Encroachment onto public land by land lease operator

A decision was handed down and published on 30 June 2025 by the NSW Land and Environment Court after the operator of Hacienda Caravan Park Pty Ltd appealed an order issued by Tweed Shire Council.

The order issued by council was pursuant to Chapter 7 of the Local Government Act 1993, section 124 item 27 regarding the regulatory functions of councils and their order making powers.

Council had received a complaint from a member of the public with concerns about encroachment of moveable dwellings from the adjoining land lease community Tweed River Hacienda Holiday Park onto public land. Following receipt of the complaint council had carried out two inspections and a registered surveyor also conducted a survey to confirm the encroachment.

On 16 September 2024 the council issued the order requiring the operator to remove/relocate specified moveable dwellings from public land.

A total of 13 sites from the adjoining community located at 37 Chinderah Bay Drive, Chinderah are identified in the court’s decision as having encroaching structures onto public land. The structures are also reported as belonging to the occupants of the sites and not the operator who owns the land and manages the community. The homes however were sold by a company controlled by the directors of Hacienda.

The Local Government Act has a total of 27 items in section 124 which councils can use to require someone to do or refrain from doing something. Each item details what action is required, the circumstances that warrant the action and whom the order can be given to.

In this decision the operator appealed an order to remove or relocate specified moveable dwellings from public land identified as Lot 3 in Deposited Plan 535174, located at Chinderah Bay Drive, Chinderah (Public Land).

The land is zoned RE1-Public Recreation under the Tweed Local Environmental Plan 2014 and classified as community land under the Local Government Act 1993 therefore meeting the definition of a ‘public place’.

The Tweed Shire Council are the Crown Land managers and council’s case for issuing the order was that the operator did not have authority under any Act to make use of the public land; the encroachment restricted access to the land and contravened the LGA classification of the land as community land; and the land being located in the immediate proximity of the Tweed River is subject to high flow flood water making it inappropriate and unsafe to others for the structures to be located there.

The Local Government Act 1993 outlines procedures that must be observed before issuing orders so that the rules of natural justice and procedural fairness are observed. The decision reports the steps council took prior to issuing the original order.

On 20 August 2024 council had issued a prior notice of intention to give the order and provided an opportunity for the operator to respond. On receipt of their response the council had then issued the notice of order.

The proceedings in the Land and Environment court initiated by the operator commenced on 11 October 2024 and after multiple adjournments for conciliation conferences, on 25 March 2025 parties reached an agreement that was very similar to the original order however allowed the operator more time to comply.

The decision to extend the time to comply notes the operator’s obligations under agreements with the owners of the homes.

The substituting order now requires the operator to relocate the 13 moveable dwellings which are partly located on public land so that they do not encroach onto a public place on or before 31 October 2027.

The operator agreed to provide a copy of the substituted order to all 13 occupants each year starting from the date of the decision and to ensure a copy of that correspondence is also issued to the council within 7 days of doing so.

While the council has agreed not to take enforcement action against the operator if they made all reasonable endeavours to its satisfaction to comply with the new timeframe, the decision still outlines some of the implications if the operator fails to comply with the order.

Non-compliance with the order may be found to be an offence under s628 of the Local Government Act 1993 and may warrant a maximum penalty of $2,200. Further implications are that the Tweed Shire Council could take any action necessary to give effect to the order which includes the possibility of carrying out the work required and then seeking cost recovery orders in court for any expenses they outlaid.

Other intersecting legislation relating to this matter is the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2021. It prescribes the requirements for the installation of moveable dwellings in a caravan park. For example, the minimum size of a site, setbacks from roads; separation distances from other moveable dwellings and the total floor area for the home and associated structures (with roof). These factors impact the extent of relocation necessary to remove the encroaching structures and may mean that there are homes that need to be relocated to another site.

Under the Residential Land Lease Communities Act there are consumer protections for home owners in land lease communities when an operator requests that their home is relocated. The homeowner must consent to the relocation and cannot be forced.

If the operator makes the request, they must also cover the relocation cost. It could be to another site within the community or to a site in a different community. The home owner must be given a new site agreement that is substantially the same for the new site. The Act also contains compensatory provisions when it is agreed that the home will be moved to another community or when relocation cannot happen.

Before reaching an agreement to relocate, we encourages any home owners in this position to seek advice from your local Tenants Advice and Advocacy Service.

This article was published in Outasite magazine issue 13. Outasite is published once annually. Outasite Lite email newsletter is sent several times a year – subscribe here. All past issues are available in the archive.