Development Assessment Commission v Lawry - [2011] SASCFC 80

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
DEVELOPMENT ASSESSMENT COMMISSION v LAWRY & ORS
[2011] SASCFC 80
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Vanstone and The Honourable Justice Peek)
10 August 2011
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONTROL OF PARTICULAR MATTERS - COMMERCIAL USES - TOURISM
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONSENTS, APPROVALS AND PERMITS - SUBDIVISION APPROVALS
ENVIRONMENT AND PLANNING - BUILDING CONTROL - COUNCIL CONSENT AND APPROVAL - CONSENTS, APPROVALS AND PERMITS - CONDITIONS
Application for division of land under the Community Titles Act 1996 (SA) - Development Plan consent was refused by the respondent - the appellant appealed to the Environment, Resources and Development (ERD) Court which granted Development Plan consent subject to a number of conditions - the respondent appealed to a single judge of the Supreme Court of South Australia who allowed the appeal and set aside the orders of the ERD Court - the appellant appealed to the Full Court of the Supreme Court of South Australia against that decision.
In 1984 the South Australian Planning Commission gave approval for use as a "caravan park" - proposed division by the appellant would create a number of primary community lots within the existing caravan park capable of individual ownership - as "development" under s 4(1) of the Development Act 1993 (SA) includes "the division of an allotment" the proposed division required development approval - a consequence of fragmentation of ownership could be that the caravan park will not provide suitable accommodation for tourists if lots were occupied predominantly by their owners - whether in assessing the proposed division of land against the Development Plan one should have regard to a use of the land that might be facilitated by the proposed division and creation of community lots - whether such an assessment of the proposed division of land against the Development Plan leads to the conclusion that approval should be refused - whether the proposed division does not comply with the provisions of the CTA and for that reason should be refused approval - whether certain conditions imposed by the ERD Court when it approved the proposed division are valid or appropriate conditions.
Held: appeal dismissed.
Community titles Act 1996 (SA) s 3(1), s 6, s 7, s 10, s 11(3), s 12, s 14, s 14(3), s 14(4), s 14(4)(d), s 14(5a), s 16, s 22(1), s 22(2), s 30, s 30(4), s 34, s 34(2)(d), s 37, s 37(1), s 37(1)(a), s 37(1)(c), s 37(1)(h), s 41, s 43(1), s 75; Development Act 1993 (SA) s 4(1), s 33(1)(a), s 33(1)(d); Strata Titles Act 1988 (SA); Real Property Act 1886 (SA), referred to.
Lawry & Anor v Development Assessment Commission [2010] SAERDC 30; Development Assessment Commission v Lawry & Anor [2011] SASC 14; Hall & Anor v City of Burnside and City Apartments Pty Ltd [2005] SASC 343, (2005) 95 SASR 579; Wehbe v Pittwater Council [2007] NSWLEC 827, (2007) 156 LGERA 446; Broker Pty Ltd v Shoalhaven City Council [2008] NSWCA 311, (2008) 164 LGERA 161, considered.

DEVELOPMENT ASSESSMENT COMMISSION v LAWRY & ORS
[2011] SASCFC 80
Full Court: Doyle CJ, Vanstone and Peek JJ

DOYLE CJ: This appeal relates to an application for the division of land under the Community Titles Act 1996 (SA) (the CTA).
The land in question is adjacent to the River Murray. In 1984 the South Australian Planning Commission gave approval, under earlier planning legislation, for the use of the land as a “caravan park”. Although the caravan park has changed over time, it continues to operate under that planning approval.
The proposed division under the CTA will create a substantial number of “primary community lots” on the site of the existing caravan park: s 7 of the CTA. Those primary lots will be capable of individual ownership. The division will also create a development lot, capable of division at a later stage. The balance of the existing caravan park will be common property comprising access roads, infrastructure of various types and facilities appropriate for a caravan park adjacent to a river.
Most of the primary community lots are the site of an existing cabin or of a caravan.
The effect of the proposed division is that existing cabins and caravans in the caravan park will be located on separate lots to be owned by individual persons or corporations. At present the caravan park is owned and operated by a single owner.
The division of land into lots does not involve a change of use. But because “development” is defined by s 4(1) of the Development Act 1993 (SA) (the Development Act) to include “the division of an allotment”, the proposed development requires approval under the Development Act. That means that the proposed development had to be assessed against the relevant Development Plan: s 33(1)(a) of the Development Act. The relevant Development Plan is the “Mid Murray Council Development Plan” (the Development Plan).
By creating community lots as a site for each of the existing cabins and caravans in the caravan park, the proposal would bring about a regime under which the individual owners of cabins and caravans will acquire, or will be able to acquire, individual titles to the site of existing cabins and caravans. They will be able to sell or lease or let their sites, subject to the by-laws of the scheme. I will return to the topic of by‑laws.
A consequence of the creation of individual allotments and of the fragmentation of ownership, might be that the caravan park will provide very little accommodation for casual visitors. This might occur because cabins and caravans will be occupied exclusively or predominantly by their owners. The individual ownership of a site might encourage the owner to improve the relevant cabin, or the facilities of the relevant caravan, and might make the owner less likely to make the cabin or caravan available for casual hire.
At present nearly all of the caravan sites are occupied by caravans that are more or less permanent. The caravans are owned by individuals, not by the operator of the caravan park. The owners of the caravans pay an annual fee for use of the caravan site. Nearly all of the cabins have been sold to individuals, who also pay an annual fee for the occupation of the cabin site. There is only a small number of cabins and caravan sites available for casual hire.
It follows that the suggested change in the manner in which the caravan park is used will depend on the extent to which owners of caravans and owners of cabins make their property available for casual hire.
I should point out that the case was conducted before the ERD Court, on the basis that the ERD Court need not enquire into the extent to which the caravan park was available for use by casual visitors, and was used by casual visitors. Neither party asked the court to enquire into the issue of whether the current use of the caravan park was consistent with the approved use as “caravan park”. Before the ERD Court the parties proceeded on the basis that any suggested change of use from “caravan park” to residential use, or any unlawful change of use, was a matter for enforcement action.
Nevertheless, before the Judge of this Court the respondent argued that if the proposed division were approved, that would encourage exclusive use of cabins and caravans by the owners of the relevant community lots. The consequence of this was said to be that the land would no longer be used as a caravan park, because it would be used predominantly for owner occupation, and not for casual accommodation. That was then said to be a basis for refusing consent, having regard to provisions in the Development Plan relating to “recreation and tourist facilities” and on the other hand dwellings and shack sites.
There was no suggestion on either side that the approval of the division would be an approval for any such contemplated change of use. In fact, the applicant and appellant before this Court argues that if a change of use has occurred, and the use of the land is no longer “caravan park” that raises an issue of enforcement only. Likewise, even if a change of use in the future can be anticipated, that also raises an issue of enforcement. The argument for the appellant is that it is not a reason, having regard to the provisions of the Development Plan, to refuse approval for division of the land.
So the first issue on appeal is whether, in assessing the proposed division of land against the Development Plan, one should have regard to a use of the land that might be facilitated by the proposed division and creation of community lots. This fell for decision without the Court knowing in detail how the land is being used at present, and whether that use can be described as use as a “caravan park”.
The second issue is whether such an assessment of the proposed division of land against the Development Plan leads to the conclusion that approval should be refused.
These issues are crystallised in the following passages from the Judge’s reasons: Development Assessment Commission v Lawry & Anor [2011] SASC 14:
[21]However, Development Approval enables the owner to sell and transfer all the allotments thus created, which was not possible before. It enables a number of individual owners to undertake permanent and exclusive use and occupation of the new allotments, which was not possible before the subdivision approval. Subdivision of land may or may not, according to the circumstances, necessarily imply a probable change of use of the land. A change of use of the land also constitutes development for which further Development Approval may be necessary. For example, subdivision of broad-acre farming land into allotments suitable for detached housing requires approval under the Development Act. Such approval in itself may not effect any change of use of the land. Subsequent physical activity on an allotment forming part of the subdivision may well constitute a change of use, in the example given, for use as a residence.
[22]Such a probable change of use may therefore need to be assessed in accordance with the requirements of the Act as part of the process of deciding whether the subdivision should be approved. Depending on the extent of the existing development on the subject land, the subdivision itself may involve an immediate change of use from that which is permitted at the time of the application of the subdivision approval. In that event, the change of use will have to be assessed against the requirements of the Act as part of the process of determining the subdivision application …
[23]One of the reasons for including subdivision of land in the definition of “development” is that, in many cases, it will involve an ultimate change of use of the land. One of the matters that will need to be examined on any application for subdivision approval is the nature and extent of any actual or likely change of use that will be effected by the subdivision.
Because the proposal was for a division of land under the CTA, the proposal also had to be assessed against certain conditions set out in s 33(1)(d) of the Development Act. These conditions are specific to the division of land under the CTA or under the Strata Titles Act 1988 (SA).
Before the Environment, Resources and Development Court (the ERD Court) and before the Judge of this Court whose decision is under appeal, the respondent argued that the proposal did not comply with the CTA and should not be given Development Plan consent because the proposed division could not be given lawful effect under the CTA.
A further issue for consideration on appeal is whether, as the respondent contends, the proposed division does not comply with the provisions of the CTA, and for that reason should be refused approval.
A final issue is whether certain conditions imposed by the ERD Court when it approved the proposed division, are valid or appropriate conditions.
The Land
The land in question is near Swan Reach on the River Murray. The land comprises 7.63 hectares with a river frontage of about 200 metres.
The land has sites for 37 cabins and 50 caravans. Of the cabins, 32 have been sold to individuals who pay an annual fee to the caravan park owner. The other five cabins belong to the camp site owner who makes them available for casual hiring. All 50 of the caravans are owned by individuals who pay an annual fee for the use of their site. There are 18 vacant caravan sites available for hire, but according to the Judge they are not often used. The Judge said that there was no evidence suggesting that individual cabin or caravan owners made their facilities available for casual hire, although there was nothing to prevent them from doing so.
The camp site includes an ablutions building, a caretaker’s residence and other facilities that one would expect at a caravan park adjacent to a river.
As to the facilities in the cabins and caravans, the Judge noted:
[10]All the cabins have showers, toilet, cooking and washing up facilities and have connections for LP gas, supplied by the cabin owners, for heating and cooking purposes. At least one cabin, and possibly more, has clothes washing facilities. Approximately one third of the caravans are equipped with toilets and showers.
The surrounding land is used for grazing, viticulture and tourist accommodation.
The Development Application
The Judge summarised the application concisely, and it suffices to repeat that summary:
[14]The development application, as amended in final form on 14 August 2009, sought the creation of 110 primary community lots, one development lot and common property in accordance with the existing improvements on the land. Proposed lots 1-89 were to contain the existing sites for cabins or caravans. There was to be one unnumbered lot comprising three pieces. Piece 90 was to cover the existing manager’s residence and the associated kiosk/shop and fuel bowser. Piece 91 was to contain 14 existing powered sites, nine of which presently contain caravans. These 14 sites are below the 1956 flood level. Piece 92 was to comprise an existing storage shed for boats but which encroaches on a road reserve boundary. The encroachment is not relevant to the disposal of the appeal.
[15]Lots 93-112 were to comprise storage bays within existing sheds used to store boats, vehicles and/or caravans. Lot 201 was designated a future development lot. It currently contains another boat storage shed which also partly straddles the road reserve boundary.
[16]The balance of the land was to be common property comprising access roads, service infrastructure, the ablution block, the jetty and boat ramp, camping area, playground and water pump. It was to include an existing gravity feed water supply tank and proposed new effluent treatment plant, together with an area of open and steeper land to the west and north-west at the upper levels of the escarpment.
[17]The size and dimensions of the proposed allotments varies according to the buildings and improvements they contain and their intended use. The boat and storage space (lots 93-112) each have an area of 30m2. Lots 1-89 vary in size according to the size of their existing associated cabin or caravan. They range in area from 69m2 to 652m2. The common property has a total area of 5.46 hectares and is a substantial proportion of the whole.
Division of Land under the CTA
The CTA provides for the division of land into lots: s 6. A division under the CTA is one that implements a scheme embodied in a scheme description: s 30. The purpose of a scheme description is set out in s 11(3):
11—The scheme description
…
(3)Its purpose is to provide a brief description of the nature of the scheme to which the relevant development authority has given its consent for the benefit of persons considering purchasing or entering into any other dealing with a lot created by the scheme.
…
The nature of a scheme description is indicated by the following provisions:
30—Scheme description
(1)     A scheme description must—
(a)     be in a form approved by the Registrar-General; and
(b)     identify the community parcel and the lots and common property into which the parcel is to be divided (this may be done by reference to the plan of community division with which the description will be filed); and
(c)     describe the purpose or purposes for which the lots and common property may be used; and
(d)     specify the standard of buildings and other improvements (if any) to be, or which may be, erected on or made to the lots or common property; and
(e)     if the scheme is to be completed in stages—
(i)identify the part or parts of the community parcel (which may, in the case of a strata scheme, include a stratum or strata of space not defined by a building or other monument) to be developed in a subsequent stage or subsequent stages; and
(ii)provide a brief description of the nature and scope of the development to be undertaken in respect of each stage; and
(iii)state the time expected for the completion of each stage or, if it is not possible to estimate a time for completion, explain briefly why it is not possible to do so; and
(f)     if the owner or owners of one or more of the community lots is to be under an obligation to develop the lot—include a brief description of the nature and scope of that development and the time for its completion or, if it is not possible to estimate a time for completion, explain briefly why it is not possible to do so; and
(g)     if the developer is to make improvements to the common property or undertake any other development work on the common property—include a brief description of the nature and scope of those improvements or that work and the time expected for their completion or, if it is not possible to estimate a time for completion, explain briefly why it is not possible to do so; and
(h) if the division or other development of the land pursuant to the scheme is subject to conditions imposed by the relevant development authority when granting its consent or imposed by the Development Act 1993 or by regulations under that Act—set out those conditions in full; and
(i)    set out any other important features of the scheme; and
(ia)    be endorsed with a certificate in the form prescribed by regulation from the person who prepared the scheme description certifying that the scheme description has been correctly prepared in accordance with this Act; and
(j)    include any other information required by the regulations.
…
(3)A scheme description should be written as clearly as possible and should not include any unnecessary detail.
(4)Before endorsing a scheme description, the relevant development authority may require modifications to it—
(a)     to add any information that is necessary or desirable in the opinion of the development authority; or
(b)     to clarify any part of the description; or
(c)     to remove any unnecessary detail.
A scheme description is implemented through by‑laws prepared by or for the developer (the owner who proposes the division of land). The general purpose of by‑laws appears from s 12, which provides as follows:
12—By-laws
(1)By-laws may be used to regulate—
(a)     the use and enjoyment of the common property; and
(b)     the purpose or purposes for which community lots may be used; and
(c)     the design, construction and appearance of buildings on the common property and the community lots and the landscaping of community lots.
(2)The first by-laws are lodged with the application for division and may be varied from time to time by special resolution1 of the community corporation.
The main requirements in relation to the by‑laws appear from s 34 which relevantly provides:
34—By-laws
(1)The first by-laws of a community scheme are the by-laws filed with the community plan by the Registrar-General when depositing the plan in the Lands Titles Registration Office.
(2)The by-laws of a community scheme must—
(a)     be in a form approved by the Registrar-General; and
(b)     provide for the administration, management and control of the common property; and
(c)     regulate the use and enjoyment of the common property; and
(d)     regulate the use and enjoyment of the community lots to the extent necessary to give effect to the scheme description; and
(e)     be endorsed with a certificate, in the form prescribed by regulation, from the person who prepared the by laws certifying that the by laws have been correctly prepared in accordance with this Act.
(3)A by-law may also—
(a)     regulate—
(i)the position, design, dimensions, methods and materials of construction and external appearance of buildings or other improvements on community lots; or
(ii)the maintenance and repair of buildings or other improvements on community lots; or
(iii)landscaping, including the establishment, care and maintenance of lawns, gardens and other areas on community lots; or
(b)     impose requirements or restrictions relating to the appearance of community lots or buildings or other improvements situated on community lots; or
(c)     regulate the use and enjoyment of community lots in order to prevent interference with the use and enjoyment of other lots; or
(d)     regulate such other matters as are permitted by this Act to be regulated by by-laws; or
(e)     impose a penalty, not exceeding $500, for contravention of, or failure to comply with, a by-law.
(4)A by-law may confer discretionary powers on the community corporation or any other person.
(5)A by-law may apply to a particular lot or lots, to a class or classes of lots, or to lots generally.
…
Section 37 is relevant to this appeal. It provides:
37—Restrictions on the making of by-laws
(1)Subject to subsection (2), a by-law cannot—
(a)     prohibit or restrict the transfer, transmission, leasing (including the granting of a right of occupation) or mortgaging of, or other dealing with, a lot; or
(b)     impose a monetary obligation on the owner or occupier of a lot except where the by-law provides for the exclusive use of part of the common property; or
(c)     prevent access by the owner or occupier or other person to a lot; or
(d)     prevent an occupier of a lot who suffers from a disability from keeping a dog on the lot or restrict the use of a dog by the occupier if the dog is trained to assist the occupier in respect of that disability; or
(e)     prevent a visitor to the community parcel who suffers from a disability from using a dog trained to assist the visitor in respect of the disability.
(2)A by-law may prohibit or restrict the owner of a lot from leasing or granting rights of occupation in respect of the lot for valuable consideration for a period of less than two months.

Section 41 also requires consideration. It relevantly provides:
41—Invalidity of by-laws
(1)Subject to this section, by-laws are invalid to the extent to which they are inconsistent with—
(a) this Act or any other Act or subordinate legislation made under this or any other Act; or
(b) the scheme description filed with the community plan;
…
By‑laws will bind the community corporation, the owners and occupiers of lots under the scheme and persons who enter the land the subject of the scheme: s 43(1). The land comprising the scheme is administered by a community corporation, the members of which are the owners of the community lots: s 10. The functions and operation of a community corporation are regulated in some detail by the CTA: see s 75.
The division of land under the CTA requires an application to be made to the Registrar‑General, appointed under the Real Property Act 1886 (SA). The requirements for an application are set out in s 14 of the CTA and relevantly they are as follows:
14—Application
…
(3)The application must be in a form approved by the Registrar-General and must—
(a)     include the names and addresses of the first owners of the lots and must specify the lot or lots to be owned by each of them; and
(b)     include the address of the corporation that will be established on deposit of the plan of community division; and
(c)     include such other information as the Registrar-General requires.
(4)The application must be accompanied by—
(a)     the fee prescribed by regulation; and
(b)     the plan of community division; and
(c)     the duplicate certificate of title for the land to be divided; and
(d)     the scheme description endorsed by the relevant development authority (a scheme description is not required for certain small schemes—see section 15); and
(f)     the first by-laws of the scheme; and
…
As can be seen, a scheme description must be endorsed by “the relevant development authority”: s 14(4)(d). That term is defined in s 3(1) as follows:
relevant development authority in relation to the division or other development of land means the person or body authorised by the Development Act 1993 to consent to, or approve of, the division or other development of the land or to give any other development authorisation under that Act in relation to the division or other development of the land.
In the present case the relevant development authority is the Development Assessment Commission, not the ERD Court: see Hall and Another v City of Burnside and City Apartments Pty Ltd [2005] SASC 343; (2005) 92 SASR 579 at [53]. The endorsement by the Development Assessment Commission must be obtained before the application is made to the Registrar‑General under the CTA. But the endorsement would be sought after Development Plan consent is obtained.
The function of the Registrar‑General is indicated by s 22(1) which provides as follows:
22—Deposit of community plan
(1)Where—
(a)     application is made for the division of land by a community plan in accordance with this Act; and
(b)     the requirements made by or under this Act in relation to the application have been satisfied; and
(c)     the plan conforms with the requirements of this Act,
the Registrar-General must deposit the plan in the Lands Titles Registration Office and assign a number to it.
Some duties or requirements are imposed on the Registrar‑General by other provisions, for example s 14(5a) and s 16. The requirements “made by or under this Act in relation to the application” appear to be those set out in s 14(3) and s 14(4).
It is unclear to what extent the compliance of the scheme description with s 30 is a matter for the Registrar‑General and to what extent it is a matter for the relevant development authority. The relevant planning authority that is asked to endorse the scheme description must at least be meant to consider whether the scheme description complies with s 11(3) (set out above). Section 30(4) (above) supports that conclusion. But subject to that, the division of responsibility under s 30 as between the endorser and the Registrar-General is unclear and was not dealt with in any detail in submissions. It is not necessary to decide this question here. It is unlikely that the Registrar‑General is expected to cover the same ground as the relevant development authority, but it may be that there are aspects of s 30 which the Registrar‑General is required to consider. It is unlikely that the Registrar‑General is expected to decide on the efficacy of the by‑laws, but again it remains unclear how far the Registrar-General must go in examining the by‑laws against the requirements of s 34 and other provisions relating to by-laws. For example, s 37 of the CTA set out above, might be something that the Registrar-General is intended to consider.
It is not necessary in this case to decide any of these matters.
A scheme comes into force when the Registrar-General, having done what the CTA requires of him, deposits the community plan in the Lands Titles Registration Office under s 22(1). The Registrar-General must also file the scheme description and the proposed by laws: s 22(2).
I understand that in the present case no application has been made to the Registrar-General as yet. But the material before the ERD Court included the proposed scheme description. The scheme provided that proposed lots 1-89 (the sites of the cabins and caravans) “shall be solely used for tourist/holiday accommodation purposes”. The scheme description included a definition of “tourist/holiday accommodation” as follows:
“Tourist/holiday accommodation” means the non-permanent occupation of a Community Lot by a Lot Owner whereby any single period of occupation must not exceed four (4) weeks, and the rental of a Community Lot to any person or persons by a Lot Owner or the Community Corporation or any manager or operator appointed to operate a tourist accommodation business within the Community Parcel for a single period of time which does not exceed two (2) weeks.
In its decision, the ERD Court proposed that the following words be added to this definition:
… and does not include a place of permanent or regular abode by any person (including the Owner of the Land) nor does it include a dwelling as that term is defined under Schedule No 1 of the Development Regulations 2008.
This part of the scheme description is central to the scheme.
Previous Decisions
Application for the grant of Development Plan consent was first made to the DAC, which refused its consent. Its reasons were that the relevant part of the Development Plan did not “support the creation of separate allotments over buildings and structures established for temporary tourism accommodation in the form of a caravan park”. It also said that the proposal created “a land division lay out and security of tenure envisaged for the Shack Settlement Policy Area not the Recreation and Tourism Policy Area”. (The site is in the Recreation and Tourism Policy Area.) The appellant appealed to the ERD Court which granted Development Plan consent, subject to a number of conditions. The Commissioner who decided the case noted that the division did not involve a change of use of the land and found that the relevant provisions of the Development Plan supported tourist accommodation, which by implication he treated as the use that was being made of the site and would be made of the site: Lawry & Anor v Development Assessment Commission [2010] SAERDC 30 at [73]. He added that he could understand a concern that the division “could give rise to a greater likelihood of increased permanency of occupation of cabins and caravans”, but said that the evidence did not establish that and that “it could be a current tendency in any event”: at [75]. The DAC appealed to this Court, and a Judge of this Court allowed the appeal and set aside the order of the ERD Court. The Judge gave two main reasons. First, the proposed division of land did not accord with the provisions of the Development Plan. He said:
[80]… Caravans by nature are moveable. Placing a caravan on land is not development for the purposes of the Development Act. A caravan is, by nature, not a permanent structure attached to land. Because of that, I am prepared to accept that the use of an area in a caravan park for the long-term parking of a caravan is consistent with popular understanding of the functions of a caravan park. However, subdivision into allotments for the placement of such caravans, given their likely mobility, is not shown in this case to be necessary or desirable. There would be nothing to prevent the development of such sites, either alone or in combination, being used for the development of permanent accommodation.
[81]Permanent structures, such as shacks and cabins, require different considerations. While they can be used for purposes consistent with the Policy Area provisions, the evidence shows that their intended use as a result of this proposed subdivision is for purposes inconsistent with the desired future character of the Zone, and that such use does not accord with the type of accommodation contemplated by the Policy Area provisions.
The Judge also said that the relevant provisions of the Development Plan contemplated the use of land for “casual hired accommodation”, rather than for accommodation occupied exclusively by an owner, and that the use to which the allotments would be put was not consistent with the Development Plan: [110]-[111]. The Judge also held that the scheme description for the purposes of the CTA defined the proposed use of the land (the definition is set out above) in terms that could not lawfully be implemented under the CTA, because the proposed limitation on use was contrary to s 37(1)(c) of the CTA (set out above). Accordingly, it was not appropriate to grant Development Plan consent because the relevant development authority could not properly endorse the proposed scheme.
The appellant has appealed to this Court against that decision.
Consideration of Development Plan
The hearing before the ERD Court proceeded on the basis that the ERD Court was not asked to consider whether the current use of the land was as “a caravan park”, the term used in the 1984 planning approval. The issue of whether the suggested tendency towards exclusive use of caravans and cabins by owners had occurred, and had brought about a situation in which the site was no longer used as “a caravan park” was put to one side as being an enforcement issue, rather than an issue relevant to Development Plan consent.
On occasions the Judge has expressed himself in his reasons as if he was determining that the current use of the land is unlawful because of the degree of owner occupation “to the exclusion of short term casual visitor accommodation” contemplated by the relevant provisions of the Development Plan: for example, at [77]. It is not clear that the Judge was making a finding about the lawfulness of the existing use. Arguably what he said on this point was an aspect of his consideration of the use that would be facilitated and encouraged if Development Plan consent was given.
It is appropriate, in light of the approach taken in the ERD Court, to decide the matter on the basis that the issues are whether the approval of the proposed division would facilitate and encourage the use of the site predominantly for occupation by the owners of the respective sites, to the exclusion of casual visitors and tourists; whether that is relevant to Development Plan consent, and whether, if the first two questions are answered in the affirmative, the use of the sites predominantly for owner occupation to the exclusion of casual visitors and tourists is a use consistent with the relevant provisions of the Development Plan.
The provisions of the Development Plan have been considered by the ERD Court and by the Judge. There is no need to traverse the detail again. The relevant provisions allow scope for differences of opinion as to their effect.
I agree with two central conclusions reached by the Judge, after his consideration of the Development Plan. The subject land is situated in an area of the plan designated “Recreation and Tourism Policy Area”. The Judge said that provisions in this part of the Development Plan emphasised tourism and recreational activities, and the provision of “short term casual visitor accommodation”: at [54]. The Judge also said that the relevant provisions did not envisage “permanent residential development and separate ownership”: at [68]. He said that the proposed development would promote the use of cabins of the latter kind, something not encouraged by the relevant provisions of the Development Plan but encouraged by the provisions relating to another area (the Shack Settlement Policy Area), although subject to careful safeguards: at [69]. That led the Judge to the conclusion that the proposed division would encourage a use of the land in a manner that did not accord with the provisions of the Development Plan relating to the relevant area, because those provisions contemplated developments for the purposes of recreation and tourism, including short term casual accommodation, and that was not consistent with this proposal.
Those conclusions can stand whether or not the situation adverted to by the Judge has already occurred to some extent, and whether or not the existing use continues to be use as a “caravan park” for the purposes of the original planning consent.
Mr Roder SC, counsel for the appellant, challenges the Judge’s interpretation of the Development Plan. While I recognise the scope for argument about the meaning of the Development Plan in this respect, in the end I am persuaded that the Judge is correct. It is no criticism of the Development Plan to say that the relevant provisions are not, in this respect, precise in their meaning. A development plan is not intended to be drafted or interpreted like a statute. But I consider that the Judge has correctly identified a contrast in the relevant provisions between facilities for short term and casual occupation, and facilities for and connected with exclusive or largely exclusive owner occupation and use.
Mr Roder also challenged the implicit factual conclusion that if the proposal was approved, site owners would tend to make exclusive use of their cabins and caravans, and that use of the sites would no longer be a use as “caravan park”. Once again, I agree with the Judge. Ownership of the site of a cabin would protect an owner’s investment in the structure, and encourage expenditure improving the cabin for the owner’s use. The same could be said, although to a lesser extent, in relation to caravans kept permanently on the site.
I have not overlooked Mr Roder’s point that the appellant has a planning consent which authorises the use of the site as “caravan park”, and that that use embraces or permits the use of the site in the manner anticipated by the Judge, and treated by the Judge as contrary to the relevant provisions of the Development Plan. In other words, Mr Roder submits that use of a site as a “caravan park” includes the use of a site containing caravans and cabins which are used substantially and perhaps exclusively by owners of the cabins or caravans, or persons with long term occupancy rights: Lawry v Development Assessment Commission at [43]-[44]. This is a difficult issue, and one that seems to have received little attention in the ERD Court because of the agreed basis upon which the matter was argued. I recognise that in any given case raising this issue, everything would turn on the particular facts. This is a case in which almost all cabins and caravans in the caravan park will be on individually owned sites, facilitating and encouraging almost exclusive use of the site as a whole by owner occupiers, with almost no scope for casual visitor accommodation. I am not persuaded that the Judge was wrong to conclude that that is not a use embraced by “caravan park”.
Mr Roder then argued that as this is a proposal for division of land, there is no occasion to consider the likely later use of the land if Development Plan consent is given. The consent that is sought would not authorise a change of use to the use that the Judge anticipated, would not protect such a change of use if it has occurred already, and would not justify an application for Development Plan consent for such a change of use. He referred to a number of decisions which do establish that subdivision of land does not involve any use of land, or any change of use, nor does it involve an approval of a prospective or anticipated change of use: Wehbe v Pittwater Council [2007] NSWLEC 827; (2007) 156 LGERA 446 at [27]-[28] and Broker Pty Ltd v Shoalhaven City Council [2008] NSWCA 311; (2008) 164 LGERA 161 at [81]-[84]. Mr Roder made the point that the relevant part of the plan provides by Principle 22(c) that, in relation to land division, allotments should be located and of a size and configuration which “is able to satisfactorily accommodate an appropriate use of the land consistent with the site’s land capability and suitability”. He made the point that the division proposed the creation of sites that could be used to accommodate casual visitor and tourist accommodation. But as the Judge pointed out, Objective 10 of the Objectives applicable to all land within the area of the Development Plan provides for “Division of land for purposes appropriate to the location and intended use of the land”. Also, the relevant part of the Plan emphasises the use of the relevant area for recreation and tourism activities, with a range of accommodation catering for visitor needs. Development should be consistent with the “desired future character” of the area. The Development Plan designates as “unacceptable” the use of land for “urban residential” purposes, and designates as “non-complying” development that involves a “dwelling”, subject to immaterial exceptions.
In my opinion the approach that Mr Roder takes is too narrow. It was appropriate for the Judge to take into account the circumstance that the proposed division would facilitate and encourage a use of the sites for purposes inconsistent with the desired future character of the relevant area, and a use that did not accord with the kind of accommodation contemplated by the relevant provisions of the Development Plan: at [81].
In my opinion the Judge’s approach was correct. Earlier in these reasons I have set out an extract from the Judge’s reasons at [21]-[23]. I respectfully agree with the approach foreshadowed in that passage.
I accept that in a case of a division of land questions of likely future uses of the land, if divided, will arise relatively rarely. But, in the circumstances of this case, it was appropriate for the Judge to take the approach that he took.
I therefore agree with the Judge’s conclusion that the proposed division was not one that warranted Development Plan consent.
Consideration of the CTA
The statement in the scheme description of the purposes for which community lots can be used is of central importance in the scheme.
The draft or proposed scheme description was put before the ERD Court. I have set out above the provisions in the scheme description relating to the 89 community lots.
The effectiveness of this aspect of the scheme description turns on the description of the purpose for which the community lots may be used as being “solely for tourist/holiday accommodation purposes”. The definition of “Tourist/holiday accommodation” in the proposed scheme description is problematic. In my opinion this aspect of the scheme will be unenforceable from a practical point of view. The concept of “any single period of occupation” is quite uncertain in its content. Who would know in sufficient detail when and how an owner was using a lot, and in such detail as to be able to determine whether or not the use was for a permitted purpose? The addition to the definition proposed by the ERD Court (this is set out above) reflects an appreciation of the problematic aspect of the scheme description, but to my mind does not resolve the problem. It adds further complexity.

The Judge said that this aspect of the scheme description would have to be reflected in a by-law. I agree that if the scheme description were to contain the provisions referred to, compliance with s 34(2)(d) of the CTA would require a by-law implementing those aspects of the scheme description. The Judge said that any such by-law would conflict with s 37(1)(c) of the CTA. It may be that this provision relates to physical entry on a lot, using the common property to gain access, rather than to the use and occupation of a community lot. But even if that is so, there is the further difficulty that a by-law implementing the proposed scheme description would conflict with s 37(1)(a) because of the restrictions that it will impose on leasing and the granting of rights of occupation. The question would also arise of whether a by-law implementing the relevant aspects of the proposed scheme description would be inconsistent with the ownership rights that the CTA vests in the proprietor of a community lot.
For these reasons I agree with the Judge that the proposed scheme description is one that could not properly be endorsed by the DAC because a by‑law giving effect to the relevant parts of the scheme description would be practically ineffective and contrary to s 37(1) of the CTA.
The Commissioner in the ERD Court imposed a number of conditions attached to the Development Plan consent intended to grapple with the practical aspects of regulating the use of community lots. The conditions are set out in the Judge’s reasons at [96]. They would have to be set out in the scheme description, if imposed by the relevant development authority: s 30(1)(h) of the CTA. It suffices to say that, with all respect to the Commissioner, I agree in general terms with the Judge’s criticism of the proposed conditions. They do not grapple satisfactorily with the problem. If anything, the combination of conditions attached to the Development Plan consent and the problematic scheme description is likely to make things worse rather than better.
If the proposed division was one that warranted Development Plan consent, I agree with Mr Roder that it would be appropriate to remit the matter to the ERD Court for it to hear further submissions and to consider whether and how the problem now under consideration could be resolved by either or both of an amended scheme description or appropriate conditions attached to the Development Plan consent. The problem should not be insurmountable, if the proposed development was one that warranted Development Plan consent. After all, the use of the land is at present controlled and limited by the consent granted in 1984, for the use of the land as a “caravan park”. While that terminology might give rise to its own practical problems when enforcement is considered, if it sets an enforceable limit on the use of the site there should be a way of reflecting it satisfactorily in the scheme description.
But because I agree with the Judge that the proposed development does not warrant Development Plan consent, it is not appropriate to remit the matter to the ERD Court.
As the Judge said at [107]:
[107]As I have observed, this is a case about land use, not about the suitability of structures on the proposed allotments. The application deserved to be refused because its likely effect would be to frustrate the operation of the relevant provisions of the Development Plan and to allow the use of allotments contrary to those provisions. The only way of preventing what was likely to be obvious disconformity with the Development Plan was by way of conditions attached to the Development Approval. That was an impermissible use of conditions.
Conclusion
For these reasons I would dismiss the appeal.
VANSTONE J: I agree that the appeal should be dismissed for the reasons given by the Chief Justice.
PEEK J: I agree that the appeal should be dismissed for the reasons given by the Chief Justice.