Long v Hornsby Shire Council

[2007] NSWLEC 267

Land and Environment Court

of New South Wales

CITATION:	Long v Hornsby Shire Council [2007] NSWLEC 267
PARTIES:	APPLICANT Rodney Long RESPONDENT Hornsby Shire Council
FILE NUMBER(S):	11553 of 2004; 10799 of 2006; 10800 of 2006
CORAM:	Tuor C
KEY ISSUES:	Development Consent :- Subdivision Section 96 application to amend conditions requiring s 94 contributions whether contributions plan correctly applied credit for existing development
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Local Government Act 1993 Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005 State Environmental Planning Policy No 21 – Caravan Parks Hornsby Local Environmental Plan 1994
CASES CITED:	Jefferson M Robinson & Associates Pty Ltd v Sutherland Shire Council [2004] NSWLEC 261; Masterbuilt Pty Ltd v Hornsby Shire Council [2005] NSWLEC 212; Hecar Investments No. 6 Pty Ltd v Lake Macquarie Municipal Council 53 LGRA 322
DATES OF HEARING:	12 December 2006
DATE OF JUDGMENT:	17 May 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr N Hutley SC assisted by Ms S Pritchard, barrister SOLICITORS Maddocks RESPONDENT Mr P Jackson,solicitor SOLICITORS Pike Pike and Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

17 May 2007

11553 of 2004, 10799 of 2006 and 10800 of 2006 Rodney Long v Hornsby Shire Council

JUDGMENT

1 COMMISSIONER: These are three separate, but related appeals against the deemed refusal by Hornsby Shire Council (the council) of applications under s 96(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) that seek to modify a condition of each consent that requires the payment of contributions under s 94 of the EPA Act for the subdivision of land at lot 100 DP 1034450, lots 59, 60, 639 and 912 DP 752053 known as 901 - 903 Pacific Highway, Berowra (the site).

The proposal

2 The site has an area of 6.4ha and consists of five lots which were used as a caravan park until October 2003. The s 96 applications relate to the consents for the following development applications:

· DA 2228/03 - the subdivision of five existing lots to provide for 33 community title lots. The application was approved by council on 17 March 2004. Condition 105 required a contribution of $338,923 for 29 lots at a rate $11,687 per lot (including a credit for four existing lots). The contribution has been paid.

· DA 1150/04 - the construction of two dwellings and the community title subdivision of approved lot 32 into two lots (a total of 34 lots). The application was approved by the Court on 18 May 2005 (Masterbuilt Pty Ltd v Hornsby Shire Council [2005] NSWLEC 212). Condition 33 required a contribution of $12,858 for the additional lot (including a credit for one existing lot). The contribution is outstanding.

· DA 957/05 - the subdivision of approved lots 30, 31 and 33 into 29 community title lots (a total of 60 lots). The application was approved by council on 19 October 2005. Condition 62 required a contribution of $342,687 for 26 lots at a rate $13,180 per lot (including a credit for three existing lots). The contribution has been paid.

3 The separate applications under s 96(1) of the EPA Act seek to modify the condition of each consent requiring a contribution under s 94 of the EPA Act. Each modification would result in a nil contribution. The conditions in dispute are:

Appeal No. 10799 of 2006 - DA 2228/03/E

4 Condition 105 states:

105. The payment of a contribution towards the cost of transport and traffic management, open space and recreation facilities, library and community facilities, bushland and environmental works, stormwater drainage, bushfire protection and Section 94 administration in accordance with Sections 94, 94B and 94C of the Environmental Planning and Assessment Act, 1979, and Hornsby Shire Council's Development Contributions Plan 2004-2010. The total contribution shall be $338,923 if paid prior to 30 June 2004. Following this date, contributions will be adjusted in accordance with the underlying consumer price index for the subsequent financial years, it being noted that there are: ­

* 29 Single Allotments @ $11, 687 per dwelling/allotment

The contribution may be lodged as a Bank Guarantee subject to the following terms:

• The bank unconditionally pays the guaranteed sum to the Council if the Council so demands in writing not earlier than 12 months from the provision of the guarantee or completion of the work whichever occurs first;

· The bank must pay the guaranteed sum without reference to the applicant or landowner or other person who provided the guarantee, and without regard to any dispute, controversy, issues or other matter relating to the development consent or the carrying out of development in accordance with the development consent; and

· The Bank's obligations are discharged when payment to the Council is made in accordance with this guarantee or when

Council notifies the Bank in writing that the guarantee is no longer required.

The contribution rate will be adjusted on an annual basis in accordance with the underlying consumer price index movements if not paid prior to 30 June 2004.

Note: A copy of Council's Contributions Plan may be inspected during business hours at the first floor of Hornsby Shire Council's Administration Building located at No. 296 Pacific Highway, Hornsby.

Appeal No. 11553 of 2004 - DA 1150/04/B

5 Condition 33 states:

33. The payment of a contribution towards the cost of transport and traffic management, open space and recreation facilities, library and community facilities, bushland and environmental works, stormwater drainage, bushfire protection and Section 94 administration in accordance with Sections 94, 94B and 94C of the Environmental Planning and Assessment Act, 1979, and Hornsby Shire Council's Development Contributions Plan 2004-2010. The total contribution shall be $12,858.80 if paid prior to the end of the quarter of the date of consent. Following this date, contributions will be adjusted in accordance with the underlying consumer price index for the subsequent financial years, it being noted that there are: -

* 1 x additional allotment @ $12,858.80 per allotment

This amount is to be paid to Council prior to issue of the construction certificate or the subdivision certificate, whichever occurs first. The contribution rate will be adjusted on an annual basis in accordance with the underlying consumer price index movements if not paid prior to the end of the quarter of the date of consent.

Note: A copy of Council's Contributions Plan may be inspected during business hours at the first floor of Hornsby Shire Council's Administration Building located at No. 296 Pacific Highway, Hornsby.

Appeal No. 10800 of 2006 - DA 957/05/A

6 Condition 62 states:

62. The payment of a contribution towards the cost of transport and traffic management, open space and recreation facilities, library and community facilities, bushland and environmental works, stormwater drainage, bushfire protection and Section 94 administration in accordance with Sections 94, 94B and 94C of the Environmental Planning and Assessment Act, 1979, and Hornsby Shire Council's Development Contributions Plan 2004-2010. The total contribution shall be $ 342,687.02 if paid prior to 30 December 2005. Following this date, contributions will be adjusted in accordance with the underlying consumer price index for each quarter, it being noted that there are: ­


*Twenty Six (26) additional allotments dwelling/allotment@ $13,180.27 per dwelling allotment

This amount is to be paid to Council prior to issue of the construction certificate or the subdivision certificate, whichever occurs first. The contribution rate will be adjusted on a quarterly basis in accordance with the underlying consumer price index movements if not paid prior to 30 December 2005.

Note: A copy of Council's Contributions Plan may be inspected during business hours at the first floor of Hornsby Shire Council's Administration Building located at No. 296 Pacific Highway, Hornsby.

7 The history of development on the site prior to the subdivision applications is set out in the Statement of Basic Facts as follows:

On 10 March 1959, Council consented to the use of the site for 6 motel cabins and a snack bar. The caravan park operated under the name of ‘Mirabooka’ until 1973. Until this time, a motel also operated on the site.

On 20 April 1972, Development Application No.47/72 was approved involving the addition of new caravan sites, an amenities block, an administration building and the upgrading of waste management facilities.

In 1973 the park began operating as ‘La Mancha Cara-Park’. Prior to its closure in October 2003, the park comprised two hundred and eight (208) sites, including 98 permanent sites, 50 tourist sites and 60 vacant sites. Of the 98 permanent sites, 18 were relocatable homes occupied by lessees and 17 were owned by the caravan park and leased. The caravan park operated under a licence granted by Council under the Local Government Act, 1919 which was renewed annually.

On 14 July 1987, Council granted a licence under Ordinance No 71 (Moveable Dwellings) to permit the occupation of 197 caravan sites, 98 for long term residents and 99 as short term sites.

8 Until 1995, the annual caravan park licence was granted under the provisions of Ordinance No 71. After 1995, the licence was granted under the Local Government (Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 1995 (the Regulations).

9 On 9 May 2003, council granted approval to the use of the site as a caravan park under s68 Part F2 of the Local Government Act 1993 (LG Act). The approval included 98 sites for long term residence of which 72 sites permitted self contained dwellings and 7 sites permitted ensuite facilities (the 2003 Approval).

10 Section 94 (1) of the EPA Act provides:

If a consent authority is satisfied that development for which development consent is sought will or is likely to require the provision of or increase the demand for public amenities and public services within the area, the consent authority may grant the development consent subject to a condition requiring:
(a) the dedication of land free of cost, or
(b) the payment of a monetary contribution,
or both.

11 Section 94B(1) of the EPA Act provides:

A consent authority may impose a condition under s94 or 94AA only if it is of a kind allowed by, and is determined in accordance with, a contributions plan (subject to any direction of the Minister under this Division)

12 The contributions for DA 2228/03 were based on Hornsby Development Contributions Plan 2004 – 2010, January revision that came into effect on 1 January 2004. The contributions for DA 1150/04 and DA 957/05 were based on Hornsby Development Contributions Plan 2004 – 2010, November revision (the Contributions Plan) that came into effect on 26 November 2004. The main difference between the January and November contribution plans is that the latter introduced quarterly indexation as opposed to the annual indexation of the former. For consistency, I will refer to both plans as the Contributions Plan, unless a difference in the revision of the plan requires specific reference.

13 A1 of the Contributions Plan states that the purpose of the plan is:

The primary purpose of this plan is to enable Hornsby Shire Council to require a contribution towards the provision, extension or augmentation of public amenities and public services that will, or are likely to be, required as a consequence of development in the Hornsby Local Government Area (LGA).

14 Clause 1.3 expands this to include:

Other purposes of this plan are to:

· provide the framework for the efficient and equitable determination, collection and management of development contributions towards the provision of public amenities and services;

· provide an overall strategy for the coordinated delivery of public amenities and services consistent with Council’s Strategic intent and Management Plan;

· provide an adequate level of public facilities and services in the Hornsby LGA as development occurs and at a reasonable cost;

· enable Council to recoup funds which it has spent in the provision of amenities and services which will address the demands generated by new development;

· establish plan management arrangements (including monitoring of cash flow) which ensure that amenities and services nominated under the plan are provided in a timely and cost effective manner;

· ensure that the existing wider Hornsby community is not unreasonably burdened by the provision of public infrastructure required (either partly or fully) as a result of the ongoing development and re-development;

· provide a comprehensive and transparent strategy for the assessment, accounting and review of development contributions and minimise Council’s exposure to legal and financial risk; and

· ensure Council’s management of development contributions complies with relevant legislation and guidelines, and achieves best practice in plan format and management.

15 A5 of the Contributions Plan (January Revision) provides a summary of contributions rates. The contribution rates for medium and high density development and subdivision (per net additional dwelling or allotment) are provided for the following categories:

· SEPP 5 housing (occupancy rate 1.5)

· Medium and High Density (occupancy rate 2.1)

· Dwelling Houses and Single Allotment (occupancy rate 3.1)

16 A5 of the Contributions Plan (November Revision) provides slightly different categories being:

· SEPP Seniors Living Housing (occupancy rate 1.5)

· Medium/High Density Multi-Unit Housing (occupancy rate 2.1)

· Low Density Housing (attached/detached dwellings) and Additional Allotments (occupancy rate 3.1)

17 Clause 1.4.3 of the Contributions Plan provides:

Other Development not specified in the Plan
There may be other types of development not specified in this plan which generates a need for new/augmented public facilities and services. Such uses may include private hotels, cinemas, restaurants, civic buildings, car washes and so forth. In these instances, the Council may use its discretion to determine an “equivalent demand” to levy a contribution based on the demand generated by the specific development for the facility categories nominated under this plan. In general, such a determination would be based upon the development’s capacity in terms of the number of full-time employees, short and long-term residents, customers or equivalent. Where a development is proposed that has not been specifically identified under this plan but where it will generate demand for public amenities and services, Council may attach a condition of consent on an approval requiring a contribution based on equivalent demand.

18 Clause 2.7 of the Contributions Plan states under the heading "Allowances for Existing Development":

Contributions will be levied according to the estimated increase in residents or workers. An amount equivalent to the contribution attributable to any existing (or approved) development on the site of a proposed new development will be allowed for in the calculations of contributions. In assessing the contribution of existing development the following occupancy rates will be used:
Dwelling houses and single vacant allotments - 3.1 persons per dwelling or lot.
Other dwellings - 2.1 persons per dwelling
SEPP 5 dwellings – 1.5 persons per dwelling

19 The key disagreement between the parties was whether the 98 long term sites before the subdivision can be categorised as “other dwellings” and therefore attract a credit of 2.1 persons per dwelling. The Contributions Plan does not include a definition of “other dwellings”. The applicant’s submission is that the definitions of “dwelling” in Hornsby Local Environmental Plan 1994 (LEP 1994) and of “movable dwelling” in the LG Act are therefore applicable.

20 The site is zoned Residential A (Low Density) under LEP 1994. Caravan parks and tourist facilities are not permissible with this zone and site enjoyed existing use rights. Subdivision is permissible within the zone but the development applications relied on existing use rights to vary the density provisions in LEP 1994.

21 The following definitions in LEP 1994 are of relevance to the applications:

"camp or caravan site" means a site used for the purpose of:
(a) placing moveable dwellings (within the meaning of the Local Government Act 1993) for permanent accommodation or for the temporary accommodation of tourists, or
(b) the erection, assembly or placement of cabins for the temporary accommodation of tourists.

"dwelling" means a room or number of rooms occupied or used, or so constructed or adapted as to be capable of being occupied or used, as a separate domicile.

"dwelling-house" means a dwelling, other than a rural worker’s dwelling or an attached dwelling, that is the only dwelling on an allotment.

"moveable dwelling" means a dwelling which is:
(a) a self contained dwelling including at least a kitchen, bathroom, bedroom, living area, toilet and laundry facilities, and
(b) manufactured off-site in one or more major sections and transported to a site for installation, and
(c) capable of being placed on and removed from a site within 24 hours,
but does not include a caravan, mobile home and the like.

22 The LG Act definition is:

"moveable dwelling" means:
(a) any tent, or any caravan or other van or other portable device (whether on wheels or not), used for human habitation, or
(b) a manufactured home, or
(c) any conveyance, structure or thing of a class or description prescribed by the regulations for the purposes of this definition.

23 State Environmental Planning Policy No 21 – Caravan Parks (SEPP 21) would also be a relevant consideration in the approval of a caravan park. This includes the following definitions:

caravan park means land (including a camping ground) on which caravans (or caravans and other movable dwellings) are, or are to be, installed or placed.

moveable dwelling has the same meaning as it has in the Local Government Act 1993

24 As I understand the current approval regime, if development on the site for the purposes of a caravan park is being lawfully carried out, the provisions of s 68 of the LG Act and the Regulations control the instillation of a movable dwelling and no further development consent is required.

25 The Regulation defines “Long term site” as “a dwelling site that is specified in the approval for a caravan park as being a long term site”. “Dwelling Site” as “an area of land within a caravan park on which a moveable dwelling may be installed and which is designated as dwelling site by the approval for the caravan park”. Moveable dwelling has the same meaning as in the LG Act.

26 There was no dispute between the parties that a valid development approval to use the site for the purpose of a caravan park existed. The parties also agreed that a series of caravan park licenses were approved for the site. The most recent being the 2003 Approval which included 98 long term residence sites. The parties also agreed that, at the time the park closed, the long term sites were largely occupied with “dwellings”. I understand no development consent was required or granted for the instillation of the “dwellings” on the site. The period that the “dwellings” had existed on the site, the term of residency and the number of occupants was not established.

The issues

27 The issues in each of the appeals are essentially the same. The applicant contends that the conditions in dispute are unreasonable. Specifically, that cl 2.7 of the contributions plan has been incorrectly applied and that a credit should have been given of 2.1 persons for each of the 98 “other dwellings” on the site before the subdivision. On this basis a nil s94 contribution is required. Council contends that there is a further issue as to whether the proposed developments will generate greater demand for services and facilities.

The evidence

28 The planning experts, Mr Andrew Minto, for the applicant, and Mr Daniel Ouma-Machio, the Executive Planner with the council, provided Statements of Evidence and a Joint Statement. They were not required for cross examination. The experts agreed that:

i the Contributions Plan applies to the proposals.
ii the provision of community facilities on the site as part of the redevelopment does not mean the Contributions Plan is not applicable.
ii council has granted a total of 8 credits in respect of the three consents.
iii for the purposes of section 2.7 of the Contributions Plan that Council by letter dated 9 May 2003 has granted a licence for a total of 98 long term residence sites upon the subject lands.

29 In summary, the key difference of opinion between the experts was that Mr Ouma-Machio considered that cl 2.7 of the contributions plan had been correctly applied and that the proposed development would generate a greater demand for services and facilities. Mr Minto held the contrary opinion that cl 2.7 had not been correctly applied and that the question of whether the proposed development would generate a greater demand for services is not relevant.

Minto evidence

30 Mr Minto relies on the terms of cl 2.7. He states that the 98 long-term residences could fall into either one or two nominated categories in cl 2.7, being a dwelling house or other dwellings. The Contributions Plans do not provide definitions for a dwelling house or other dwellings. In the absence of such definitions those in LEP 1994 can be considered.

31 As the site contained 98 long-term dwellings erected over five lots Mr Minto accepts that the structures cannot be defined as "dwelling houses". However Mr Minto states that the structures satisfy the definition of "other dwellings" and as such are subject to the provisions of cl 2.7. Based on an occupancy rate of 2.1 persons, a credit for 205 people should be provided. On this basis, condition 105 of DA 2228/03/E, condition 33 of DA 1150/04/B and condition 62 of DA 957/05/A should be modified to require a nil contribution.

32 Mr Minto acknowledged that the calculated population may not have been the actual population. He stated that:

the plan relies on averaging a population based upon development types rather than an assessment of the exact population at a given time.

33 Mr Minto provided an aerial photo dated April 2000 and an overlay of the caravan park sites. This illustrated that almost all the permanent sites (as well as a large number of the other sites) had structures on them.

34 Mr Minto considered that the question of increased demand for services did not arise. However, he stated that permanent residents of caravan parks were likely to generate a greater demand for services than residents in the proposed development. He referred to a council report dated 17 November 2004 entitled “Affordable Housing in Caravan Parks” to support this opinion.

35 Mr Minto acknowledged that his opinion now was different to that contained in the Statement of Environmental Effects (SEE) that accompanied DA2228/03. In this Mr Minto stated that:

The proposed development will introduce a stable population into the local area, providing increased demand for local services and facilities.

Ouma-Machio evidence

36 Mr Ouma-Machio stated that the definition of “other dwellings” in cl 2.7 of the Contributions Plan does not include caravan parks. Rather he considered it should be interpreted by reference to the three dwelling types for which contributions can be levied as set out in A5 of the plan, “other dwellings” being a reference to medium/high density multi unit housing.

37 Further Mr Ouma-Machio stated that:

The application of Section 94 contributions to caravan parks is governed by Sections 1.4.3 of the Contributions Plans. Under these sections, Council exercises discretion as to whether or not contributions may be levied against certain developments.

38 In relation to the demand for services, Mr Ouma-Machio stated that when the caravan park closed it was licensed for 98 long term sites, however, the number of long term residents is unknown and there is no assessment of the impact of residents on local services. He stated that:

a reasonable assumption would be that the residents of the park would have placed limited demands on Council’s services and facilities and that the new and more permanent residents would increase the demand for services and facilities.

39 Mr Ouma-Machio referred to the decision of Hoffman C in Jefferson M Robinson & Associates Pty Ltd v Sutherland Shire Council v Sutherland Shire Council (2004) NSWLEC 261 which supported this opinion.

The applicant’s submissions

40 Mr Hutley SC submits that the primary basis for the modification is that in calculating the s94 contributions, cl 2.7 of the Contributions Plan has been wrongly applied and that the applicant should have been given credit of 2.1 persons for each of the 98 long-term dwellings which were approved and which existed on the site before the subdivision.

41 Cl 2.7 of the Contributions Plan is relevant as it provides that contributions will be levied according to the estimated increase in residents or workers. An amount will be allowed for in the calculation of contributions equivalent to the contribution attributable to any existing (or approved) development on the site of a proposed new development. To assess the contribution attributable to exiting development, cl 2.7 uses an occupancy rate for particular development types. The focus of cl 2.7 is not on quantification of exact population but on averaging population based on different development types, such as “dwellings” and “other dwellings”.

42 As the Contributions Plan does not contain a definition of either "dwelling house" or "other dwellings" it is appropriate to have regard to the definitions within LEP 2004 as well as the definition of "movable dwelling" in the LG Act. In this regard the 98 long-term residences fall within the definition of "dwelling" in LEP 2004. Mr Hutley SC submits that the focus of the definition is not upon actual occupation or use but upon dwelling type and capacity for occupation or use as a separate domicile. Similarly, the 98 long-term residences fall within the definition of "movable dwelling" in the LG Act.

43 Mr Hutley SC further submits that it makes no sense to read the reference to "other dwellings" in cl 2.7 in the manner suggested by the council where "other dwellings" is a reference to "Medium/High Density Multi Unit Housing" development in A5 of the Contributions Plan. A5 is addressed to contribution rates for new development and refers to types of residential development permissible under current planning controls.

44 By contrast, it is logical to read allowances for existing development in broader terms. To do otherwise would provide that no allowance could be made for existing development, which were permissible when development consent was originally granted, but are no longer permissible as a result of a change in planning controls.

45 Accordingly, the council has sought to impose a condition under s 94 which is not allowed by, nor determined in accordance with the contributions plan. Consequently, there should be an allowance of 205.8 persons (based on 2.1 persons per dwelling) for the existing development based on 98 "other dwellings".

46 Mr Hutley SC submitted that Clause 1.4.3 of the Contributions Plan recognises that uses other than those listed in A5 may generate a demand for services and permits council to exercise its discretion. No such discretion is conferred for allowances for existing development. The only allowance for existing development is permitted by application of the categories in cl 2.7.

47 Mr Hutley SC acknowledged that the existing development approval under the EPA Act was for a caravan park but that further approvals have been granted under the LG Act. In his submission cl 2.7 is not limited to an approval under the EPA Act. Rather the characteristics of what is approved or exists on the site, as a fact, are relevant. The facts are that a caravan park with 98 long term resident sites has been approved on the site and that 98 residences were erected on the site having the characteristics of “other dwellings” for the purpose of cl 2.7.

48 On Mr Hutley’s submission the question of whether or not the developments create a demand for services does not arise as the allowance for existing development is based on cl 2.7 of the Contributions Plan and not the principles of reasonableness. The submission is not based on an application under s 94B(3) of the EPA Act to disallow or amend a condition imposed under s94 because it is unreasonable in the particular circumstances of a case, even though it was determined in accordance with the provisions of a contributions plan as was the situation in Jefferson M Robinson & Associates Pty Ltd v Sutherland Shire Council [2004] NSWLEC 261.

The council’s submissions

49 Mr Jackson accepts that cl 2.7 of the Contributions Plan makes allowances/credits for existing development in circumstances set out in the clause. He submits that to understand the meaning of the clause it should not be looked at in isolation but in the context of the Contributions Plan as a whole within the regime of the EPA Act. In Mr Jackson’s submission it is not appropriate to rely on licences or provisions of the LG Act to reach a conclusion that the structure on the site are “other dwellings” within the meaning of LEP 1994 and the Contributions Plan. The heading and content of cl 2.7 refers to “existing development”, “development” in Mr Jackson’s submission relates to the use of the land not to the “structures” erected on it.

50 The legislative regime under the LG Act and the EPA Act are different. In Mr Jackson’s submission the approved development on the site is that approved under the EPA Act and is properly categorised as a “camp or caravan site” not a “dwelling” or “dwelling house”. If the applicant’s submission is accepted other different uses on the site, such the administration building could arguably also attract a credit. It is not appropriate to separately define each use on the site but to define the totality of the use, which is a caravan park on five allotments.

51 There is no credit or allowance given in respect of camp or caravan parks under cl 2.7. Council has allowed credits for existing allotments on the site for each application (a total of eight credits equating to about $100,000).

52 In Mr Jackson’s submission a reference to "other dwellings" means "Medium/High Density Multi Unit Housing" as set out in the schedule of contribution rates at A5 of the Contributions Plan. The schedule of rates makes no reference to a rate for a “camp or caravan site” and in such circumstances, the council has a discretion whether to levy a contribution pursuant to cl 1.4.3 of the Contributions Plan when development of land is for a “camp or caravan site”.

53 Mr Jackson noted that no contribution had been levied for the caravan park on the site as it was approved prior to EPA Act. Nor had a levy been applied to the long term dwellings on the site as no development consent was required.

54 Further, Mr Jackson submitted that such an interpretation of cl 2.7 would lead to the “absurd result that no s 94 contributions would be paid [nor have any been paid for previous development]”.

55 Under cl 2.7 of the Contributions Plan council has given credits for previous allotments on the site. If the Court finds that under cl 2.7 the category of existing or approved development is “other dwellings” the council submits that the evidence does not support a credit for the number of “other dwellings” ie 205 persons.

Findings

56 Because of the dispute over the meaning of "other dwellings" in the Contributions Plan, the judgement of Cripps J in Hecar Investments No. 6 Pty Ltd v Lake Macquarie Municipal Council 53 LGRA 322 is helpful where he states (at 323):

I adopt, with respect, the observation of Lord Reid in Gill v Donald Humberstone & Co Ltd [1963] 1 WLR 929 at 923, 924 that when interpreting delegated legislation, the court ought be concerned with practical considerations rather than construing it by meticulous comparison of the language of the various provisions such as might be appropriate in construing sections of an Act of Parliament and that if that language is capable of more than one interpretation, a court ought discard the more natural meaning if it leads to an unreasonable result, and adopt that interpretation which leads to a reasonably practical result .

57 In balancing the evidence and submissions from the parties, I accept the conclusions reached by the council for number of reasons. Part A1 identifies the primary purpose of the Contributions Plan as enabling the council "to require a contribution towards the provision, extension augmentation of public amenities and public services that will, or are likely to be required, as a consequence of development in the Shire of Hornsby local government area". A reference to “development” must be a reference to those land uses identified in LEP 1994 as development may only occur in accordance with LEP 1994. The Contributions Plan is clearly a document that relies on and is supported by the provisions of LEP 1994.

58 Existing development on a site may have been approved prior to LEP 1994 or with no requirement for development approval. Nonetheless, it is appropriate for the purpose of cl 2.7 to categorise an existing development in accordance with the definitions that exist within LEP 1994. In these appeals this task is simplified as a development consent was granted in 1972 for the use of the site as a caravan park. This is the approved and existing development on the site. LEP 2004 includes the following definition:

"camp or caravan site" means a site used for the purpose of:
(a) placing moveable dwellings (within the meaning of the Local Government Act 1993) for permanent accommodation or for the temporary accommodation of tourists, or
(b) the erection, assembly or placement of cabins for the temporary accommodation of tourists.

59 This definition specifically allows the use of a caravan site for placing movable dwellings (within the meaning of the Local Government Act 1993) for permanent accommodation. The definition of moveable dwelling in the LG Act includes a range of accommodation, including tents, caravans and manufactured homes. I do not accept that a “moveable dwelling” under the LG Act equates to a “dwelling” in LEP 1994, particularly as no subsequent development consent for the “movable dwellings” on the site was required under the EPA Act. I accept Mr Jackson’s submission that there is a different legislative regime for “dwellings” which form part of a caravan park and that it is not appropriate to apply this regime to interpret cl 2.7. I note that the definition of “movable dwelling” in the LG Act referred to in the definition of "camp or caravan site" in LEP 1994 is different to the definition of a “movable dwelling” in LEP 1994.

60 The definition of “dwelling” in LEP 1994 does not include any requirement for long term or permanent habitation. The applicant’s submission would therefore arguable include as “other dwellings” structures on short term sites provided they are capable of occupation as a separate domicile.

61 Although the issue is not without some doubt, I am satisfied that a practical and reasonable reading of the Contributions Plan supports the council’s argument that a reference to "other dwellings" does not include a “movable dwelling” installed as part of a caravan park. I accept that in examining the aims and structure of the Contributions Plan the practical and reasonable meaning of “other dwellings” is "Medium/High Density Multi Unit Housing" as set out in the schedule of contribution rates at A5 of the Contributions Plan. It is appropriate that if there is a levy for new residential development there should also be a credit for that type of existing residential development. A5 does not require a contribution for caravan parks and as a “movable dwelling” does not require development consent no s94 contribution can be levied.

62 Cl 1.4.3 allows other uses which generate a demand for services not listed in A5 to be levied at the discretion of council. No s94 contribution has been levied for the site. It is not clear whether cl 2.7 would permit the same discretion for credits. It would appear consistent with the overall purpose of the plan and the wording of cl 2.7 if such discretion were permitted to ensure that a contribution is only levied for development that generates an increased demand for services. However, the wording of cl 2.7 is ambiguous in this respect and it is not a matter that I am asked to adjudicate upon as the applicant is only seeking a credit on the basis of the definition of “other dwellings’’ not on the exercise of discretion based on the likely demand for services.

63 In not accepting the applicant’s submission I am mindful that the applicant’s interpretation of cl 2.7 would result in no contribution being paid for the subdivision applications. I accept that the existing “dwellings” would provide permanent accommodation for a number of people which would have utilised services in the area. However, there is no evidence to support the contention that this would be greater than the demand generated from the proposed developments of the site for permanent accommodation sufficient to justify no s 94 contribution being paid.

64 The applicant’s case relied on the interpretation of cl 2.7 and the number of “dwellings” on the site rather than the demand likely to be generated. While the evidence is clear that in April 2000 there were about 98 “dwellings” on the site there is no evidence that these were all capable of being occupied or used as a separate domicile. The 2003 approval includes 98 long term residence sites of which 72 are for self contained dwellings and 7 have ensuite facilities. It would appear that the other 19 rely on communal facilities and are therefore, not even on the applicant’s submission, “dwellings” as defined under LEP1994.

65 Even if it is accepted that there are 98 self contained dwellings, no conclusion can be drawn from the evidence as to the occupancy of these dwellings, the permanency of residents or their demand for services. While it is a simple exercise to apply an occupancy rate to the number of dwellings, this rate should be based on a realistic occupancy. I do not accept that an occupancy of 205 people is appropriate. This is based on a rate of 2.1 persons per dwelling which Mr Minto states is averaging a population based upon development types rather than an assessment of the exact population at a given time. While this would be an appropriate average rate for Medium/High Density Multi Unit Housing it would appear not to reflect an average occupancy rate for “movable dwellings” given the size of the dwelling. The rate of 1.5 persons for SEPP 5/Seniors Living may be more applicable.

66 Further the SEE which accompanied DA 2228/03 stated that:

The caravan park up until the 30th October 2003 comprised of two hundred and eight (208) sites including:

Permanent sites - cabins 98
Tourist sites – onsite vans & cabins 50
Vacant tourist sites – campervan, tents 60

Permanent sites were those where leases were arranged for stays in excess of 30 days. Of the 98 permanent sites, 18 were relocatable homes occupied by the lessees, 17 were owned by the caravan park and leased. The remainder of the sites were unoccupied.

67 An occupancy of 2.1 persons would equate to about 73 people, however, the Mayoral Minute of 19 March 2003 refers to a population of 34 permanent residents. While these populations are not verified and may have been greater at other periods there is nothing to suggest that there was consistently a permanent population of 205 residents who utilised services in the area. This certainly was not addressed in the report to Council of 17 March 2004 in relation to DA 2228/03. The report discussed the social impact of the closure of the caravan park but I presume this assessment was based on the statements in the SEE which provided no indication of the removal of permanent accommodation for potentially 205 people. The displacement of such accommodation would have been a significant issue to be assessed in the determination of the original application.

68 Although, not raised in the hearing, it would appear that even if I accepted the applicant’s interpretation of cl 2.7 this would permit a credit for “other dwellings” only for DA 2228/03, which once consent was granted, for the purpose of cl 2.7 would then be the “approved development”. For the subsequent applications the credit would be based on this approved development, being the number of allotments in the approved subdivision. This is consistent with council’s determination of these applications.

Orders

69 For the above reasons the Orders of the Court are:

1. The appeals are dismissed.

2. The applications under s 96(1) of the Environmental Planning and Assessment Act 1979 that seek to modify condition 105 of DA 2228/03 (Appeal No 10799 of 2004), condition 33 of DA 1150/04 (Appeal No 11553 of 2004) and condition 62 of DA 957/05 (Appeal 10800/2006) that require the payment of contributions under s 94 of the Environmental Planning and Assessment Act 1979 for subdivision of land at 901 - 903 Pacific Highway, Berowra, are refused.

3. The exhibits, except Exhibits 1, 2, 3, 4, 5 and 6, may be returned.

__________________
Annelise Tuor
Commissioner of the Court