photograph of development on the site at the time of its purchase by Mrs Furlonger. It would also appear that this new post is likely to be a necessary support for the decorative fascia now extending across the whole of the frontage of Site 199.
Although the question of enclosure of the carport is discussed, specifically, in the following section, it is clear that this post also forms an essential part of that enclosure.
Mr Isaacs suggested that it was necessary to ensure that there was sufficient removal of the enclosure along the boundary with Site 198 to ensure that any vehicle reversing out of that site would be able to be seen by a vehicle approaching from the direction of Site 199.
I do not accept that that is a necessary outcome absent any other reason to require removal of portion of this wall. As the new fascia across the whole of the front of Site 199 makes, from the various photographs in evidence, a positive contribution to the streetscape of its locality, leaving it in place is an acceptable outcome despite the breach of the setback requirement. For the reasons set out below, there is no basis in the Regulations specifically mandating removal of this wall.

[19]

Enclosure of the carport

The proceedings unfolded on the basis that the Council asserted that enclosure of the carport was in breach of cl 141 of the Regulations. This clause requires that, relevantly for comparison with the present structure on Site 199, that: The carport must have at least two sides open and at least one third of its perimeter open.
This provision does not apply to Site 199 as the following analysis demonstrates.
The clause is part of Subdivision 1 - General of Division 4 Relocatable Homes and Associated Structures in the Regulations. The definitions provisions for the Regulations are contained in Part 1 - Preliminary, cl 4 Definitions.
Relocatable home is defined in the following terms: Relocatable home means: 1. A manufactured home, or 2. Any other movable dwelling (whether or not self-contained) that comprises one or more major sections, including any associated structure that forms part of the dwelling; but does not include a tent, caravan or campervan or any movable dwelling that is a vehicle of a kind that is capable of being registered within the meaning of the Road Transport Act 2013.
On the other hand, caravan is separately defined in the following terms: Caravan means a movable dwelling that is designed so as to be capable of being registered (within the meaning of the Road Transport Act 2013) as a trailer, but does not include a camper trailer.
Movable dwelling is separately defined in the Act as earlier reproduced and it is clear that movable dwellings and relocatable homes are entirely separate and differently regulated classes of structure.
The provisions of cl 141 dealing with the enclosure of carports are contained, as earlier indicated, in Division 4 of the Regulations and relate to relocatable homes and associated structures.
Regulations for caravans, tents and annexes are contained in Division 5 of the Regulations. Relevantly for these proceedings, this latter Division sets an entirely separate regulatory structure for caravans such as that which is located on Site 199. As a consequence, cl 141 of the Regulations does not apply to Site 199.
Similarly, cl 142 - the provision that prohibits associated structures from being designed or modified so as to be usable as a habitable room - also does not apply to the carport structure on Site 199.
There is, therefore, no basis founded on cll 141 and 142 that could justify any intervention with the enclosure of the carport on Site 199. This, however, does not prohibit proper consideration of the effect of enclosure of the carport in light of the relevant elements of cl 162 of the Regulations, particularly those contained in clause 162(2) requiring that there be a carport or, absent provision of a carport, a parking space of defined minimum dimensions being provided on the site.

[21]

The portico roof (rigid annex) extension

The photo earlier reproduced showing the frontage of Site 199 at the time it was purchased by Mrs Furlonger and prior to the works being carried out, shows that there was a portico roof providing shelter at the entrance to the enclosed annex (photo at page 35 of the Exhibits to Mr Legrand's affidavit.
Mr Furlonger does not contest that this structure has been replaced and is now incorporated within the integrated facade structure located across the front of the built form on Site 199. It was Mr Furlonger's evidence that he had replaced the existing portico with one of the same dimensions but had increased its pitch somewhat; replaced a rusted steel supporting post with a substantial timber post; and connected the new roof to the main roof drainage system (affidavit of Mr Furlonger affirmed 24 March 2015). The regulations require that such annexes (or in this case extension to an existing annex) be certified to be structurally sound (cl 166) and designed to resist wind loads as specified in cl 167.
The Council says that such certification has not been provided concerning this element constructed for Mrs Furlonger. I understood that Mr Furlonger accepted that this was the position. However, to provide a proper evidentiary basis for dealing with this matter, I record that Mr Legrand gave uncontradicted evidence on this point in his affidavit. The relevant portion was in the following terms: I have checked the records of Tweed Shire Council and at no time has the Council received any certification from a current practising structural engineer in relation to the extension to the rigid annex.
That evidence, contained on page 8 of Mr Legrand's affidavit is unexceptional, unchallenged and satisfies me that the provisions of the Regulation have not been met with respect to the portion of the annex forming the portico to the front door in the facade of the site.
However, the sentence that preceded it was in the following terms: The extension to the rigid annex has not been constructed in accordance with the requirements for structural soundness and wind resistance as required by Regulations 166, 167 and 171 respectively.
During the course of his oral evidence, Mr Legrand acknowledged that he had no building qualifications. As a consequence, as I indicated to Mr Isaacs, I do not accept that first sentence of Mr Legrand's evidence concerning the rigid annex roof extension as there is no proper qualification basis for doing so. Rejecting that sentence, however, does not impact on the necessary conclusion to be drawn with respect to the rigid annex - the conclusion that the Regulations require structural soundness certification and no such certification has been provided.
Although not the subject of contest in any of Mr Legrand's evidence nor in cross examination of Mr Furlonger (and Mr Isaacs made no submissions in objection to it), it is obvious that the roof forming the portico element protecting the access to the habitable space is no longer a skillion roof but is a gabled one. This can be seen in the photograph reproduced below:
Although the change of nature of the portico roof causes it to be significantly different as the above photograph demonstrates, the replacement of the skillion roof present when Mrs Furlonger purchased Site 199 with the pitched roof and decorative gable forms part of the new, attractive facade. The Council not having raised any objection to this roof form (subject to appropriate structural certification), there is no need for me to intervene with respect to it.

[22]

Summary of Findings

In summary, I am satisfied that the following findings arise from the evidence: 1. The respondent has carried out works to the structures on Site 199 at the Hacienda Caravan Park without the consent of Tweed Shire Council in circumstances where the works carried out were ones for which the consent of that Council was required by virtue of the provisions of s 68 of the Local Government Act 1993; 2. The works carried out by the respondent at Site 199 included the erection of a rigid annex extension acting as a portico over the entrance door to the caravan and annex on the site (this structure being in replacement to an earlier awning at the same location) and this forms part of the works carried out without the consent of the Council and such consent was required. Further, no certification of structural adequacy has been provided to Tweed Shire Council as required by cll 166 and 167 of the Regulations; 3. The works included replacement of a number of supporting elements to the roof of the pre-existing carport on the site and that this replacement of the supporting structures forms part of the works carried out without the consent of the Council and such consent was required; and 4. The new supporting element for the roof of the carport at its corner closest to the access road and adjacent to Site 198 is located at a setback less than 1 m from the access road and portion of the wall running toward the rear of the site are in breach of the requirements cl 161(a) of the Regulations,
However, the claim that carport has been enclosed so as to form a habitable room with the creation of the habitable room being a breach of cl 141 of the Regulations and the extent of the enclosure carried out to effect the creation of the habitable room also being a breach of cl 142 of the Regulations is unstainable as, for the reasons earlier set out, these provisions are not applicable to the structures located on Site 199.
Further, I am not satisfied that there is a proper evidentiary basis, for the reasons earlier set out, to conclude that there has been a breach of the mandated maximum site coverage percentage set out in cl 162(1) of the Regulations.

[23]

Costs

The third of the orders sought in the original Summons and maintained in the Amended Summons was that the Respondent pay the Council's costs of these proceedings.
During the course of the hearing, the Council was granted leave to amend its Summons with respect to the principal relief sought in a fashion that removed the detailed prescriptive elements that the Council said should be mandated to ensure compliance with the Regulations. What remained as being sought was a more general order that the Respondent should return the Site to a form that complied with the Act and the Regulations.
As I have earlier set out, with respect to at least one element of the prescriptive relief initially sought (the assertion that there had been an extension to the roof of the carport and that such roof extension should be ordered to be removed) simply lacked any factual base. Indeed, even a cursory consideration of the photograph at page 35 of the exhibits to Mr Legrand's affidavit (earlier reproduced with marking added by me to highlight why the assertion of roof extension was simply incorrect) means that that element should never have been pleaded.
Similarly, the wall between Site 199 and Site 198 along the edge of the carport was, in the original relief, proposed to be subject to a requirement for its removal. That wall contributes to the enclosure of the carport in what the Council alleged was a breach of cl 141(2) of the Regulations (a provision which does not apply to Site 199) and it extending to a point closer than 1 m from the access road in breach of cl 161(a) of the Regulations (a provision which does apply to Site 199). The only foundation for relief with respect to that wall would be to address the second applicable non-compliance. There was no vice in the existence of the wall providing a foundation for the making of a specific order requiring the removal of the entirety of that wall (except to the extent that it formed part of the works that had been erected without the approval of the Council).
Pressing that there was a breach of cl 141(2) of the Regulations had no basis in the Act or Regulations and, to the extent time at hearing (or in preparation for it) was devoted to this claimed breach, such time and effort was wasted and should not have occurred.
The proposed relief seeking the demolition of the rigid awning forming the portico to the front door to the caravan and associated structures on the site had a similar general foundation (of being an element of the works carried out without consent). However, as Mr Isaacs accepted during the course of the proceedings, an acceptable remedy for this (within the scope of the exercise of my discretion) was to require that the appropriate structural certification be provided as an alternative to requiring demolition.
As earlier discussed, given that there is no non-compliance with the setback requirements by this structure and that it was the replacement of a pre-existing structure (the pre-existence of such an awning also being obvious from even a cursory examination of the photograph at page 35 of the Exhibits to Mr Legrand's affidavit) seeking specific relief by demolition was, on balance, an unnecessarily severe alternative to a requirement to provide appropriate certification in satisfaction of cll 166 and 167 of the Regulations.
Although, conventionally, costs follow the event in civil enforcement proceedings such as these, that presumption can be tempered in light of the extent of the relief granted when compared to the relief that was sought (having regard to the extent to which the conduct of the proceedings both in preparation and in court may have been directed to matters upon which the otherwise successful party was unsuccessful).
I interpose, at this point, that Mr Furlonger sought, at least by inference, to rely on a letter from Mrs Furlonger to the Council dated 28 July 2014 seeking a meeting on site to discuss matters then in dispute with the Council relating to the works. That letter was written at a time when other proceedings in this Court were on foot. Those proceedings were not civil enforcement proceedings. These civil enforcement proceedings were not commenced until their initiating summons was filed on 14 December 2014, some more than 4 months after the correspondence to which Mr Furlonger has referred. In circumstances where, in the context of criminal enforcement proceedings, the Council rejected a request for discussions with the respondent, I do not consider that that refusal is a matter of relevance to my consideration of costs issues in these proceedings.
However, I do consider that some portion of the preparation for the hearing and a deal of the time taken during the hearing involved matters that either were without factual or legal foundation or were, in the way the case was ultimately advanced by the Council, inappropriately prescriptive in the outcome proposed in the initial relief sought.
As a consequence, whilst these matters do not warrant, in my assessment, any major disturbance to the costs order that would conventionally follow in these proceedings, I do consider that a more than minor adjustment is appropriate to have regard to the factors I have outlined.
In expressing this conclusion, I do so with proper regard to the long settled precept that costs orders are compensatory for the costs that a successful party incurs in bringing the proceedings and conducting them to finality and that such orders are not, in any fashion whatsoever, to be flavoured with any punitive aspect. I make that observation, expressly, for the benefit of Mrs Furlonger lest it be thought that my consideration of whether or not I should in some fashion discount the conventional costs order was being contemplated in light of the claims made (some of them in quite unfortunate and extravagant language) concerning the motivation of the Council administration in general or Mr Legrand in particular. I have, in my consideration of this aspect of the proceedings, expressly and entirely disregarded all assertions of that nature.
However, I am satisfied that it would not be appropriate to award the Council the entirety of its costs of the proceedings and that a discount should be applied. Doing as best I can having regard to the way the in court proceedings unfolded, I consider that it would be appropriate to order that the respondent pay 75% of the Council's costs as agreed or assessed rather than the totality of the costs on that basis.

At a glance

Court

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Before

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Source

Catchwords

Judgment (28 paragraphs)

Parties

Cases Cited (1)