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Topic ClosedByron Bay NSW Local Council sleeping in vehicles

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realitycorrodes View Drop Down
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Direct Link To This Post Topic: Byron Bay NSW Local Council sleeping in vehicles
    Posted: 09/June/2013 at 21:19
How does a local council enforce "sleeping in one's car" - if the car is registered and parked legally, and the person sleeping in the vehicle does not answer if someone knocks and no-one knows if they are really sleeping in there?

And if they don't have any proof that you slept in the car - how can they justify giving you ticket for your legally parked registered vehicle on the road, and not giving a ticket to the other registered vehicles on the road.

Looking forward to some serious answers to the legal proof from local councils about proving in court that someone slept in the car.

Without proof what is the likely hood of prosecution in a court of law?


Is it possible to be given a "no overnight sleeping" fine by local councils for just sitting "WIDE AWAKE" in a registered vehicle for 12 hours overnight (8pm to 8am) when the registered vehicle is legally parked in a "no limit parking area" (i.e. there is no parking signs stating any kind of restrictions)but in an area were Local Councils have created their own law stating there is "no overnight sleeping" in the same place where there is a "no limit on registered vehicles parking there".

Do the local council need to have a sign up in the area saying there is "no overnight sleeping" in the same place where there is "no restriction on parking for registered vehicles" in that same area to be able to fine people for sleeping in their vehicle in that area?


Can someone point me to the written law that covers my above to questions. Also point me to the law that allows Councils to introduce such overnight sleeping fines. Is there anything in the law (federal or state) that protects the people of the country or the state from Councils going mad and fining people for sitting in a registered vehicle in a legal parking area? Please could someone direct me to the specific piece of law that covers this topic. On-line reference to Australian Law would be great or specific Australian law book with page number and section title in regard to this would be o.k. as well. No use speculating - lets actually have the law on this.

MartinO View Drop Down
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Direct Link To This Post Posted: 09/June/2013 at 22:15
This is a local authority by-law. The council collects rates from the owners of motels, hotels, caravan parks etc, and the owners of those establishments complain to the council if they believe that they are losing revenue to campers in council car parking spaces. There is also the health issue with overnight stayers dumping food scraps and using the area for a toilet.

Yes the council can issue fines for vehicles that are parked, but containing occupants overnight, whether they are asleep or zonked out of their minds. Remember the council writes the local laws, and the council is voted in by the locals including the accommodation owners.

It will come down to paying the fine ticket or returning to the area weeks later to argue the case in the local court. Remember the magistrate is a local also and is unlikely to be persuaded by anything but a compelling case.

If you want a cheap holiday by the seaside, buy a small tent and pay for a space to pitch it beside the car in the local camping ground, it will cost less than the fine.






Edited by MartinO - 09/June/2013 at 22:17
I am NOT a lawyer. Anything said is NOT legal advice.

Please post your legal questions in a forum rather than sending a PM. Thanks.

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Direct Link To This Post Posted: 09/June/2013 at 22:18
Councils have their own acts withy their own bylaws which govern things like noise, pets, busking etc. There are state and fed acts which allow concils to do so. A council can then use its act to enforce laws. For byron you would best start at their website http://www.byron.nsw.gov.au/ and see if you can find something there.

just because their is no breah in criminal laws or traffic laws- you could still be disobeying council laws.

whats the proof that someone was sleeping in a car? who knows?? if a ranger knocked on the window 10 000 times and the person inside was just lying there with eyes closed- most people would accept that as proof of sleeping. It is the only logical conclusion (unless they were dead, but then they wouldnt be likley to show up for the hearing).

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Direct Link To This Post Posted: 09/June/2013 at 22:23

realitycorrodes View Drop Down
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Direct Link To This Post Posted: 10/June/2013 at 10:24
Thanks for the responses.

A few points though.

There is propaganda about people sleeping in vans by rich people who don't like poor people living on the free land/public land outside their houses.

The rich try to smear all the people who sleep in a van as noisy and dirty - this is not true. This malicious misrepresentation. Because the rich no doubt can influence the people who own the papers their coverage is biased - hence the untruth about all van sleepers being dirty and noisy.

Also the rich and their media lackies try to tick people who read their articles into thinking a registered vehicle parked legally is camping - it is not - otherwise we would all be fined left right and center for simply parking legally?

By all means fine people for breaking laws regarding noise based on the fines related to loud noise.

By all means fine people for breaking laws regarding littering based on the fines related to littering.

Littering and noise is the problem - why are we fining legally parked registered vehicles? Because as mentioned it is the rich wanting to lay claim to public land near sights of beauty. By all means the rich have purchased their land close to a beach, but that does not give them the right to bully and unfairly fine poorer people who wish to park their registered vehicles in public legal parking spots made available for everyone.

When people sleep in a van, there is often no way of seeing into the back of a van - I am surprised one was unable to visualise or imagine such a scenario. As such if someone was sleeping in the van and does not answer, there would be no way of distinguishing the legally parked van with a hidden person sleeping in there from a legally parked van with no-one sleeping in there? As such I asked the question about proof in a court of law? I seem to remember the onus is on the accuser to prove a crime has been committed?

I take the point that regardless of Council/police not being able to prove whether one was sleeping in legally parked registered vehicle (van with dark windows and curtains) that the person unfairly given a fine for legally parking in a registered vehicle without being noisy or littering, that person unfairly being targeted will have their time wasted having to attend court. IN such circumstances can the defendant of such misdirected bullying from the rich level a counterclaim to get compensation for time taken of work and travel expenses to attend such a false accusation?

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Direct Link To This Post Posted: 10/June/2013 at 10:29
From one of the articlers...thank you!
“In December 2009, council wrote to the Department of Local Government asking for the (Local
Government) Act to be amended to give council greater ability to prevent camping in the shire’s
streets and car parks. The Department rejected council’s request for a change to the law in March
2010. In the absence of necessary legislative change, council is doing all it can.”

German backpackers Sophie Bruhn and Gesa Boesch, who have been sleeping in their station wagon
in a Byron Bay street for the past three nights, say they are ‘respectful’ street campers, who use
their car only to sleep in, then leave early in the morning.

realitycorrodes View Drop Down
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Direct Link To This Post Posted: 10/June/2013 at 10:37
I have seen disrespectful foreigners travelling in groups of many vans who make noise and litter. Why not fine them for that? I guess if one is a foreigner then a fine for noise and littering will not get paid. As such the law is trying to prevent such noise and littering by fining the owner of the vehicle for legally parking a registered vehicle - anyone else see how this does not make any sense and unfairly targets innocent people. It is about civil liberties and freedom here - not about rich people lauding over the poor.

Since the foreigners temporarily receive a misdirected fine for parking legally, they will not pay that either as they will be overseas back in their country - and as such the people doing all the fining are trying to get the previous owners of the vehicle or the hire companies of the vehicle to pay - which is nothing but revenue building - it does not stop the nosie and littering.

Are the police and council too lazy or frightened to actually do some work and be alert and on the job to fine people for noise and littering. After all people actually ring them at the time when the noise and littering happen - it cannot be that hard to attend such nuisance behaviour and fine it appropriately?

I don't live in Byron - I live in Brisbane and I complain about noisy neighbours by ringing police who say they will send a car round - I ask that they knock on my door before they knock on the neighbour's door who is making the noise. They have never knocked cos they never come round and I am left listening to noise all night. I guess it would be the same in byron.


What tangled web of lies is going on in this area.

realitycorrodes View Drop Down
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Direct Link To This Post Posted: 10/June/2013 at 11:15
Thanks again to Shoeverine for the article copied and pasted below...
Ellis, Jean
From: James, Ralph
Sent: Friday, 9 September 2011 11:54
To: Staff Governance
Subject: Camping or sleeping in vehicles
Page 1 of 4
16/11/2011
Mark FYI
Sheree pls save
Everyone else pls note
Rangers pls enforce as indicated
For the purposes of a recent Report to Council I undertook a review of the legislation providing
Council with its enforcement.
It would seem that other than the usual traffic management and car parking regulation powers
available to Council there do not appear to be any mechanisms available to Council to control
camping in motor vehicles on roads or road related areas.
Section 632 of the Local Government Act is in the following terms:
632 Acting contrary to notices erected by councils
(1) A person who, in a public place within the area of a council, fails to comply with the
terms of a notice erected by the council is guilty of an offence.
Maximum penalty: 10 penalty units.
(2A) However, a notice:
(a) must not prohibit the drinking of alcohol in any public place, including any public
road or car park, and accordingly a sign under section 632A or 644C is not a
notice under this section; and
(b) must not prohibit or regulate the taking of a vehicle into, or the driving, parking or
use of any vehicle in, any public place that is a road or road related area within
the meaning of the Road Transport (General) Act 2005
Road or road related area is defined in the Road Transport (General) Act 2005 as being:
“ ‘road’ means an area that is open to or used by the public and is developed for, or
has as one of its main uses, the driving or riding of motor vehicles” and
“ ‘road related area" means:
(a) an area that divides a road, or
(b) a footpath or nature strip adjacent to a road, or
(c) an area that is open to the public and is designated for use by cyclists or
animals, or
(d) an area that is not a road and that is open to or used by the public for
driving, riding or parking vehicles, or
(e) a shoulder of a road, or
(f) any other area that is open to or used by the public and that has been
declared under section 15 to be an area to which specified provisions of
this Act or the regulations apply.”
The question is what does “use” mean in the context of “use of any vehicle”?”
I have considered the interpretation of the word “use” when linked to “motor vehicle” and
whether “use” is limited to traffic use.
In State Government Insurance Commission v Stevens Brothers Pty Ltd and Another -
(1984) 52ALR 441 the High Court said (although in a different context)
“….in choosing the expression ‘the use of the motor vehicle’ as the basis for the
requirement of a policy of insurance and for the delimitation of the area of the indemnity to
be obtained, the Act indicates an intention to cover a very wide field, a field more
Annexure 14(c)
Page 1 of 4 Ordinary - 15/12/11
extensive than what might be called the traffic use of the motor vehicle.”
The fact that the use of a vehicle is more expansive than merely a traffic use it confirms the conclusion that, while
section 632 of the Local Government Act empowers Council to regulate the doing of anything in a public place, that
power is not entirely unfettered.
Any notice erected by Council must not prohibit or regulate the parking or use of any vehicle in a public place that is
a Road or Road related area.
The powers presently available to Council appear to be:
1. Council can regulate camping in public places via Section 632 of the Local Government Act.
2. However, Council cannot “prohibit or regulate the taking of a vehicle into, or the driving, parking or use of any
vehicle in, any public place that is a road or road related area within the meaning of the Road Transport
(General) Act 2005” pursuant to s632(2A)(b) of the Local Government Act 1993.
3. Therefore, no power exists to enable Council to regulate, via the provisions of the Local Government Act,
camping in motor vehicles on public roads, footpaths, nature strips adjacent to roads or car parking areas etc.
on the basis that it falls within the meaning of ‘use of any vehicle’ in Section 632(2A)(b)---if they are road
related areas.
The sleeping of persons in vehicles constitutes the use of the vehicle as a refuge in which to sleep. Accordingly
it is beyond the power of Council, pursuant to section 632, to prohibit the sleeping of persons in vehicles if the
activity is on a road related area.
Interestingly, it appears open to Council to prohibit sleeping generally (that is, outside the vehicle) pursuant to
section 632 by erecting the appropriate notice. Similarly, camping and overnight staying (not involving vehicles)
could be similarly prohibited by notice.
4. Council does have powers to regulate motor vehicle parking under the Roads Act 1993 and related traffic
legislation, through parking signage limiting the hours during which parking (even if not sleeping in vehicle) is
permitted.
Therefore if a vehicle is legally parked on a road related area and there is a person/s sleeping in it the occupant/s
should not be disturbed unless there is another offence being committed or there is a reasonable concern for the
welfare of the occupant/s.
In Ryan v Nominal Defendant [2005] NSWCA 59 the court dealt with the meaning of open to or used by the public as
contained in the definition of road related area. The court referred to various cases and relied on them to say;
“The words “open to or used by the public” are apt to describe a factual condition consisting in any real use of the
place by the public as the public – as distinct from use by licence of a particular person or only casual or occasional
use. It may be necessary to distinguish places open to members of the public as such from places left open by the
owner but obviously intended only for the use of a particular description of person. Assuming that the expression
contains two disjunctive limbs, there are potentially three types of area with different combinations of attributes which
can be roads:
(a) Areas which are both open to the public and used by the public;
(b) Areas which are open to the public, but not used by the public;
(c) Areas which are not open to the public, but are used by the public;
Whether a place is “open to the public” is influenced by the nature of the place and the uses for which it is designed
or adapted. Places can be loosely categorised into a number of broad categories based upon the uses for which they
are intended. A town square is in a different category from a supermarket car-park and the gated driveway of a
private residence. In the first case, the place is designed for the congregation of large numbers of people for public
intercourse. In the second case, the place is designed for those persons who are interested in shopping to gather in
accordance with their common interest. In the third case, the place is designed for private individuals to access their
homes excluding all whom they do not wish to entertain. In the first case, there is a public right, in the second a
Page 2 of 4
16/11/2011
Annexure 14(c)
Page 2 of 4 Ordinary - 15/12/11
public invitation, and in the third no public element of either sort.
Whether a place can properly be said to be “open to the public” is the product in each case of a subtle dynamic
between the two fundamental concepts which the potentiality of openness entails: potential for physical use and
potential for lawful use. On the one hand some places have no or no adequate barriers to entry by all and sundry, but
it would be misleading to describe them as “open to the public”, if the landowner has erected signs proclaiming
‘Private Property: Keep Out’. On the other hand other places may be entirely physically closed to the public. Then it
would be wrong to view them as not open to the public if the landowner had by his or her actions effectively signalled
that the public were invited to enter. In each case, the first appearance is belied by the true situation. This dynamic
between the potential for actual and lawful use is the means by which the private property rights recognised by law
are balanced against the actual behaviour of members of the public.
There must be, as a matter of fact, walking or driving by the public on the road, and such walking or driving must be
lawfully performed – that is to say, must be permitted or allowed, either expressly or implicitly, by the person or
persons to whom the road belongs. The statute cannot be supposed to have intended by public “access” such
unlawful access as may be had by members of the public who trespass on the property of either individuals or
corporations.
It is possible to put forward a tentative taxonomy of the relationship between openness and use, based upon different
degrees of relationship between the landowner and the potential user. It is the relationship between the landowner
and those who may use the land which is the primary criterion of openness:
(1) Public places – First, in the case of a place which the public have an entitlement to use, the place will be said to
be “open to the public” regardless of whether in actual fact it is a place which the public can enter without
impediment. This is because the public have a collective right vis-à-vis the (usually governmental) owner to use the
place, and any member of the public who in fact uses it can reasonably expect others to be using it also. In such a
case it is unnecessary to consider the question of whether the place is “used by the public”. The ambit of the
legislation is not confined to such public places.
(2) Private property to which the public are invited – Second, in the case of a place which is held open by a private
owner for the public to enter, the place will be considered to be “open to the public” only if the owner is in fact making
it available to the public. The openness is co-ordinate, both in scope and in time, with the owner’s invitation. Those
who use the place are invitees and unless the invitation is issued indiscriminately to the public at large the place will
not be open to the public. Because the land has a potential for use which exceeds that potential inherent in its
openness, the land may nevertheless be used by the public, if the requirements of use are satisfied.
(3) Other private property – Third, in the case of a place which the public has no entitlement or invitation to use, it can
only be said to be “open to the public” if it is in fact used by members of the public, the owner having failed
consistently to maintain a prohibition on that use, though the users be technically trespassers. Tolerance of the
owner is a shorthand description of that state of affairs. In this case the question of use must be logically anterior to
the question of openness. Having been satisfied of use by members of the public as such (rather than as members of
a smaller subgroup thereof) it would also be possible (albeit unnecessary) to show that the place was also open to
the public. This use may fall short of being properly characterised as a use by the public, but yet may serve as
cogent evidence to prove that the place is de facto open to the public by the tolerance of the landowner. Casual or
occasional use may not be use by the public, but it may (in conjunction with other evidence) allow the Court to infer
that the place is open to the public because the potential for actual use is the stronger element than the absence of
permitted use.
This case is to the effect that a public street is clearly open to and used by the public.
The situation is different in relation to Councils car parks such as Clarkes Beach.
The signage includes "Camping or sleeping in vehicles at any time a prohibited."
The signage also includes "Car park closed to all vehicles between 1 am and 5 am".
Clearly the car park is both open to and used by the public at all times other than between 1 am and 5 am.
For those times the posted notice prohibiting camping or sleeping in vehicles would offend Section 632 of the Local
Government Act and no enforcement action could be taken.
Page 3 of 4
16/11/2011
Annexure 14(c)
Page 3 of 4 Ordinary - 15/12/11
However between 1 am and 5 am it is arguable that the area is not a road related area in that between those hours
the car park is not open to the public i.e. vehicular access is prohibited and those members of the public who enter
the car park between those hours by use of a vehicle are trespassers.
If that is the case and the car park is not a road related area between 1 am and 5 am then the prohibition on camping
or sleeping in vehicles can be enforced and the provisions of section 632 of the Local Government Act do not prohibit
enforcement action.
Therefore Rangers ought, if offences are detected of camping or sleeping in vehicles between 1 am and 5 am in
Council car parks, take enforcement action.
Page 4 of 4
16/11/2011
Annexure 14(c)
Page 4 of 4 Ordinary - 15/12/11

realitycorrodes View Drop Down
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Direct Link To This Post Posted: 10/June/2013 at 11:40
Just felt that this needed to be highlighted again!

Therefore if a vehicle is legally parked on a road related area and there is a person/s sleeping in it the OCCUPANTS SHOULD NOT BE DISTURBED unless there is another offence being committed or there is a reasonable concern for the
welfare of the occupant/s.

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Direct Link To This Post Posted: 10/June/2013 at 12:04
I was legally parked in a registered vehicle in the byron area. I left that vehicle overnight in this legal park. In the morning I was sitting in the driver seat while the vehicle was still parked in the same legal parking area it had been all night, when a police man pulled up beside me and proceded to bang his fist against my vans back window. The police man had noticed I was sitting in the driver seat, so I opened the door and asked him politely why he was assaulting my vehicle with his fist? He did not answer that question - but came around to the driver seat were I was sitting and stated "I notice this vehicle has been legal parked here all night?" and then asked me where I slept last night. I said I spent the night walking along the beach and as such I did not sleep at all last night. He responded sarcastically "Yeah right, if I see your vehicle legally parked here tonight I'll fine you!" Taken a back by this threatening and bullying behaviour I felt it wise to withdraw communication and contact with such a bully in uniform. I did however wish to query the Police officer as to the nature of the fine he was going to give me and my legally parked registered vehicle.

With a little research I have since discovered that when the Police have no law upon which to fine one in such circumstances they start to look for other minor offenses upon which they can make your life miserable e.g. a small crack in your head light or windscreen.

Please read this ladies story:

http://www.echo.net.au/newsitem/sleeping-nightmare-byron-bay

I personally felt it was none of the Police officer's business where I slept.

I was going to ask him to tell me where he slept first before I told him where I slept.

What is the law on having to reveal to a Police Officer where one slept if one has seemingly not committed an offense - and is basicly legally sitting in a legally parked registered vehicle?

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Direct Link To This Post Posted: 10/June/2013 at 12:09
Morgan was one of the people who told their stories at the recent Affordable Housing Forum in Byron Bay.

She is an articulate, well-educated 56-year-old pensioner, with disabilities that hark back to a road accident some years ago. Her son serves in Afghanistan. She is a non-smoker, a non-drinker and a Druid, and she gives the impression that she is a meticulously honest person who doesn’t suffer fools gladly.

Unfortunately, Morgan – like hundreds of other people – cannot afford the rents of Byron Bay so she sleeps in her car. The council, the police and the burghers of the Bay would really prefer that she didn’t.

There are many ways that this problem could be approached. However, the powers-that-be seem to have chosen the worst possible way. Morgan has repeatedly been told, by police and council rangers, that sleeping in your vehicle is illegal.

However, she knows that this is not true. There is no such law and Morgan, who comes from a family with a tradition of army service, is a stickler for regulations.

After being told many times that she was acting illegally by sleeping in her car, she complained to the Customer Assistance Unit of the NSW Police. The complaint was forwarded to the Local Area Command and the superintendant wrote to Morgan, explaining that ‘the legislation in relation to it being illegal to sleep in your motor vehicle parked in the streets of Byron Bay is covered by legislation by the Byron Shire Council.’

Leaving aside the confusion of legislation (a state and federal responsibility) and regulation (a role of local government), is there any regulation passed by Byron Shire Council to make sleeping in a lawfully parked vehicle an offence? Morgan put the question to Council and received, in writing, a reply in the negative.

Council has objected to people sleeping in their cars for some time, and in 2009 unsuccessfully sought a change in the Local Government Act, but the only solution it has been able to come up with is banning parking in certain streets between 1.00am and 6.00am, and designating some areas as ‘no camping’ – although simply sleeping in a vehicle is hard to characterise (and penalise) as camping.

Morgan is very careful not to stray into these no parking and no camping areas. When she needs to sleep in her car she makes sure it is lawfully parked.

Nevertheless, police continued to tell her that she was acting illegally by sleeping in her car. One night in September last she got tired of the game and went to the police station to complain. Once more she was told that it was illegal to sleep in her car ‘under council law.’ Minutes after she left the station she was stopped in Shirley Street and issued with a ticket for driving without lights, an action she strenuously denies.

Morgan believes she has been made the target of multiple breath tests, often several times in one night, as a tactic of harassment.

The charge of driving without lights was, in her opinion, an extension of this harassment. She has a clean licence and no driving convictions. The fine would have been $86 if she had paid the infringement notice, but as a matter of principle she elected to take it to court.

As the case is currently under appeal, we cannot comment on the quality of the evidence proffered in court by the prosecution, but whether Morgan was driving without lights or not ultimately came down to her word against that of a policeman. Last week magistrate Jeff Linden found her guilty and imposed a fine of $600, with $79 costs.

It is not illegal to sleep in your car, provided you park the vehicle lawfully. It is, however, extremely expensive.

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Direct Link To This Post Posted: 10/June/2013 at 14:17
All that needs to be said now is "Move On"!

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Direct Link To This Post Posted: 10/June/2013 at 14:57
Wow having fun in a conversation with yourself?

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Direct Link To This Post Posted: 10/June/2013 at 16:08
realitycorrodes, there is no confusion with legislation, if the good people of Byron Bay do not want you sleeping in your car, they can through their council, pass local laws to fine you for this.

You have the option of paying a fine, camping in the local camping ground for a modest fee, or driving out of town to camp overnight, in some suitable off road area.

THREAD CLOSED




I am NOT a lawyer. Anything said is NOT legal advice.

Please post your legal questions in a forum rather than sending a PM. Thanks.

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