AMT Planning Consultants Pty Ltd t/as Coastplan Consulting v Central Coast Council

[2018] NSWCA 289

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	AMT Planning Consultants Pty Ltd t/as Coastplan Consulting v Central Coast Council [2018] NSWCA 289
Hearing dates:	22 October 2018
Decision date:	28 November 2018
Before:	Basten JA at [1]; Macfarlan JA at [33]; Sackville AJA at [34]
Decision:	1.   Appeal dismissed. 2.   Appellant pay the respondent’s costs of the appeal.
Catchwords:	PLANNING LAW – existing use rights – development consents granted in 1980 and early 1983 for use as a caravan park – conditions restricted use of the caravan park to short term accommodation – use as a caravan park prohibited from 5 May 1983 – whether existing use rights as a caravan park limited to short term accommodation – whether conditions can be taken into account in characterising existing use – whether a condition referring to the Council’s Caravan Code had an ambulatory operation.
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW), ss 4.65, 92, 93, 95, 99, 106, 107; Pt 4, Divs 1, 2, 4; Div 4.11 Environmental Planning and Assessment Amendment Act 1996 (NSW), Sch 11, cl 12 Environmental Planning and Assessment Amendment Act 2017 (NSW) Interpretation Act 1987 (NSW), s 30 Land and Environment Court Act 1979 (NSW) Local Government Act 1919 (NSW) Local Government Act 1993 (NSW), s 68 Environmental Planning and Assessment Regulation 2000 (NSW) Environmental Planning and Assessment (Savings, Transitional and other Provisions) Regulation 2017 (NSW) Sydney Regional Environmental Plan No 6 – Gosford Coastal Areas
Cases Cited:	Abret v Wingecarribee Shire Council [2011] NSWCA 107; 180 LGERA 343 Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73; (2018) 357 ALR 55 Australian Securities and Investments Commission v Administrative Appeal Tribunal (2011) 195 FCR 485; [2011] FCAFC 114 Bardsley-Smith v Penrith City Council [2013] NSWCA 200; 195 LGERA 34 Botany Bay City Council v Parangool Pty Ltd [2009] NSWLEC 198 Botany Bay City Council v Workmate Abrasives Pty Ltd [2004] 138 LGERA 120 Coastplan Consulting v Central Coast Council [2018] NSWLEC 47 Council of City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493; [1957] HCA 15 Jojeni Investments Pty Ltd v Mosman Municipal Council (2015) 89 NSWLR 760; [2015] NSWCA 147 Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12 Marshall v Director General, Department of Transport (2001) 205 CLR 603; [2001] HCA 35 Meriton Apartments Pty Ltd v Fairfield City Council [2004] NSWLEC 423 MM & SW Enterprises Pty Ltd v Strathfield Council [2010] NSWLEC 8; (2010) 172 LGERA 125 North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd (1989) 16 NSWLR 50 Royal Agricultural Society v Sydney City Council (1987) 61 LGRA 305 Shire of Perth v O’Keefe (1964) 110 CLR 529; [1964] HCA 37 Sutherland Shire Council v Benedict Industries Pty Ltd (No 4), [2017] NSWLEC 4 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259; [2008] HCA 5
Texts Cited:	Gosford Interim Development Order No 122
Category:	Principal judgment
Parties:	AMT Planning Consultants Pty Ltd t/as Coastplan Consulting (Appellant) Central Coast Council (Respondent)
Representation:	Counsel: Mr AM Pickles SC / Mr JP Farrell (Appellant) Mr C Ireland / Ms E Tringali (Respondent)   Solicitors: Tonkin Drysdale Partners (Appellant) Central Coast Council (Respondent)
File Number(s):	2018/136719
Decision under appeal	Court or tribunal: Land and Environment Court of New South Wales Jurisdiction: Class 1 Citation: [2018] NSWLEC 47 Date of Decision: 10 April 2018 Before: Robson J File Number(s): 2017/205594

HEADNOTE

[This headnote is not to be read as part of the decision]

On 2 September 2015, the appellant lodged a Development Application (2015 DA) with the Central Coast Council (Council) seeking consent for the development on land at Empire Bay. The 2015 DA sought consent to the construction of 48 new caravan sites for “long-term accommodation”. Under the City of Gosford Interim Development Order No 122 (IDO 122) development of land within Zone 7 (c2), including the Empire Bay land, for the purpose of a caravan park is prohibited.

Prior to 6 May 1983, use of the land as a caravan park was permissible with the consent of the Council’s predecessor.

On 21 January 1980, a development consent was granted for use of the land as a caravan park (1980 Consent). The consent was subject to the following condition:

(aa) Compliance with Council’s code for Caravan Parks; in particular, no site may be used for permanent accommodation.

The Gosford Council’s Caravan Code (Caravan Code) in 1980, contained the following clause:

“A.3   No site shall be used continuously for any period greater than 6 weeks ...”

Clause A.3 of the Caravan Code was repealed on 28 September 1982.

A second development consent was granted on 18 January 1983 (1983 Consent) for an additional 33 sites, subject to the following condition:

“(i)   No site shall be used continuously for any period great than six weeks”

On 12 May 2017, the Council refused the 2015 DA. The appellant’s appeal to the Land and Environment Court was dismissed. The appellant appealed to this Court pursuant to s 57(1) of the Land and Environment Court Act 1979 (NSW) against the primary Judge’s decision on a question of law.

The appellant contended that the owners had existing use rights protected by s 107(1) of the Environmental Planning and Assessment 1979 (NSW) extended to use of the land as a caravan park for long term accommodation.

Sackville AJA (Macfarlan JA agreeing) held:

(i) The 2015 DA, insofar as it relied on an existing use of the land as at 6 May 1983, fell to be determined in accordance with the definition of “existing use” in s 106 of the EPA Act as amended in 1996. There has been no material change to s 106 of the EPA Act since 1996, except renumbering as from 1 March 2018: [89], [33].

Sackville AJA (Basten and Macfarlan JJA agreeing) held:

(ii) The question posed by ss 106(b)(i) and 107 of the EPA Act requires the consent as a whole to be considered, including any conditions limiting the permitted use: [97], [30], [33].

Cf MM & SW Enterprises Pty Ltd v Strathfield Council [2010] NSWLEC 9; 172 LGERA 125; Jojeni Investments Pty Ltd v Mosman Municipal Council (2015) 89 NSWLR 760; [2015] NSWCA 147 applied;

Shire of Perth v O’Keefe (1964) 110 CLR 529; [1964] HCA 37; Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12; Abret v Wingecarribee Shire Council [2011] NSWCA 107; 180 LGERA 343; Botany Bay City Council v Parangool Pty Ltd [2009] NSWLEC 198; considered.

(v) The primary judge did not err in concluding that ss 106(b)(i) and 107 of the EPA Act did not entitle the land to be used as a caravan park for permanent or long term accommodation: [113], [30], [33].

Shire of Perth v O’Keefe (1964) 110 CLR 529; [1964] HCA 37; Abret v Wingecarribee Shire Council [2011] NSWCA 107; 180 LGERA 343; Royal Agricultural Society v Sydney City Council (1987) 61 LGERA 305; Botany Bay City Council v Parangool Pty Ltd [2009] NSWLEC 198; considered

Jojeni Investments Pty Ltd v Mosman Municipal Council (2015) 89 NSWLR 760; [2015] NSWCA 147; North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd (1989) 16 NSWLR 50; distinguished

(vi) The repeal of cl A.3 of the Caravan Code in 1982 did not remove or affect the operation of condition (aa) to the extent that it prohibited the use of caravan sites for permanent accommodation: [121], [30], [33].

Bardsley-Smith v Penrith City Council [2013] NSWCA 200; (2013) 195 LEGRA 34; Sutherland Shire Council v Benedict Industries Pty Ltd (No 4) [2017] NSWLEC 4 applied.

Basten JA:

(vii) In the first instance, one should address the question whether particular use qualified as an “existing use” by reference to the legislation in force at the time the prohibition came into force: [19]; the amended definition of “existing use” does not materially differ from the original definition and the temporal issue may therefore be disregarded: [29].

(viii) While a statement by a court as to the meaning of a statute has precedential effect, it is not appropriate to apply a judicial exegesis in place of the statutory language. A construction given to similar legislation, not being a uniform law, in another jurisdiction will not govern the meaning of the local statute: [31].

Shire of Perth v O’Keefe (1964) 110 CLR 529 [1964] HCA 37 considered; Marshall v Director General Department of Transport (2001) 205 CLR 603; [2001] HCA 37; Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 359; [2008] HCA 5 applied.

Judgment

1. BASTEN JA: A development application filed on behalf of the owners of a caravan park at Empire Bay was refused by the respondent Council on the basis that the development was prohibited in the relevant zone. The applicant appealed to the Land and Environment Court. In order to succeed, the applicant needed to establish an entitlement in the owner of the land to “existing use” rights which extended to occupation of the caravan park by long-term residents, as opposed to short-term holidaymakers.

2. The Class 1 appeal in the Land and Environment Court was heard by Robson J in December 2017. On 10 April 2018 judgment was delivered dismissing the appeal. [1] On 10 July 2018 the applicant filed an appeal in this Court.

   1. Coastplan Consulting v Central Coast Council [2018] NSWLEC 47.

3. The appeal should be dismissed. The appellant was unable to identify a relevant error of law on the part of the primary judge. Subject to the observations set out below, I agree with the reasons of Sackville AJA.

Statutory scheme

4. The land the subject of the development application was the subject of consents granted by the predecessor to the respondent, namely Gosford Shire Council. The first consent, granted on 19 February 1980 permitted use of the land as a “caravan park” with 36 caravan sites. A second consent, granted on 18 January 1983, provided for an additional 33 caravan sites.

5. On 6 May 1983 the land was rezoned so that the use for “caravan parks” was prohibited. Indeed, the prohibition extended to both the previous zoning and the new zoning. [2]

   2.    Sydney Regional Environmental Plan No 6 – Gosford Coastal Areas, amending Interim Development Order No 122 – Gosford.

6. The 1980 consent imposed a condition that “no site may be used for permanent occupation”: condition (aa). The 1983 consent provided that “[n]o site shall be used continuously for any period greater than six weeks”: condition (i). That was where the matter stood at the date the Regional Environmental Plan rendered caravan parks a prohibited use.

7. Whether the present owners now enjoy a relevant existing use right depends upon the definition of such rights in the Environmental Planning and Assessment Act 1979 (NSW) (“the Planning Act”). The Planning Act has been amended on a number of occasions since the commencement of its operative provisions on 1 September 1980. An important issue when determining the nature and effect of an existing use right is the date at which the legislation operates.

8. As enacted, existing use provisions were found in Div 2 of Pt IV of the Planning Act. The Division, as at the date on which the prohibition took effect in May 1983 was unamended and contained four sections (ss 106-109). The principal operative provision was s 107 which provided:

107.   (1)   Except where expressly provided in this Act, nothing in this Act or an environmental planning instrument prevents the continuance of an existing use.

(2)   Nothing in subsection (1) authorises—

(a)   any alteration or extension to or rebuilding of a building or work;

(b)   any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned;

(c)   the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 91(3)(b); or

(d)   the continuance of the use therein mentioned where that use is abandoned.

(3)   Without limiting the generality of subsection (2)(d), a use shall be presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months.

9. In May 1983 the relevant interpretation provision, s 106, provided as follows:

106.   In this Division, "existing use" means—

(a)   the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument having the effect of prohibiting that use; and

(b) in the case of a building, work or land erected, carried out or used in accordance with a consent to which section 99(1)(a)(ii) applies—the use of that building, work or land for the purpose specified in the development application to which the consent was granted.

10. Section 99 of the Planning Act provided for the time at which a development consent would lapse. It applied to consents granted under Pt IV, Div 1. To the extent that the appellants rely upon the 1980 consent, it is clear that par (b) cannot apply because the consent pre-dated the commencement of the Planning Act. Accordingly, to the extent reliance is placed upon the February 1980 consent, the only criterion is that specified in par (a).

11. With respect to the January 1983 consent, there is no doubt that par (a) was potentially engaged. Paragraph (b) was also engaged if two conditions were fulfilled, namely, if the “land … [was] used in accordance with” a development consent, and s 99(1)(a)(ii) applied to the consent. Section 99(1)(a)(ii) applied “where within one year of the prescribed date [being the date endorsed upon the notice of consent[3] ] a provision of an environmental planning instrument is made having the effect of prohibiting the development”.

    3. Planning Act as enacted, ss 92 and 93(1)(b).

12. There are two further issues to note with respect to the construction of s 106 as originally enacted. First, the purpose underlying par (b) is not entirely clear. Section 99(1) provided that a consent would lapse unless the development “commenced” within a specific time period. Generally that period was two years, but, where a prohibition came into effect within one year of the date of the consent, the development was required to commence within one year of the date of the prohibition coming into force. In other words, so long as the approved use commenced within one year from the date of the prohibition, the existing use was not limited to the actual use of the land at the date the prohibition came into effect.

13. Secondly, the use of the conjunctive “and” between s 106(a) and (b) suggests both must be satisfied. However, if the construction of par (b) just identified is correct, par (b) would appear to be an alternative to par (a); it commences with the words “in the case of …” and clearly does not have universal application. Support for that construction derives from two further considerations; first, unlike par (a), par (b) does not identify the date on which the use is to be considered as “immediately before” the coming into force of the prohibition. Secondly, rather than referring to a use “for a lawful purpose”, par (b) refers to a use in accordance with the consent, “for the purpose specified in the development application”.

14. A further point of distinction between pars (a) and (b) is that par (b) deals specifically with use “in accordance with a consent”, whereas there is no reference to a development application or a consent in par (a). Rather, par (a) adopts the generic concept of use “for a lawful purpose”, which is not limited to use in accordance with a development consent. However, it must include use in accordance with a development consent because par (b) would not operate with respect to development consents which had been in force for more than a year at the time the relevant prohibition came into effect.

15. In considering the date of the applicable legislation, it is clear from par (a) that the relevant date for assessing the use is “immediately before” the date from which the use was prohibited, namely, in this case, 5 May 1983. If par (b) is engaged and operates as suggested above, the use will be that specified in the development application, being a use which must have commenced within one year of the grant of the consent. Thus the question is whether that use must be identified in accordance with the terms of s 106 as in force on 5 May 1983, or the terms in force at the date of the further development application relying upon the existing use which, in this case, was 2 September 2015.

16. Putting to one side the possibility that the answer will be the same whichever form of the legislation is applied, it is helpful in considering the temporal question to identify two possible effects, namely that (i) a use which qualified as an existing use at the date the prohibition came into effect will not so qualify at the date of the fresh application and, in the alternative, (ii) a use which would qualify as an existing use according to the legislation in effect at the date of the application would not have so qualified according to the legislation in effect at the date of the prohibition.

17. Generally, before considering the effect of any change to the definition of “existing use”, one would wish to know whether it was likely to affect uses which were then recognised as existing uses. It would not be right to construe the amending legislation as taking away an existing property right, unless that intention were clearly indicated. Accordingly, one would start by considering whether the use qualified under the legislation in force at the date of the prohibition.

18. In relation to (ii), it would be surprising if a use which did not qualify as an existing use at the time the prohibition came into effect were to be resurrected by a later amendment of the definition. It should be the case that a prohibited use which did not qualify as an existing use would not operate once the prohibition took effect; it would no longer be a lawful use of the land, consistently with principles governing abandonment of uses in s 107(2)(d) and (3). [4]

    4. By September 2015, s 107(2)(d) had become (e): see [22] below.

19. It follows that, at least in the first instance, one should address the question whether a particular use qualified as an “existing use” by reference to the legislation in force at the time the prohibition came into force, that being the time immediately before which the lawful purpose of the use needed to be assessed. In the present case, the legislation set out above contained the relevant provisions.

20. This approach is consistent with s 30 of the Interpretation Act 1987 (NSW), which will operate in the absence of any specific transitional provisions in the Planning Act and amending legislation. Thus, an existing use, identified by reference to the law in force at the time the prohibition came into effect, may be described as a “right” or “privilege” which was acquired, or accrued under that law. An amendment to s 106 would not affect such a right or privilege, in accordance with s 30(1)(c) of the Interpretation Act. On the other hand, if the amendment were to give rise to an existing use which did not exist at the date the prohibition came into effect, that could be characterised as an effect which an amendment does not have, namely to “revive anything not in force or existing at the time at which the amendment … takes effect”, as provided by s 30(1)(a).

21. Paragraph (b) of s 106 was amended to take its current form in 1996. The savings and transitional provisions stated that the amendment was effective from September 1980. [5] However, before considering the effect of the transitional provision it is convenient to identify the effect of the current operative provision.

    5. Environmental Planning and Assessment Amendment Act 1996 (NSW), Sch 11, cl 12.

10. The parties were united in their view that the legislation should be considered as at the date of the development application the subject of these proceedings, namely 2 September 2015. As at that date the operative provision read:

107   Continuance of and limitations on existing use

(1)   Except where expressly provided in this Act, nothing in this Act or an environmental planning instrument prevents the continuance of an existing use.

(2)   Nothing in subsection (1) authorises:

(a)   any alteration or extension to or rebuilding of a building or work, or

(b)   any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or

(c)   without affecting paragraph (a) or (b), any enlargement or expansion or intensification of an existing use, or

(d)   the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 80A (1) (b), or

(e)   the continuance of the use therein mentioned where that use is abandoned.

(3)   Without limiting the generality of subsection (2) (e), a use is to be presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months.

The substantive change from the provision in force in 1983 was the addition of par (c).

23. The definition of “existing use” has changed; at 2 September 2015 it read:

106   Definition of “existing use”

In this Division, existing use means:

(a)   the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for Division 4 of this Part, have the effect of prohibiting that use, and

(b)   the use of a building, work or land:

(i)   for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and

(ii)   that has been carried out, within one year after the date on which that provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse.

24. The reference in par (a) to Div 4 of Pt 4 is obscure, but does not affect the construction for present purposes. The current version of former s 106, s 4.65, appearing in Div 4.11 of the Planning Act, has varied the qualification in par (a) to read “but for this Division”, which renders the qualification comprehensible.

25. Paragraph (b) of s 106 was reformulated in terms which vary the earlier provision. Subparagraph (i) catches any use for which development consent was granted before the commencement of a prohibition, but subpar (ii) limits that effect to a use pursuant to a consent which has been carried out within one year after the date on which the prohibition took effect sufficiently to ensure the consent would not lapse. (Section 95, providing for lapsing of consent, has no provision equivalent to the earlier s 99(1)(a)(ii).)

26. It is clear that the two limbs of par (b) are cumulative; it is also possible that pars (a) and (b) are cumulative, to the extent that both potentially operate with respect to a particular use of land. Although the earlier version of par (b) referred to the purpose specified in the development application that element is omitted from par (b) as in force in September 2015. (There has been no change to par (b) in the current version of the Planning Act, s 4.65.)

27. On one view, the legislative change between 1983 and 2015 could be significant. There was no suggestion that the terms of the 1983 consent had not been carried out by May 1984. At that stage, the consent was limited to the provision of holiday accommodation and did not permit permanent occupation of sites within the caravan park. However, that restriction on use was effected by a condition in the consent, and does not appear in the development application to which, under s 106(b) in force in 1983, reference was required. Although, as explained below, that approach to identifying the scope of the use should not succeed, it provides a basis for the appellant’s claim to existing use rights without such a restriction, a claim which is not available if, in accordance with the common position adopted by the parties, one looks only at the definition of an existing use as at September 2015.

28. The reason that par (b), as originally enacted, should not be read as referring solely to the use identified in the development application is that the use must have been “in accordance with a consent”. The language of par (b) does not support a reading which would permit a use which was not permitted under the consent. In other words, while it may have been appropriate to refer to the development application (because the full extent of the use may not have commenced at the date of the prohibition), any limitation in the consent would control the use.

29. On this reading, the amended definition of “existing use” does not materially differ from the original definition and the temporal issue may therefore be disregarded.

30. As explained by Sackville AJA, the owners’ existing use rights did not extend to operating caravan sites for permanent occupation and the appeal must be dismissed with costs.

31. I also join in Sackville AJA’s caution as to the reliance which can properly be placed on the reasoning of Kitto J in Shire of Perth v O’Keefe. [6] At a level of generality, the reasoning gives valuable guidance. Beyond that, there was a tendency for the submissions which relied upon it to disregard two important principles of statutory interpretation. One is that, while an earlier statement by a court as to the meaning of a statute has precedential effect, it is not appropriate to apply a judicial exegesis in place of the statutory language. The second is that a construction given to similar legislation, not being a uniform law, in another jurisdiction will not govern the meaning of the local statute. Both principles were applied in Marshall v Director General, Department of Transport [7] where McHugh J, noting the similarity between a statutory provision in England and one in Queensland, stated:

“[62]   … But that does not mean that the courts of Queensland, when construing the legislation of that State, should slavishly follow judicial decisions of the courts of another jurisdiction in respect of similar or even identical legislation. The duty of courts, when construing legislation, is to give effect to the purpose of the legislation. The primary guide to understanding that purpose is the natural and ordinary meaning of the words of the legislation. Judicial decisions on similar or identical legislation in other jurisdictions are guides to, but cannot control, the meaning of legislation in the court's jurisdiction. Judicial decisions are not substitutes for the text of legislation although, by reason of the doctrine of precedent and the hierarchical nature of our court system, particular courts may be bound to apply the decision of a particular court as to the meaning of legislation.”

This principle was adopted by the Full Court in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority. [8]

6. (1964) 110 CLR 529; [1964] HCA 37.

7. (2001) 205 CLR 603; [2001] HCA 37.

8. (2008) 233 CLR 259; [2008] HCA 5 at [31] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ).

32. There remains a procedural issue. The applicant in this Court is the consultant who applied for development consent and who, it may be inferred, is an agent of the owners. The orders should, however, bind the owners, who should at all stages have been parties to the proceedings. If the respondent wishes to join the owners it should have liberty to do so.

33. MACFARLAN JA: I agree with Sackville AJA.

34. SACKVILLE AJA: This is an appeal on a question of law pursuant to s 57(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act) against a decision of the Land and Environment Court. The appeal raises a question as to the extent of the appellant’s existing use rights in relation to land that for many years has been used as a caravan park. These rights are protected by s 107(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) (as from 1 March 2018 renumbered as s 4.66(1) of the EPA Act). [9] Section 107(1) provides that nothing in an environmental planning instrument prevents the continuation of an “existing use”.

    9. Sections 106-108 of the EPA Act are reproduced at [42] below. These sections are now ss 4.65-4.67 of the EPA Act and were renumbered by the Environmental Planning and Assessment Amendment Act 2017 (NSW), Sch 4, item 4.2(1), in operation from 1 March 2018. It is convenient to use the earlier numbering as this corresponds to the numbering used by the parties.

35. The subject land is within “Zone No 7 (c2) Conservation and Scenic Protection (Scenic Protection – Rural Small Holdings)” under the City of Gosford Interim Development Order No 122 (IDO 122). The development proposed by the appellant (Coastplan), involves the construction of caravan sites on the land for long-term accommodation. It is common ground that this is currently a prohibited development within Zone 7 (c2). Coastplan is not the registered proprietor of the land but it appears that it lodged the 2015 DA with the consent of the registered proprietors.

36. Coastplan says that development consents granted in 1980 and 1983 in relation to a caravan park on the land created existing use rights for long-term accommodation notwithstanding that each of the consents included a condition prohibiting long-term occupation by residents of caravans. It follows from s 107(1) of the EPA Act, so Coastplan argues, that nothing in IDO 122 prevents continuance of the existing use as a caravan park providing long-term accommodation. The respondent (Council) says that the primary Judge (Robson J) correctly held that Coastplan’s existing use rights are limited to use of the caravan park for short-term accommodation. [10] On the Council’s case, s 107(1) of the EPA Act does not remove the prohibition under IDO 122 on use of the caravan park for long-term accommodation.

    10. Coastplan Consulting v Central Coast Council [2018] NSWLEC 47 (Primary Judgment).

The proceedings

37. On 2 September 2015, Coastplan lodged Development Application 48304/2015 (2015 DA) with the Council seeking consent for a development on land at Ward’s Hill Road, Empire Bay. Curiously enough, the 2015 DA was not in the appeal books. However, it appears that the 2015 DA sought consent pursuant to reg 41 of the Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation). Regulation 41 permits an existing use to be enlarged, expanded or intensified or to be rebuilt, subject to the grant of development consent. [11]

    11. EPA Regulation regs 40-43 are reproduced at [44] below.

38. The 2015 DA sought consent to the demolition of structures (including 12 caravan sites) and the construction of 48 new caravan sites for “long-term accommodation”. On 12 May 2017 the Council refused consent to the 2015 DA on the following grounds:

“1   The proposed development of the site for the purpose of additional caravan park sites for long-term accommodation is prohibited within the 7(c2) Scenic Protection – Rural Small Holdings zone under Gosford Interim Development Order No. l22.

2   The proposed development of the site for the purpose of additional caravan park sites for long-term accommodation is not consistent with the existing use rights applicable to the land, which exist only for short-term caravan park accommodation.” (Emphasis added.)

39. On 28 June 2017, Coastplan filed a Class 1 application in the Land and Environment Court pursuant to s 97(1) of the EPA Act [12] appealing against the Council’s refusal of the 2015 DA. On 10 April 2018, the primary Judge dismissed the appeal.

    12.    See LEC Act, s 17(d). Section 97(1) of the EPA Act was renumbered and amended by the 2017 Amendment Act: see now EPA Act, ss 8.7, 8.10.

40. On 10 July 2018, Coastplan filed a notice of appeal against the decision of the primary Judge pursuant to s 57(1) of the LEC Act. The notice of appeal contained the following grounds:

“1   His Honour erred in law in concluding that the existing use rights to use the land for the purpose approved by the 1980 and 1983 development consents were governed by or to be construed by reference to the conditions of consent and that the use of the land was thus confined to a caravan park for short-term occupation.

2   His Honour erred in law in concluding that condition (aa) of the 1980 development consent did not have ambulatory effect and constrained the use of the caravan park to short-term occupation as at 5 May 1983 when the use of the land for a caravan park became an ‘existing use’".

41. In the course of argument it became apparent that Mr Pickles SC, who appeared with Mr Farrell for Coastplan, was relying on an argument outside the parameters of the notice of appeal. Coastplan was given leave to file an amended notice of appeal which substituted the following for Ground 1 in the original notice of appeal:

“1. His Honour erred in law in concluding that the existing use (within the meaning of s 106(b)), pursuant to the 1980 approval and the 1983 development consent was confined to the purpose of a caravan park for short-term occupation:

(a)   by characterising the purpose of the use by reference to the conditions of consent; and

(b)   by failing to characterise the use by reference to town planning purposes in the Interim Development Order in force at the time the consents were granted.”

Legislation

42. Sections 106-108 of the EPA Act provide as follows:

“106   Definition of ‘existing use’

In this Division, existing use means:

(a)   the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for this Division, have the effect of prohibiting that use, and

(b)   the use of a building, work or land:

(i)   for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and

(ii)   that has been carried out, within one year after the date on which that provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse.

107   Continuance of and limitations on existing use

(1)   Except where expressly provided in this Act, nothing in this Act or an environmental planning instrument prevents the continuance of an existing use.

(2)   Nothing in subsection (1) authorises:

(a)   any alteration or extension to or rebuilding of a building or work, or

(b)   any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or

(c)   without affecting paragraph (a) or (b), any enlargement or expansion or intensification of an existing use, or

(d)   the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 80A(1)(b), or

(e)   the continuance of the use therein mentioned where that use is abandoned.

(3)   Without limiting the generality of subsection (2) (e), a use is to be presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months.

108   Regulations respecting existing use

(1)   The regulations may make provision for or with respect to existing use and, in particular, for or with respect to:

(a)   the carrying out of alterations or extensions to or the rebuilding of a building or work being used for an existing use, and

(b)   the change of an existing use to another use, and

(c)   the enlargement or expansion or intensification of an existing use.

…

(2)   The provisions (in this section referred to as the incorporated provisions) of any regulations in force for the purposes of subsection (1) are taken to be incorporated in every environmental planning instrument.

…”

43. Section 109(1) of the EPA Act provides that nothing in an environmental planning instrument operates to require consent to be obtained under the EPA Act for the continuance of a use for a lawful purpose for which it was being used immediately before the instrument came into force. However, Coastplan has not placed any reliance on s 109(1) of the EPA Act, presumably because s 109(2)(c) states that nothing in subsection (1) authorises any enlargement or intensification of the use therein mentioned.

44. The EPA Regulation relevantly provides as follows: [13]

    13.    Regulation 40 was amended as from 1 March 2018 to insert a cross-reference to the renumbered s 4.67 of the EPA Act.

“Object of Part

40   The object of this Part is to regulate existing uses under section 108 of the [EPA] Act.

Certain development allowed

41   (1)   An existing use may, subject to this Division:

(a)   be enlarged, expanded or intensified, or

(b)   be altered or extended, or

(c)   be rebuilt, or

…

Development consent required for enlargement, expansion and intensification of existing uses

42   (1)   Development consent is required for any enlargement,          expansion or intensification of an existing use.

(2)   The enlargement, expansion or intensification:

(a)   must be for the existing use and for no other use, and

(b)   must be carried out only on the land on which the existing use was carried out immediately before the relevant date.

Development consent required for alteration or extension of buildings and works

43   (1)   Development consent is required for any alteration or    extension of a building or work used for an existing use.

(2)   The alteration or extension:

(a)   must be for the existing use of the building or work and for no other use, and

(b)   must be erected or carried out only on the land on which the building or work was erected or carried out immediately before the relevant date.”

Background facts

45. On 12 November 1979, two named applicants sought consent from Gosford Shire Council (Gosford Council), the Council’s predecessor, for a development on the land described as a “caravan park”. The plans accompanying the development application provided for 36 caravan sites. At the time the land was zoned under IDO 122 as “7(c3) (Scenic Protection – Coastal South)”. Use of land within this zone as a “caravan park” was permissible with the consent of Gosford Council. At that time the expression “caravan park” was not defined in IDO 122.

46. The Local Government Act 1919 (NSW) (LG Act 1919), as then in force, authorised a council to exercise all the powers and functions conferred and imposed on it by an interim development order. [14] The LG Act 1919 empowered a council, among other things, to grant an interim development application “unconditionally or subject to such conditions as it may think proper to impose”. [15]

    14.    LG Act 1919, s 342V(1).

    15.    LG Act 1919, s 342V(1A).

47. On 19 November 1979, Gosford Council wrote to the applicants asking whether they proposed to use any of the sites for permanent occupation. The applicants responded on 23 November 1979, that none of the sites would be leased to permanent occupants.

48. On 21 January 1980, Gosford Council granted development consent “for the establishment of a Caravan Park on the land” (1980 Consent). The 1980 Consent was expressed to be subject to a number of conditions, including the following:

“(aa)   Compliance with Council’s code for Caravan Parks; in particular, no site may be used for permanent occupation”. (Emphasis added.)

49. The reference to a code in condition (aa) was to a document entitled “Minimum Standards for Caravan Parks and/or Camping Areas” (Caravan Code). The Caravan Code was adopted by a resolution of Gosford Council in 1971 and was subsequently amended. The Caravan Code was a statement of policy and did not have the force of statute or subordinate legislation. In 1980 the Caravan Code included the following clause:

“A. 3   No site shall be used continuously for any period greater than 6 weeks. For the purpose of interpretation use shall include the placing on the site of any portable or mobile structure or vehicle capable of being used for residence, and whether occupied or not during the period concerned.”

50. On 28 September 1982, Gosford Council removed cl A.3 from the Caravan Code following a recommendation to that effect in a report from the Deputy Town Clerk to the Council. The report stated that cl A.3 had its origins in s 288A(4) of the LG Act 1919 which provided that a person was not to allow any land occupied by him or her to be used for camping purposes on more than two consecutive days or more than sixty days in any twelve months, unless the council granted a licence pursuant to s 288A(2). The report pointed out that s 288A(3) permitted a council to attach conditions to a licence requiring removal of moveable dwellings. The report continued as follows:

“The problems Council has in policing Clause A3 of the Code are the same as those now fronting the Government. The need for movable dwellings to be occupied on a long term basis, and the economics of running caravan parks by private capital are the two main factors affecting future policy making.

The improved standards applying to privately owned parks such as concrete slabs, drainage, water supply, power supply, sanitary arrangements, and garbage disposal, could possibly be held to reduce the importance of the requirement of site occupancy not exceeding six weeks.

This limitation could be removed by Council until legislation provides for the need or expressly prohibits such occupancy.”

51. On 14 October 1982, the then owner of the land sought development consent for the following:

“additional 33 Caravan lots to the existing 36 lots of [the] Caravan Park”.

Although there was some debate in this Court as to whether this development application related to the whole of the land covered by the 1980 Consent, the documentation indicates that the 1982 development application affected the whole of the land, in that the proposed additional lots were not confined to one particular section of the land. However, the 1982 development application related only to the addition of a further 33 caravan sites on the land.

52. The report from the Chief Planning Officer noted that one objection had been received complaining that the caravan park already had “permanent” residents despite the absence of authorisation to use the land for that purpose. The report commented that the total number of sites on the land would still be below the maximum permitted under Zone 7(c3). While unauthorised establishment of caravan sites could not be condoned, surrounding residents had not objected. The report recommended approval subject to a number of conditions, including what became condition (i), referred to below.

53. Gosford Council determined the 1982 development application on 18 January 1983 (1983 Consent) pursuant to the provisions of the EPA Act then in force. Sections 91(1) of the EPA Act provided that a development application was to be determined by the granting of consent to the application, either conditionally or unconditionally, by the refusing of consent to the application. Section 91(3) stated a condition could be imposed under s 91(1) if it related to any matter referred to in s 90(1). The latter provision specified the matters a consent authority was to take into account in determining a development application. The matters included the provisions of any relevant EPI, the impact of the development on the environment and the social and economic effect of the development in the locality (s 90(1)(a), (b), (d)).

54. Gosford Council’s consent determination stated as follows:

“Pursuant to Section 92 of the Environmental Planning and Assessment Act, 1979, the above development application has been determined by granting of consent subject to the conditions attached.

The reasons for the conditions are to ensure that the development is carried out in the public interest in accordance with those matters referred to in Section 90 of the Act.”

The conditions attached to the consent for the 33 additional sites followed the Chief Planning Officer’s recommendations, including condition (i):

“No site shall be used continuously for any period greater than six weeks.”

55. On 6 May 1983, Sydney Regional Environmental Plan No 6 – Gosford Coastal Areas (SREP 6) came into force. SREP 6 amended IDO 122 by changing the title of Zone No 7(c3) to “Conservation and Scenic Protection (Scenic Protection and Tourist Accommodation)”. At the same time the land was rezoned as No 7(c2) Conservation and Scenic Protection (Scenic Protection – Rural Small Holdings). A caravan park was a prohibited development for land within Zone 7(c2). As from 6 May 1983, development of the land for the purpose of a caravan park therefore became a prohibited development under IDO 22.

56. On 2 September 1986 the then owner of the land sought development consent for the construction of an additional five caravan sites on the land. The Chief Town Planner’s report recommended that consent be granted without any conditions preventing use of the five sites for long-term accommodation. The report under the heading “Zoning” stated as follows:

“The site is zoned partly Rural 1(d) – Urban Investigation and partly Scenic Protection 7(c2). Caravan Parks are not a permissible use under these zonings however, the caravan park was commenced under a previous Scenic Protection 7(c3) zoning. The caravan park can be regarded as an existing use and under Clause 2(c) of Regulation 53 of the Environmental Planning and Assessment Act, Council is empowered to grant consent to additions to a maximum of 10% of the existing floor area. This would allow up to 6 additional caravan sites on the land.”

Gosford Council acted on the recommendation and granted development consent on 23 June 1987 without any conditions preventing long-term occupation of the five sites (1987 Consent).

57. On 1 July 1990, Gosford Council issued a licence under s 289H(i) of the LG Act 1919 in respect of the caravan park. The licence, which was in force for twelve months, authorised the operation of 40 sites for “long term residence” and 28 sites for “short term residence”. The licence for long-term residence was issued notwithstanding s 289H(2) of the LG Act 1919 provided as follows:

“The council shall not issue a licence unless it is satisfied that –

(a) any consent required under the Environmental Planning and Assessment Act 1979 for the use of any land in accordance with the licence and with any conditions … with respect to the licence has been given; and

(b)   the use of any land in accordance with the licence and with any such conditions will not contravene the provisions of that Act or of any environmental planning instrument within the meaning of that Act, in so far as that Act or any such instrument applies to the land …”

58. Gosford Council renewed the licence granted in 1990 on an annual basis until 2004. From 1993 until 2004 the annual renewals were issued pursuant to s 68 of the Local Government Act 1993 (NSW) (LG Act 1993) which permits a person to carry out certain activities, including the installation of a movable dwelling, only with the prior approval of a Council.

59. On 28 July 2000, IDO 122 was amended to include the following definition “camping ground or caravan park”:

“... a site used for the purpose of:

(a)   Placing moveable dwellings (as defined by the Local Government Act 1993) for permanent occupation or for temporary accommodation by tourists; or

(b)   The erection, assembly or placement of cabins for temporary accommodation by tourists.”

The new definition did not alter the fact that a caravan park was a prohibited development on land within Zone No 7(c2).

60. On 1 July 2004, Gosford Council issued a further approval for 40 sites for long-term residence and 28 sites for short-term residence pursuant to s 68 of the LG Act 1993. On this occasion the approval was expressed to operate until 30 June 2009.

61. On or about 13 September 2006, Coastplan applied for approval under s 68 of the LG Act 1993 to increase the number of long term caravan sites from 40 to 68. The supporting Statement of Environmental Effects asserted that the proposed development was “permissible by virtue that it has existing use rights under the [EPA Act]”. The report to Gosford Council on the application stated that “the proposal is consistent with the stated objectives of the Scenic Protection 7(c2) Rural Zone” and recommended approval. Gosford Council granted approval for the change from short-term to long-term use on 16 November 2006, subject to conditions including that a total of 68 sites be available for long-term accommodation.

62. From 1 July 2009, until 30 June 2012 licences were granted annually under s 68 of the LG Act 1993 for the operation of 68 sites for “long term residence”. On 21 May 2014, Gosford Council granted a new licence for the period from 1 July 2013 until 30 June 2018. (The evidence did not disclose a licence for the period from 1 July 2012 to 30 June 2013 but nothing turns on this.)

Primary Judgment

Common Ground

63. The primary Judge noted that it was common ground that: [16]

• long-term caravan sites were prohibited in Zone 7(c2);

• the sole issue was whether Coastplan “had the benefit of existing use rights such that [its] application can be approved”; and

• the date for identification and characterisation of the lawful use was 5 May 1983 (the date the land was rezoned as 7(c2)).

  16.    Primary Judgment at [2], [7], [26], [27], [35].

64. Coastplan placed no reliance on the 1987 Consent or the licences subsequently granted by Gosford Council. The primary Judge observed that the development consent granted in 2006 (by which his Honour apparently meant the approval under s 68 of the LG Act 1993 to increase the number of long-term caravan sites to 68) and other licences issued under the LG Act were “incapable of retrospectively affecting the characterisation process which … [was] to be undertaken as at 5 May 1983”. [17]

    17. Primary Judgment at [44].

65. Although his Honour did not expressly record the parties’ agreement on the point, it was also common ground that the appeal was to be determined by reference to ss 106-108 of the EPA Act (that is, according to the legislation in force at the date of the hearing in the Land and Environment Court). However, his Honour noted that ss 106-108, except for the numbering, were identical to ss 4.65-4.67 of the EPA Act in force at the date the Primary Judgment was delivered. [18]

    18. Primary Judgment at [9].

Condition (aa): Ambulatory operation

66. The primary Judge addressed Coastplan’s argument that condition (aa) to the 1980 Consent was “ambulatory” in the sense that it required compliance with the Caravan Code in force from time to time. [19] On this argument, condition (aa) ceased to prohibit use of the caravan park for long-term accommodation when the Caravan Code was amended in September 1982 to remove cl A.3 (which prevented a caravan site being used continuously for a period greater than 6 weeks).

    19.    Primary Judgment at [36]-[38].

67. The primary Judge considered that caution should be exercised before giving ambulatory operation to a condition of consent since to do so would create a lack of clarity and certainty. If the condition had an ambulatory operation the content of the condition would change over time and anyone attempting to understand the effect of the condition would have to search extrinsic material. [20] His Honour was also influenced by the fact that condition (aa) required not only compliance with the Caravan Code but “specifically identified a prohibition on long-term caravan sites as part of the Code with which compliance was required”. [21] Accordingly, his Honour rejected Coastplan’s submission.

    20. Primary Judgment at [37], citing Sutherland Shire Council v Benedict Industries Pty Ltd (No 8) [2017] NSWLEC 4 at [359] (Pepper J).

    21. Primary Judgment at [38].

The Consents

68. His Honour next addressed Coastplan’s argument that the 1980 and 1983 Consents should be given a broad meaning encompassing all uses as a caravan park, including long-term accommodation. [22] The primary Judge rejected Coastplan’s submission that the Court should confine itself to the terms of each consent “on its face” and should not take into account the conditions of development consent. His Honour held that the correct approach was to consider:[23]

“the operation of the consent as a whole, read carefully but without the meticulous examination of the activities involved in the use”.

22. Primary Judgment at [46].

23. Primary Judgment at [59].

69. The primary Judge observed that it was not necessary to form a view as to whether the so-called “genus test” applies where an existing use is claimed to flow from a current development consent (as distinct from where the existing use is based simply on actual use of land before the introduction of the planning scheme prohibiting that use). [24] His Honour continued as follows: [25]

    24. Primary Judgment at [61].

    25.    Primary Judgment at [62]-[64], [66]-[69].

“62   Arguably, the conditions of consent are such that the development consents in this case dictate the appropriate level of use such that [Botany Bay City Council v Workmate Abrasives Pty Ltd (2004) 138 LGERA 120] applies to exclude consideration of the genus test. On that view of the case, only use for short-term caravan sites are included in the existing use rights.

63   However, even if the development consent was silent as to use, which I do not consider to be the case, and the genus test did apply, I find that use as a short-term caravan park is a materially different use to a caravan park involving long-term or permanent accommodation. I reach that conclusion for the following reasons.

64   First, I note that the characterisation of the use depends on the purpose of the use …

…

66 … more fundamental to the distinction between short-term and longterm or permanent caravan sites is that the two are relevantly different purposes. I find that use of a site for tourism purposes and use of a site as a primary residence is a key distinction of the kind alluded to by Kitto J in [Shire of Perth v O'Keefe (1964) 110 CLR 529 at 535].

67   Secondly, and to some extent similarly, use for long-term caravan sites is a use that gives rise to different environmental effects and town planning considerations compared to use for short-term caravan sites …. For example, questions that go to the provision of services, access to amenities, parking, and noise are all different between short-term and longterm stays. Indeed, it is perhaps for this reason that the 1980 consent and 1983 consent were stipulated to be for short-term stays only.

68   Ultimately, once it is accepted that the entire consent must be read to govern the existing use, it does not matter whether the restriction on the use arose by way of the development's description or by way of the conditions of consent.

69   I therefore find that Coastplan's existing use rights did not extend to long-term or permanent caravan sites.” (Most citations omitted.)

Submissions

Common ground

70. The appeal was conducted on the same basis as the proceedings in the Land and Environment Court. There was therefore no dispute as to the matters upon which there was agreement before the primary Judge. [26]

    26. See at [63] above.

71. As the amended notice of appeal makes clear, Coastplan’s case on appeal is founded exclusively on s 107(1) of the EPA Act, read with par (b)(i) of the definition of “existing use” in s 106. Coastplan’s contentions assume that an applicant for development consent who relies on an existing use need only satisfy one of the two limbs of the definition in s 106. The Council did not dispute this assumption. Accordingly the issue debated by the parties was the character of the use of the land for which development consent was granted in 1980 and 1983 (that is, prior to 6 May 1983 when use of the land was a caravan park became a prohibited use under IDO 122). [27]

    27. There was no dispute between the parties that Coastplan satisfied subpar (b)(ii) of the definition in s 106: cf Meriton Apartments Pty Ltd v Fairfield City Council [2004] NSWLEC 423 at [24].

Coastplan’s submissions

Ground 1(a)

72. Coastplan submitted that the relevant purpose for which development consent had been granted in 1980 and 1983 was use of the land as a caravan park. IDO 122 at that time permitted use for a caravan park and did not distinguish between use of a caravan park for tourist or temporary accommodation and use for permanent or long-term accommodation. The imposition of conditions in the 1980 and 1983 Consents restricting use of the caravan sites to short-term accommodation did not detract from the grant of approval for the purpose identified in IDO 122 – that is, as a caravan park.

73. Mr Pickles contended that the character of the use for which development consent had been granted generally had to be determined on the “face” of the 1980 and 1983 Consents, without reference to the conditions attached to each Consent. This, so he argued, was consistent with the principle that existing use rights should be construed liberally having regard to the terms of the relevant environmental planning instrument. When asked whether it would make any difference if each Consent stated “on its face” that use of the sites was limited to short-term accommodation, Mr Pickles’ responses were not entirely consistent. Ultimately his position was that it would make no difference but that in this case the 1980 and 1983 Consents, when considered independently of the conditions, granted consent simply for use of the land for the purpose of a caravan park unconstrained by time limits.

74. When pressed, Mr Pickles accepted that there could be two circumstances in which it would be appropriate to have regard to the conditions imposed on a development consent. The first is where reference to the conditions is necessary to understand “what was applied for in the development application and what were the lawful purposes under the planning instrument to which consent could have been granted”. The second is where the condition is necessary in order for the use to be permissible under the relevant EPI. Neither of these circumstances, so Mr Pickles submitted, is present in this case.

Ground 1(b)

75. Mr Pickles submitted that even if the conditions attached to the 1980 and 1983 Consents could be taken into account, the use for which consent was granted in each case was as a caravan park. Mr Pickles made it clear that Coastplan was not relying on the so-called “genus” test referred to in the authorities. Instead Coastplan relied on the terms of the consent determinations. The 1980 Consent simply granted consent for the establishment of a caravan park on the land, while the 1983 Consent approved a development application which sought consent for an additional 33 lots in the caravan park.

76. Mr Pickles contended that the development consents were consistent with the lawful purpose for which land could be developed with consent under IDO 122. That purpose was as a caravan park. In keeping with the principle that existing use rights should be given a broad construction, the 1980 and 1983 Consents should be construed by reference to the permitted purpose which did not distinguish between short-term and long-term use of a caravan park.

77. When asked to identify the error of law committed by the primary Judge, Mr Pickles eschewed a contention that the error was the primary Judge’s failure to characterise the use for which development consent had been granted solely by reference to the purpose permitted under IDO 122. Rather he identified the error as his Honour’s failure, when characterising the use for which development consent had been granted, to have regard to the lawful purpose permitted by IDO 122.

Ground 2

78. Mr Pickles repeated the “ambulatory” argument rejected by the primary Judge. He submitted that condition (aa) to the 1980 Consent should be understood as incorporating the Caravan Code as in force from time to time. Since the Caravan Code was amended in 1982 to remove cl A.3 (which prohibited continuous use of a caravan site for more than six weeks), by 5 May 1983 condition (aa) did not prevent use of caravan sites on the land for long-term accommodation.

Council’s submissions

79. The Council submitted that the Primary Judgment did not disclose any error. Mr Ireland, who appeared with Ms Tringali for the Council, contended that Coastplan’s approach disregarded the difference in purpose between the use of land for short-term or tourist caravan sites and use for permanent residency.

Ground 1(a)

80. Mr Ireland submitted that while it might be appropriate to give a fair and liberal construction to the terms of a development consent, there is no justification for ignoring the conditions of development consent when characterising the existing use. Mr Ireland said that it is impossible to determine the use permitted by a development consent without considering the terms of the consent as a whole, including the conditions of consent. If on a proper construction of either the 1990 or 1983 Consents the sites on the land could not be used for long-term accommodation on 6 May 1983, that could not be the use for which consent was granted. In determining that use, so Mr Ireland argued, it is necessary also to have regard to the lawful purpose for which the land could be used on the relevant date. In this case, on 6 May 1983 it was unlawful to use the caravan sites for permanent accommodation.

Ground 1(b)

81. Mr Ireland’s response to the argument in support of Ground 1(b) was formulated at short notice. He submitted that the primary Judge was aware of the purpose for which development consent could be granted under IDO 122 and took it into account. His Honour characterised the use for which development consent had been granted consistently with the principles laid down in the authorities. In particular, his Honour correctly focussed on the town-planning purpose underlying the conditions of development consent.

Ground 2

82. Mr Ireland essentially adopted the reasoning of the primary Judge to reject Coastplan’s contention that condition (aa) to the 1980 Consent had ambulatory effect.

Reasoning

The relevant law

83. The parties’ argument in this Court proceeded on the common assumption that the relevant law to be applied was that in force either at the date of the hearing in the Land and Environment Court (4 December 2017) or the date of the Primary Judgment (10 April 2018). As has been noted, the only difference between the relevant provisions in force on those two dates is the renumbering of ss 106-108 as ss 4.65-4.67 of the EPA Act.

84. In the course of argument the parties were asked whether the relevant law for determining the extent of “existing use” of the land on 5 May 1983 was to be found in ss 106-108 of the EPA Act or in the legislation as in force on 5 May 1983. The answer given by Mr Pickles and adopted by Mr Ireland was that ss 106-108 of the EPA Act applied by virtue of s 39(2) of the LEC Act. Section 39(2) states that the Land and Environment Court:

“shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.”

85. The answer to the question asked by the Court is not to be found in s 39(2) of the LEC Act, but in transitional provisions enacted when the definition of “existing use" in the EPA Act was amended. The original definition of “existing use” in s 106 of the EPA Act was as follows:

“(a)   the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument having the effect of prohibiting that use; and

(b) in the case of a building, work or land erected, carried out or used in accordance with a consent to which section 99 (1) (a) (ii) applies—the use of that building, work or land for the purpose specified in the development application to which the consent was granted.”

86. Paragraph (b) of the definition was amended by the Environmental Planning and Assessment Amendment Act 1996 (NSW) (1996 Amendment Act) to take its current form. [28] It is convenient to reproduce the current definition here:

“(b)   the use of a building, work or land:

(i)   for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and

…”

28.    See s 3, Sch 10, cl 6.

87. There is nothing in the Explanatory Memorandum or second reading speech that explains the purpose of the amendment. However, it can be seen that “use … for the purpose specified in the development application to which the consent was granted” was removed from par (b). The amended par (b)(i) of the definition refers instead to “use … for which development consent was granted”.

88. Neither party referred to the savings and transitional provisions in the 1996 Amendment Act which included the following:[29]

“Section 106(b), as inserted by the Environmental Planning and Assessment Amendment Act 1996, is taken to have commenced on 1 September 1980 [the date the EPA Act commenced]”.

29. 1996 Amendment Act, Sch 11, cl 12. This transitional provision was incorporated the EPA Act Schedule 6, cl 12. See now Environmental Planning and Assessment (Savings, Transitional and other Provisions) Regulation 2017 (NSW), Schedule 1, cl 12.

89. It follows from this transitional provision that Coastplan’s 2015 DA, insofar as it relied on an existing use of the land as at 6 May 1983, fell to be determined in accordance with the definition of “existing use” in s 106 of the EPA Act as amended in 1996. As has been noted, there has been no material change to s 106 of the EPA Act since 1996. Except for the change of numbering as from 1 March 2018 the relevant provisions were identical on all three dates.

Ground 1(a)

90. Coastplan’s submissions in support of Ground 1(a) started with references to decided cases addressing the concept of “existing use”. Some of those cases, however, were concerned with different provisions than those now found in ss 106 and 107 of the EPA Act. For example, although Shire of Perth v O’Keefe [30] is a leading case on the concept of existing use, it is necessary to bear in mind that it involved the construction of a by-law which applied if, on a particular date, any land was being “lawfully used for a purpose” not permitted by a by-law that came into force on that date. That language is significantly different from the language in par (b)(i) of the definition of “existing use” in s 106 of the EPA Act. [31]

    30. (1964) 110 CLR 529; [1964] HCA 37.

    31. Mr Pickles also referred to North Sydney Council v Boyts Radio & Electrical Pty Ltd (1989) 16 NSWLR 50 (Boyts), a case decided on the definition of “existing use” prior to its amendment in 1996: see at [86] above.

91. It is also necessary to bear in mind that s 106 of the EPA Act defines “existing use” for the purposes of Part 4 Div 10 of the Act. [32] The operative provision is s 107(1) of the EPA Act. In Kelly v The Queen, [33] McHugh J observed that:

“the function of a definition is not to enact substantive law. It is to provide aid in construing the statute. Nothing is more likely to defeat the intention of the legislature than to give a definition a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of a substantive enactment. There is, of course, always a question whether the definition is expressly or impliedly excluded. But once it is clear that the definition applies, the better – I think the only proper – course is to read the words of the definition into the substantive enactment and then construe the substantive enactment – in its extended or confined sense – in its context and bearing in mind its purpose and the mischief that it was designed to overcome. To construe the definition before its text has been inserted into the fabric of the substantive enactment invites error as to the meaning of the substantive enactment.”

32. Now Div 4.11 of the EPA Act.

33. (2004) 218 CLR 216; [2004] HCA 12 at [103]. Although McHugh J was in dissent, these observations have been frequently referred to and applied: see, for example, Australian Securities and Investments Commission v Administrative Appeal Tribunal (2011) 195 FCR 485; [2011] FCAFC 114 at [124]-[125] per curiam; cf Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73; (2018) 357 ALR 55 at [112]-[114] per curiam.

92. If par (b)(i) of the definition of “existing use” (on which Coastplan relies) is read into s 107(1) it reads as follows:

“… nothing in this Act or an environmental planning instrument prevents the continuation of the use of … land for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use”.

93. The critical expression in this formulation is “the use of … land for which development consent was given”. It is that use which can continue notwithstanding that a new EPI prohibits the use. In Abret v Wingecarribee Shire Council [34] Beazley JA pointed out that in planning law use must be for a purpose and that “use” refers to the “physical acts by which the land is made to serve some purpose”. [35] Her Honour also pointed out that uses of different nature can serve the same purpose. Thus “use” and purpose are not necessary co-extensive.

    34. [2011] NSWCA 107; (2011) 180 LGERA 343 (Abret).

    35. Abret at [51] (Campbell JA and Handley AJA agreeing) citing Council of City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493; [1957] HCA 15 at 508 per Kitto J (dissenting as to the result).

94. In the present case it is difficult to see why the relevant inquiry (as to the use of land for which development consent was granted) should be confined to the opening words of a consent determination to the exclusion of the conditions attached to the consent. In 1980 and 1983 Gosford Council had power to grant development consent to a proposal unconditionally or subject to conditions. [36] It can hardly be decisive in answering the question mandated by ss 106 and 107 of the EPA Act that the drafter of the relevant consent determinations chose to impose significant restrictions on the permitted use by way of conditions, rather than in the opening words of the determinations. The conditions may or may not materially affect the character of the use for which development consent was granted and may or may not justify characterising the use more narrowly than the general purpose permitted (with consent) under the EPI. But in characterising the use for which development consent was granted the conditions attached to the 1980 and 1983 Consents cannot simply be put to one side.

    36. See at [46] above.

95. The point can be illustrated by Botany Bay City Council v Parangool Pty Ltd (Parangool),[37] a case cited by Mr Pickles. In August 2002 development consent was granted for “Use of existing warehouse building for the warehousing/storage and distribution of alcoholic goods”. At that time use of land for a warehouse or distribution centre was permissible with consent. In October 2002 the land was rezoned and use as a warehouse or distribution centre became a prohibited use. In 2007 a development application sought approval for “occupation of existing warehouse building for general warehouse use”. The applicant relied on the existing use under the 2002 development consent.

    37. [2009] NSWLEC 198 (Lloyd J).

96. The Land and Environment Court held that the only lawful existing use at October 2002 was that of a warehouse for the distribution of alcoholic goods. Mr Pickles submitted, rather faintly, that Parangool was wrongly decided because the qualification in the grant of consent should have been ignored when determining the use for which development consent was granted. But, so he argued, if the decision was correct the case would have been decided differently if the limitation (use of the warehouse only for distribution of alcoholic goods) had been imposed by way of a condition rather than incorporated in the consent itself. In my view the language of ss 106(b)(i) and 107 of the EPA Act provides no basis for allowing the form of a development consent to prevail over its substance.

97. As has been noted, Mr Pickles acknowledged that it was appropriate to refer to the conditions attached to a development consent in two particular circumstances. However, he did not offer a rationale for confining the circumstances in which reference to the conditions is permissible to these two cases. The conditions attached to a development consent will often be significant when characterising the use of land for which development consent was granted. It follows that the question posed by ss 106(b)(i) and 107 of the EPA Act requires the consent as a whole to be considered, including any conditions limiting the permitted use. [38] Whether the conditions affect the characterisation of the use for which development consent was granted is a separate issue.

    38. Cf MM & SW Enterprises Pty Ltd v Strathfield Council [2010] NSWLEC 8; 172 LGERA 125 at [86], [92] (Pepper J); Jojeni Investments Pty Ltd v Mosman Municipal Council (2015) 89 NSWLR 760; [2015] NSWCA 147 (Jojeni) at [59], [60], [71] (Leeming JA, Macfarlan and Gleeson JJA agreeing).

Ground 1(b)

98. Paragraph (a) of the definition of “existing use” in s 106 of the EPA Act refers to the use of land “for a lawful purpose” immediately before a particular date. This language is apt to apply in circumstances where an applicant relies on actual use of land during a period when no consent was required or no EPI was in force, as occurred in cases such as Boyts and Shire of Perth v O’Keefe. Paragraph (b)(i) of the definition refers to “the use of … land …” for which development consent was granted before a particular date. This language is apt to refer to a case where an applicant relies on the use for which development consent was granted but does not necessarily rely on the actual use of the land before the relevant date.

99. Paragraph (a) of the definition clearly does not equate use of land with the lawful purpose for which it is being used. As Beazley JA pointed out in Abret, [39] the two concepts are not co-extensive (although in a particular case they could be). Paragraph (b)(i) of the definition does not refer to “purpose” at all. There is no textual basis for construing par (b)(i) to mean that the use for which development consent was granted must be co-extensive with the purpose for which land may be used under the EPI.

    39. See at [93] above.

100. Coastplan’s argument tended to elide the concepts of “use” and “purpose”. Most of the authorities Mr Pickles cited in argument concerned legislation that defined “existing use” by reference to use of land for a purpose. But even these authorities have not regarded use of land as necessarily co-extensive with the purpose for which land may be used under the EPI.

101. In the leading case of Shire of Perth v O’Keefe, the High Court was concerned with a by-law (by-law 372) which applied if, on the date new by-laws came into effect, the land was being “lawfully used for a purpose … not permitted” by the new by-laws. By-law 372 provided in such circumstances that the land could continue to be used for that purpose. The issue before the Court was whether the existing use of premises for pottery making should be characterised as use for the purpose of “light industry”. If so, the land could be used after the new by-laws came into force for light industrial purposes other than pottery making.

102. In addressing this question Kitto J made the following oft-cited observations: [40]

“it is necessary to observe that the ‘existing use’ by-laws take two steps which should be kept distinct from one another. First it is required that a purpose be identified as the end for which it can be seen that the premises are being used at the date of gazettal of the by-laws. Then the provision is made that the land may continue to be used for that purpose: not that the precise manner of use for that purpose may alone continue but that use generally for that purpose may continue. The application of the by-law in a particular case has therefore not to be approached through a meticulous examination of the details of processes or activities, or through a precise cataloguing of individual items of goods dealt in, but by asking what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date.”

40.    Shire of Perth v O’Keefe at 535 (Owen J agreeing).

103. Despite the apparent breadth of this language, Kitto J held that use of the premises for pottery making was not for the purpose of light industry generally. Although the new by-laws created light industrial zones (among others) and made no reference to pottery making, the purpose for which the premises had been used had to be assessed “in a town-planning context”. On that basis, the purpose for which the premises were being used at the relevant date was “pottery making”. Use of the premises for making anything other than pottery “would be, in a substantial and relevant sense, a use for a different purpose”. [41]

     41.    Shire of Perth v O’Keefe at 535.

104. For the reasons given earlier, determining whether the 1980 and 1983 Consents granted development consent for use as a caravan park for both long-term and short-term occupation (as Coastplan contends) requires consideration of the conditions to which the Consents were subject. I accept that in undertaking this task the Court should avoid characterising the use for which development consent was granted by reference to an overly meticulous analysis of the terms of the consent, including the conditions. The primary consideration is the language of the statute but the language should be applied having regard to the rationale underlying existing use provisions.

105. To adapt an observation made by McHugh J in a case involving ss 106 and 107 of the EPA Act in their original form, the rationale for existing use provisions is that it is unjust for an EPI to deprive a landowner of the right to continue the use of land for which development consent has been granted. [42] As his Honour observed, albeit in a somewhat different statutory context, courts should not characterise an existing use so narrowly that “natural changes in the method of using the land” will render the existing use right valueless. Equally the existing use should not be characterised so widely that the land can be used for a (now) prohibited purpose in a manner that was not part of the use for which development consent was granted.

     42. Royal Agricultural Society v Sydney City Council (1987) 61 LGRA 305 at 309 (Hope and Samuels JJA agreeing).

106. As the authorities recognise, the characterisation of the use for which development consent was granted generally will involve matters of fact and degree. Some conditions of development consent will have very little, if any, bearing on the process of characterisation. To take a rather obvious example given by Mr Pickles, it would be wrong to characterise the use for which the 1980 Consent was granted as a caravan park with a children’s playground merely because a condition of consent required the installation and maintenance of a playground. However, the conditions imposed on the 1980 and 1983 Consents fall into a different category. The wording of the conditions is not identical, but in substance both conditions expressly prohibited the use of the land as a caravan park for long-term occupation. That use would have been authorised by the grant of development consent in each case had the condition not been imposed.

103. The primary Judge found that use of the caravan sites for long-term occupation gave rise to different environmental effects and town planning considerations than use of the sites for tourist or short-term accommodation. [43] The finding has not been challenged and indeed could not have been challenged in this appeal unless it raised a question of law. In any event, there was material before the primary Judge indicating that in the early 1980s long-term and short-term occupation of caravan sites presented different environmental planning issues. That material included not only the Caravan Code but the regime created by s 228A of the LG Act 1919. [44] The doubts expressed by the Deputy Town Clerk in 1982 as to the utility of cl A.3 of the Caravan Code do not detract from the primary Judge’s finding.

     43. Primary Judgment at [67].

     44. See at [49]-[50] above.

104. Both conditions of development consent in the present case were imposed to ensure that the use of the land as a caravan park was limited so as to conform to environmental planning objectives. The consent authority proceeded on the basis that a caravan park providing sites for long-term occupation would generate planning problems beyond those presented by caravan sites used for tourist or short-term accommodation. As a matter of the “ordinary use of language” and as a matter of what is “likely to appeal to practical minds as appropriate in the application of town-planning legislation”[45] , use of the land as a caravan park for long-term occupation is different from the use for which Gosford Council granted development consent. The proper characterisation of the use for which development consent was granted in 1980 and 1983 is use as a caravan park for short-term occupation.

     45. Shire of Perth v O’Keefe at 535; Jojeni at [21].

105. Mr Pickles criticised the primary Judge for failing to refer specifically to the purpose for which the land could be used under IDO 122 prior to 6 March 1983 – that is, as a caravan park. I accept that the purpose for which land can be used under an EPI may be relevant to the characterisation of the use for which development consent was granted. But this was not an argument put to the primary Judge in the terms advanced by Mr Pickles in this Court. The primary Judge accurately summarised the argument put on behalf of Coastplan. This was to the effect that the conditions on the 1980 and 1983 Consents merely regulated the manner of use of the caravan park and that the existing use should be characterised as a caravan park simpliciter, consistently with the terms of IDO 122 at the time. [46]

     46.    Primary Judgment at [46], [47], [50].

106. The primary Judge was clearly aware that IDO 122, at the relevant times, permitted use of the land for the purpose of a caravan park without restrictions as to the length of occupation. His Honour took the terms of IDO 122 into account in concluding that Coastplan’s “existing use rights” did not extend to use of the land for long-term or permanent occupation.”[47] As has been explained, the fact that IDO 122 permitted the consent authority to grant consent to use of the land for the purpose of a caravan park with no time restrictions on occupation did not require his Honour to reach any other conclusion.

     47. Primary Judgment at [69].

107. There is nothing in the authorities to which Mr Pickles referred that is inconsistent with the conclusions reached above. In Jojeni, for example, it was held that the existing use should be characterised as use of a building containing flats rather than use of the building for two flats only (the actual use when, in 1937, it became unlawful for the council to approve residential flat buildings). In that case the building had been used for residential purposes for many years prior to 1937 and no consent for such use had been required. Leeming JA analysed the case by reference to s 106(a) of the EPA Act, not s 106(b). [48] In doing so, his Honour emphasised that he was not dealing with a case where the lawful use was derived from a consent or approval (unlike Parangool). [49] His Honour expressed reservations about observations in Botany Bay City Council v Workmate Abrasives Pty Ltd [50] suggesting that a broad approach to characterisation does not apply where the existing use is claimed to flow from a subsisting development consent. But Leeming JA addressed his criticism to cases where the development consent is silent as to use and purpose. [51] That is not the present case.

     48. Jojeni at [70].

     49. Jojeni at [71].

     50. (2004) 138 LGERA 120 (NSWCA).

     51. Jojeni at [73].

108. Boyts, another case referred to by Mr Pickles, was concerned with s 106 of the EPA Act prior to the 1996 amendments. This Court held that the existing use at the relevant date (1963) was as a warehouse where goods were stored, and was not limited to a warehouse storing goods for sale by wholesale. The case was complicated by the inability of the parties to locate the document granting consent to use of the premises as a warehouse. In the absence of original evidence, the decision turned on the characterisation of “what the Council approved many years ago [in 1951] without qualification or specification as to particular goods”. [52] Moreover, categorisation as a “warehouse” aptly described the uses to which the premises had been put over a period of 40 years. Had there been evidence that the Council imposed qualifications or specifications on the consent the decision may well have been different.

     52.    Boyts at 65.

109. For these reasons, subject to dealing with Ground 2 in the amended notice of appeal, the primary Judge did not err in concluding that ss 106(b)(i) and 107 of the EPA Act did not entitle Coastplan to use the land as a caravan park for permanent or long-term accommodation.

Ground 2

114. Coastplan’s contention that condition (aa) attached to the 1980 Consent had an ambulatory operation, if accepted, would raise issues not explored in the parties’ arguments. The 1980 Consent granted approval for the establishment of a caravan park in accordance with the accompanying plans, which provided for 36 caravan sites. The 1983 Consent granted approval for the construction of an additional 33 sites. The 1983 Consent included condition (i) which expressly prohibited any site being used continuously for more than six weeks without any reference to the Caravan Code.

115. If, as Coastplan submitted, the amendment to the Council’s Caravan Code in September 1982 meant that thereafter condition (aa) to the 1980 Consent did not prevent use of the 36 sites for permanent occupation, this conclusion would not affect the operation of condition (i) to the 1983 Consent. Condition (i) would have remained in force on 6 May 1983. If Coastplan’s ambulatory argument were to be accepted the question of existing use would presumably have to be determined by reference to different conditions applying to the two sets of caravan sites on the land. However, the problem does not arise because Coastplan’s argument should not be accepted.

116. The general principles applying to the incorporation of documents in development consents have been summarised as follows:[53]

“66   The general principle is that documents accompanying a development application are not to be taken as incorporated into the consent unless the incorporation is express or by necessary implication … The principle reflects the nature of a development consent, which enures for the benefit of subsequent occupiers and owners of the land and thus has an ‘in rem’ quality … It would create obvious difficulties if subsequent owners or occupiers had to search a series of documents to ascertain the terms or proper construction of a development consent …

67   A mere reference in a consent to another document, such as the development application, will not usually be sufficient to incorporate that document into the consent … But if the development consent expressly incorporates another document or part of it, the terms of that document will be incorporated into the consent …” (Citations omitted.)

53. Bardsley-Smith v Penrith City Council [2013] NSWCA 200; 195 LGERA 34 at [66]-[67] (Sackville AJA, McColl and Barrett AJA agreeing).

117. It follows that it is open to a consent authority to incorporate in a development consent requirements specified in another document provided that the incorporation is express or necessarily implied. It was therefore open to the Council expressly to incorporate in the 1980 Consent the requirements of the Council’s Caravan Code. The language used in condition (aa) to the 1980 Consent was apt to achieve that result.

118. It may also be open to a consent authority to incorporate standards or requirements that vary in their application to the subject land from time to time. However, as Pepper J remarked in Sutherland Shire Council v Benedict Industries Pty Ltd (No 4),[54] the incorporation of “ambulatory” requirements is apt to produce a lack of clarity and certainty because of the need to trace amendments to the incorporated document. For that reason, a court might well be reluctant to interpret the incorporation of an external set of standards into a development consent as referring to the standards in force from time to time.

     54. [2017] NSWLEC 4 at [359].

119. It is not necessary to decide whether condition (aa) to the 1980 Consent should be construed as referring to the Caravan Code in force at the date of the Consent or in force from time to time. Even if the latter interpretation is correct, condition (aa) did not merely incorporate the provisions of the Caravan Code. It expressly stated that “in particular, no site may be used for permanent occupation”. If the intention was simply to incorporate the requirements of the Caravan Code there was no need to add the express prohibition on using the sites for permanent occupation. The emphatic prohibition makes it clear that regardless of any change to the Caravan Code from time to time, the development consent was subject to the prohibition on permanent occupation of the caravan sites.

120. This construction is supported by the differences between the terms of cl A.3 of the Caravan Code, as in force in 1980, and the language of condition (aa). Clause A.3 prohibited any site being used continuously for more than six weeks. Condition (aa) did not simply repeat the language of cl A.3 but prohibited the use of any site for “permanent occupation”. The prohibition in condition (aa) was less sweeping than that in cl A.3 of the Caravan Code: a site may be occupied for a period considerably longer than six weeks yet not be permanently occupied. Thus the operation of each provision was not co-extensive.

121. For these reasons the repeal of cl A.3 of the Caravan Code in 1982 did not remove or affect the operation of condition (aa) to the extent that it prohibited the use of caravan sites for permanent occupation.

Orders

122. The appeal should be dismissed with costs.

**********

Endnotes

Decision last updated: 28 November 2018