Meriton Apartments Pty Limited v Fairfield City Council

[2004] NSWLEC 423

Land and Environment Court

of New South Wales

CITATION:	Meriton Apartments Pty Limited v Fairfield City Council [2004] NSWLEC 423
PARTIES:	APPLICANT: Meriton Apartments Pty Limited RESPONDENT: Fairfield City Council
FILE NUMBER(S):	11478 of 2003
CORAM:	Pain J
KEY ISSUES:	Existing Use Rights :- whether existing use rights for tourist caravan park - whether abandonment of existing use rights
LEGISLATION CITED:	County of Cumberland Planning Scheme Ordinance Environmental Planning and Assessment Act 1979, s 106, s 107(1) Environmental Planning and Assessment Regulation 2000, Pt 5 Fairfield Local Environmental Plan 1994 Fairfield Planning Scheme Ordinance Local Government Act 1919 Local Government Act 1993
CASES CITED:	ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 64 LGRA 177; Baulkham Hills Shire Council v O'Donnell (1990) 69 LGERA 404; Dosan Pty Limited v Rockdale City Council (2001) 117 LGERA 363; Eaton & Sons Pty Limited v The Council of the Shire of Warringah (1972) 129 CLR 270; Foodbarn Pty Limited v Solicitor General (1975) 32 LGRA 157; House of Peace Pty Limited v Bankstown City Council (2000) 48 NSWLR 498; Hudak and Woollahra Municipal Council v Banool Developments Pty Ltd (1973) 129 CLR 138; Jeblon Pty Limited v North Sydney Municipal Council (1982) 48 LEGRA 113; Lane Cove Municipal Council v Lujeta Pty Limited (1986) 58 LGRA 157; Northern Territory Planning Authority v Murray Meats (NT) Pty Ltd (1983) 51 LGRA 158; North Sydney Municipal Council v Boyts Radio & Electrical Pty Limited (1989) 16 NSWLR 50; RCM Constructions v Ryde City Council [2004] NSWLEC 266; Rose Bay Marina Pty Ltd v Minister for Urban Affairs and Planning (2002) 122 LGERA 255; Royal Agricultural Society v Sydney City Council (1987) 61 LGERA 305; Shire of Perth v O'Keefe (1964) 110 CLR 529; Steedman v Baulkham Hills Shire Council (No 2) (1992-3) 31 NSWLR 562; Stubberfield v Brisbane City Council (1969) 24 LGERA 286; Sydney City Council v Ke-Su Investments Pty Ltd (No 2) (1983) 51 LGRA 186; Woollahra Municipal Council v TAJJ Investments Pty Ltd (1982) 49 LGRA 123
DATES OF HEARING:	07/06/2004 19/07/2004 23/07/2004 16/08/2004
DATE OF JUDGMENT:	11/05/2004
LEGAL REPRESENTATIVES:	APPLICANT: Mr B. J. Preston SC instructed by Phillips Fox RESPONDENT: Mr P. McEwen SC instructed by Marsdens

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

5 November 2004

11478 of 2003 Meriton Apartments v Fairfield City Council

JUDGMENT

1 Her Honour: The Applicant has commenced Class 1 proceedings appealing against the deemed refusal of its development application DA1828/2003 for the subdivision of Lot 3 in DP582893, known as 87-97 Hume Highway, Lansvale (“the land”), for residential purposes. The land is currently zoned “6(b) Private Recreation” under the Fairfield Local Environmental Plan 1994 (“the LEP”). Development for the purposes for which the Applicant’s development application seeks consent is prohibited within the “6(b) Private Recreation Zone” under the LEP. Accordingly, the Applicant’s development application will only be able to be approved if it can be shown that existing use rights apply to the land. If so, Part 5 of the Environmental Planning and Assessment Regulation 2000 applies to permit, subject to the grant of consent, the changing of an existing use “to another use, including a use that would otherwise be prohibited under the Act”.

2 The Council has raised the preliminary issue of whether existing use rights attach to the land and can be relied on by the Applicant so that its development application is permissible. The issue, as detailed in the Council’s Notice of Motion, is as follows:

Whether there is an existing use of the land subject of these proceedings (“the land”), as defined in s 106 of the Environmental Planning and Assessment Act 1979,which would permit the grant of consent to use the allotments proposed to be created for the purpose of dwellings and/or dwelling houses or any other form of residential development.

Background

3 Based on the Points of Claim prepared by the Applicant and an agreed chronology prepared by the parties a substantial part of the relevant background history is agreed as follows:

The County of Cumberland Planning Scheme Ordinance

4 On 27 June 1951, the land was reserved under Division 2 of Part II of the County of Cumberland Planning Scheme Ordinance (“the CCPSO”) for the purposes of “parks and recreation area” as indicated by dark green colouring on the scheme map. A caravan park was permissible on the land subject to the grant of development consent from the Cumberland County Council.

The 1954 Consent

5 On 15 January 1954, the then owner of the land applied to Cumberland County Council pursuant to the CCPSO and Part XIIA of the Local Government Act 1919 for approval to establish a “tourist-caravan park” on the land.

6 On 19 February 1954, Cumberland County Council resolved that approval be given to the proposed development subject to a number of conditions including:

…
(d) Except for a caretaker, the caravan park is to be used for accommodating tourists, travellers and other transient persons only and shall not be used, leased or occupied for permanent residence.

7 On 1 March 1954, Cumberland County Council wrote to Mr and Mrs J.C. Olsson referring to the application “to establish a caravan park” on the land and advising that Cumberland County Council, at its meeting held on 19 February 1954, resolved that approval be given to the “proposed development” subject to the conditions including (d) quoted above (“the development consent”).

8 The Applicant purchased the property on 24 October 1973.

9 On 3 May 1974 the Fairfield Planning Scheme Ordinance (“the FPSO”) was gazetted. The FPSO zoned the land “6(c) Open Space Recreation”. The zoning table located in Part III of the FPSO prohibited caravan parks within the 6(c) zone. However, cl 27 of the FPSO provides as follows:

(1) Notwithstanding the provisions of Part III but subject to the provisions of Part II, an existing building or an existing work may be maintained and may be used for its existing use and an existing use of land may be continued notwithstanding that such existing use is for a purpose for which buildings or works may not be erected, carried out or used for which land may not be used under Part III in respect of the zone in which such existing building or existing work or such land is situated.
(2) Where, in accordance with subclause (1), an existing building or an existing work may be maintained and used for its existing use or an existing use of land may be continued, and such use is permissible by virtue of a consent granted under the County of Cumberland Planning Scheme Ordinance, such consent and any conditions attached thereto may be enforced as if it were a consent granted under this Ordinance, or such conditions were attached to a consent so granted.

10 An existing use was relevantly defined by s 4 of the FPSO as follows:

“Existing use” means a use of a building, work or land for the purpose for which it was used immediately before [the day on which the FPSO took effect]…

Fairfield Local Environmental Plan 1994

11 On 12 August 1994 the LEP came into force. As set out above, the LEP zoned the land “6(b) Private Recreation”. The zoning table at cl 8 of the LEP has the effect that caravan parks are prohibited within this zone.

12 Section 107(1) of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) provides that:

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

13 Section 106 of the EP&A Act defines “existing use” 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 which would, but for Division 4A of Part 3 or 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.

The Issues

14 The Applicant and the Respondent agreed that the relevant date for determining whether existing use rights attach to the land is the date on which the FPSO came into force, being 3 May 1974 (“the relevant date”). This was the date on which development for the purpose of caravan parks first became prohibited within the relevant zone. Following the hearing I requested the parties to provide the Court with submissions addressing aspects of the operation of cl 27 of the FPSO. The parties agreed that while cl 27(1) states that “an existing use of land may be continued notwithstanding that such existing use is for a purpose for which … land may not be used under Part III in respect of the zone in which … such land is situated” and cl 27(2) has the effect that the development consent continues, this did not remove the prohibition on caravan parks contained in part III of the FPSO. Further, the parties agreed that cl 27 did not mean that the appropriate test for determining the scope of any existing use rights attaching to the land, as at 3 May 1974, was that contained in the FPSO. Accordingly, the parties agreed that the test for determining the scope of the existing use right is that contained in s 106 of the EP&A Act.

15 The Applicant argued that only s 106(a) of the EP&A Act applies while the Council argued that both s 106(a) and (b) apply. However, both parties agreed that:

(a) it is the development consent which must be construed to determine the scope of the “lawful purpose” permitted on the land as at the relevant date; and
(b) if the Applicant can show that the land was used for a “lawful purpose” immediately prior to the relevant date then, unless the Council can show that this use has subsequently been abandoned, existing use rights to use the land for the “lawful purpose” authorised by the development consent attach to the land.

16 Accordingly, there are three issues which the Court needs to resolve in order to determine the preliminary issue of whether existing use rights attach to the land:

(i) What is the “lawful purpose” authorised by the development consent?
(ii) Was a “use … for a lawful purpose” commenced prior to 3 May 1974?
(iii) Has this “use … for a lawful purpose” been abandoned after the relevant date?

17 The parties agreed that in determining these issues it is the Applicant who bears the onus of establishing that the land has the benefit of existing use rights while it is the Respondent who bears the onus of establishing the abandonment of these existing use rights: Jeblon Pty Limited v North Sydney Municipal Council (1982) 48 LEGRA 113 (“Jeblon”). Thus it is the Applicant who will bear the onus, on the balance of probabilities, in relation to issue (ii) while the Respondent will bear the onus of proof, on the balance of probabilities, in relation to issue (iii).

The Evidence

18 The agreed chronology states that sometime after 29 November 1954 and before 16 October 1956, the use of the land for the purpose of caravan park commenced.

19 Both parties relied extensively on the documentary evidence contained in the Council’s file. The Applicant also relied upon the affidavit evidence of Malcolm Pallister, who managed the caravan park between 1973 and 1987. The Council also relied upon the affidavit evidence of:

(a) Sunnee Cullen, a town planner employed by the Council;
(b) Paul Grech, a consultant town planner;
(c) Lester Kelly, a onetime resident at the caravan park;
(d) Cornelius Koedam, a current resident at the caravan park; and
(e) Zoe Morgan, a current resident at the caravan park.
Neither Malcolm Pallister or Zoe Morgan were available for cross examination but the parties agreed that their evidence was able to be received into evidence nevertheless and that the fact they were not available for cross examination was a matter going to the weight to be given to their evidence.

(i) What is the “Lawful Purpose” Authorised by the Development Consent?
The Submissions

20 The Applicant relied on a number of cases including House of Peace Pty Limited v Bankstown City Council (2000) 48 NSWLR 498 (“House of Peace”) and North Sydney Municipal Council v Boyts Radio & Electrical Pty Limited (1989) 16 NSWLR 50 (“Boyts Radio”) to argue that the development consent which grounds the existing use rights attaching to the land is to be construed broadly, at a “genus” level. The Applicant argued that the proper characterisation of the “lawful purpose” authorised by the development consent is “caravan park” as this is the appropriate genus of use for town planning purposes as the impact of the use as a caravan park on the neighbourhood will not be affected by whether the caravans within the caravan park are occupied by temporary or longer term residents. The Applicant relied on a number of decisions including Lane Cove Municipal Council v Lujeta Pty Limited (1986) 58 LGRA 157 (“Lujeta”) and Royal Agricultural Society v Sydney City Council (1987) 61 LGERA 305 (“Royal Agricultural Society”) to argue that, as the proper characterisation for planning purposes is “caravan park”, there is no legal basis on which to further analyse “the species” within that definition, that is, park for tourists versus park for permanent residents, as these all fall within the genus of use as caravan park.

21 The Applicant argued that, applying these principles, the development consent should be interpreted as authorising the use of the land for the broad genus of “caravan park” and that this should not be read down by reference to the conditions of consent. Further, the Applicant argued that, even if the Applicant was in breach of the condition of consent requiring the caravan park “to be used for accommodating tourists, travellers and other transient persons only”, such a breach does not prevent the use from being lawful, as required by s 106 of the EP&A Act, as:

(a) s 106 is directed at the lawfulness of the purpose of the use and not the use itself; and
(b) separate mechanisms exist under the EP&A Act whereby the Council could seek to restrain any breach of the development consent.

22 The Council relied on RCM Constructions v Ryde City Council [2004] NSWLEC 266 (“RCM Constructions”) to argue that the “lawful purpose” for which the land could be used prior to the gazettal of the FPSO was confined to a “tourist caravan park” as it was this which the development consent, on its proper construction, authorises. The Council argued that the Applicant’s submission that one looks to the genus of the use to determine the lawful purpose is misconceived in circumstances where the development consent which defines the nature of the “lawful purpose” contains a specific prohibition on certain types of uses.

23 As set out above, “existing use” is defined by s 106 of the EP&A Act to mean:

(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 4A of Part 3 or 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.

Does s 106(b) apply as well as s 106(a)?

24 The Applicant relied on the test contained in s 106(a) whereas the Council argued that the test contained in s 106(b) also applies. Section 106(b)(i) must be read in conjunction with s 106(b)(ii), given the conjunctive “and” between the two subsections. It is clear that s 106(b) is not relevant to the circumstances before me where the development consent relied on was issued some 20 years before the relevant date. Therefore, this matter must be considered under s 106(a).

“Lawful purpose” v “lawful use”

25 The Applicant argued that in determining the “lawful purpose” authorised by the development consent, s 106 is directed to the appropriate purpose of the use and not to the use itself so the relevant question is “what, according to ordinary terminology, is the appropriate designation for the purpose being served by the use of the premises”; Shire of Perth v O'Keefe (1964) 110 CLR 529 (“Shire of Perth”), per Kitto J at 535.

26 Shire of Perth and the other cases relied on by the Applicant are well known authorities establishing that, in general, in determining whether existing use rights apply a broad, genus based approach is followed and the use is not to be confined to the separate individual activities which occur on the land which fall within that genus. In Shire of Perth Kitto J (at 535) differentiated between the precise manner of use for a purpose and the use generally for a purpose.

27 In Boyts Radio Kirby P set out the following principles for defining existing uses at 59:

1. Defining the "existing use" depends upon a detailed examination of the facts of each case. Inevitably there will be borderline cases where the characterisation of the use which is protected will be controversial and upon which minds may differ.

2. Nevertheless, the general approach to be taken is one of construing the "use" broadly. It is to be construed liberally such that confining the user to precise activity is not required. What is required is the determination of the appropriate genus which best describes the activities in question.

3. In determining that genus, attention should be focused on the purpose for which the determination is being made. This is a town planning purpose. It therefore considers the use from the perspective of the impact of the use on the neighbourhood. This is because the regulation of the use within the neighbourhood is the general purpose for which planning law is provided.

28 In Royal Agricultural Society McHugh JA held at 310 that:

...a test has been devised which requires the purpose of the use of land to be described only at that level of generality which is necessary and sufficient to cover the individual activities, transactions and processes carried on at the relevant date. Thus the test is not so narrow that it requires characterisation of purpose in terms of the detailed activities, transactions or processes which have taken place. But it is not so general that the characterisation can embrace activities, transactions or processes which differ in kind from the use which the activities etc as a class have made of the land ....

The above cases are commonly referred to in existing use cases to support a broad approach to defining a “use”.

29 The facts in Shire of Perth and Royal Agricultural Society differ from those here in that these cases did not involve the construction of a lawful purpose based on a development consent. Shire of Perth concerned land which it was agreed was being used, in circumstances where no development consent was required for that use, for the “purpose of pottery making” as at the relevant date. Similarly, Royal Agricultural Society concerned land which the Court held the evidence showed had been used, in circumstances where no development consent was required for that use, for the purpose of a showground and speedway as at the relevant date. Accordingly, I consider these cases of little assistance to the issue of how the development consent is to be construed.

30 While ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 64 LGRA 177 (“Fat-Sel”) and Boyts Radio were concerned with development consents which were argued to ground existing use rights, none of the consents considered in these cases contained a specific prohibition of the type contained in condition (d). Fat-Sel concerned land which the evidence showed had been used for the purpose of receiving, storing and processing grease traps as at the relevant date and the applicants argued that this use was covered by a development consent granted by the council in 1964. In Boyts Radio, while the “clear inference was that … the Council gave consent to the use of the premises as … a ‘warehouse’” prior to the relevant date in that case (per Kirby J at 53), the Council records had been destroyed. Accordingly, the Court could not construe this consent to determine the scope of the lawful purpose and merely concluded, on the basis of the uses to which the land had been put, that the consent was “without qualification or specification as to particular goods” (per Kirby J at 65) which could be stored in the warehouse.

31 On first reading, House of Peace would also appear to potentially favour the Applicant’s case. In House of Peace the Court of Appeal held that the broad approach to characterisation of use should be followed in relation to the construction of development consents which are relied upon as establishing a species of existing use rights. Mason P, who gave the judgment of the Court, referred to the approach of Kirby P in Fat-Sel where he considered the Court must determine objectively what the Council intended in giving consent before stating at [37] that the consent must be interpreted according to its written terms. The reason for adopting this approach was stated by Mason P at [41] as follows:

The enduring nature of a development consent encourages a fair but liberal reading of the rights it confers upon a landowner who may spend considerable money in acting upon it and who is likely to wish to sell the land sooner or later.

32 While I am, of course, bound by the reasoning of the Court of Appeal there appears to be little scope for a liberal construction of the 1954 development consent given the very clear prohibition in condition (d). In this regard I note that in House of Peace the Court of Appeal was required to interpret the word “church” within the context of a development consent, an issue which, unlike the prohibition in condition (d), was not self-evidently clear.

33 I agree with the Council’s submission that the principle that the “lawful purpose” is to be construed broadly at a genus level has no operation where, as here there is a development consent which defines the lawful use and it is this development consent on which the lawful purpose referred to in s 106 must be based. Rather, it is the terms of the development consent itself which must be construed to determine what is the lawful purpose authorised by the development consent. Support for this approach is found in Steedman v Baulkham Hills Shire Council (No 2) (1992-3) 31 NSWLR 562 (“Steedman”) and RCM Constructions. In Steedman Kirby P, who gave the leading judgment of the Court, held at 569 that the use for a lawful purpose must be shown to be a lawful use:

I take “unlawfully commenced” to mean that, at the time the activity said to constitute the use began, such a use or purpose was either: (i) prohibited; or (ii) permissible only with consent, and consent had not been granted.

34 In RCM Constructions two separate uses had been carried out on the land, being a use as a sawmill, which was prohibited under the relevant planning instruments, and a use as a timber centre, which was permitted as an industry under the relevant planning instruments. Lloyd J held at [45] that:

If there are multiple independent uses of a site, and neither is subservient to the other, inquiry must be made as to the permissibility of each use: see Hawkesbury Shire Council v Mitchell (1988) 64 LGRA 235 at 238; Doyle v Newcastle City Council (1990) 71 LGRA 55. Industry is a permissible use under the Ryde PSO. Use for the purposes of a sawmill, however, is prohibited. It is well recognised that the permissibility of the genus does not render permissible a specific use that is otherwise prohibited: see Ashfield Municipal Council v The Australian College of Physical Education (1992) 76 LGRA 151 at 156; Egan v Hawkesbury City Council (1993) 79 LGERA 321 at 328; and Berowra RSL v Hornsby Shire Council (2001) 114 LGERA 345 at 355-356. Therefore, the permissible use of “industry” does not alter the prohibition of the specific use for the purposes of sawmilling.

Thus RCM Constructions is authority for the proposition that the purpose for which a development consent was granted cannot be so broadly construed that it includes a prohibited use.

35 I was taken to different documents in the Council’s file by both parties and reliance was placed on various references to both “caravan park” and “tourist caravan park” in those documents. However, given the plain wording of condition (d) of the development consent I do not consider that regard can be, or need be, had to these documents to assist in the construction of the development consent.

36 I agree with the Council that the general principles for determining the scope of an existing use, as set out above at par 26 to 28, cannot overcome the particular circumstance before me where the terms of the use which must underpin the lawful purpose are defined by the development consent. The lawful use of the land prior to 3 May 1974 is defined by the terms of the development consent, including the conditions of that consent. The condition stating that “the caravan park is to be used for accommodating tourists, travellers and other transient persons only and shall not be used, leased or occupied for permanent residence” must prohibit permanent or long term occupation in the sense that such stays are a breach of the development consent.

37 I do not accept the Applicant’s submission that it is open to me to ignore the prohibition on use for permanent residents contained in condition (d) of the development consent in determining what is the “lawful purpose” authorised by that development consent. It is well established that the requirement that the use be “lawful” is not directed at the general law but at the planning law alone: Sydney City Council v Ke-Su Investments Pty Ltd (No 2) (1983) 51 LGRA 186 and Northern Territory Planning Authority v Murray Meats (NT) Pty Ltd (1983) 51 LGRA 158. Failing to comply with the conditions of a development consent is a breach of s76A(1)(b) of the EP&A Act, and thus, is not “lawful” in terms of the planning law. Therefore, I do not think the word “lawful” in s 106 can be read, as the Applicant asserts, so as to include any purpose permitted by the CCPSO, whether or not the terms of the development consent itself permits use for that purpose. Accordingly, the development consent cannot be regarded as authorising the use of the land for the purposes of a “caravan park” if “caravan park” is to be interpreted as including uses prohibited by condition (d).

38 Condition (d) does not provide any guidance as to the length a visitor to the caravan park may stay before they are regarded as being permanent residents. The letter dated 15 January 1954 written by the then owner of the land to the Council seeking consent to establish a “Tourist Caravan Park”, in response to which letter the Council granted the development consent, stated that “Tourists will only be allowed to stay for a maximum term of 3 weeks …”. On 5 July 1965 the Council wrote to the then owner of the land advising that the Caravan Park would be required to comply with certain standards, applicable to all caravan parks within the local government area, and attaching a copy of the applicable standards, including a document entitled “Regulations to be adhered to by the Licensed Person Permitting the site to be occupied”. Condition 9 of the “Regulations to be adhered to by the Licensed Person Permitting”, as amended in 25 August 1965 states that:

(a) The Proprietor shall not allow occupants of overnight vans to remain in the park for a period exceeding one month.
(b) Tourist vans shall not remain on the park for a period exceeding one month.
(c) Where overnight vans are vacated the same occupant shall not be granted overnight occupancy in the park until a period of at least three months has expired unless the Chief Health Inspector is satisfied that they have not been occupying an overnight van for more than one month.

39 In August 1974 the Council adopted a Code for Minimum Standard for Caravan Parks pursuant to s 288A of the Local Government Act 1919. Clause 6 of this code provided that:

(a) The licensee shall not permit any person to occupy the same caravan site for a continuous period exceeding six weeks.

(b) The licensee shall not permit any caravan other than an on-site caravan, to occupy the same site for a continuous period exceeding six weeks.

40 On 25 October 1974 the Council granted a development consent for works to upgrade the caravan park subject to a condition that the “maximum period of occupation per van is to be one month.” It is clear from the above that no consistent test of what amounts to permanent residency in the caravan park has been adopted by the Council either pursuant to condition (d) or otherwise. It is however clear that the notion of permanency involves long term stays of months and years rather than short term stays of weeks.

41 For the above reasons I am of the view that the “lawful purpose” authorised by the development consent is the use of the land for the purpose of a “Tourist Caravan Park”. This lawful purpose does not include the use of the caravan park by permanent residents so that permanent or long term occupation cannot form part of the “lawful purpose”.

(ii) Was a “Use … For a Lawful Purpose” Commenced by the Relevant Date?
The Submissions

42 As set out above, the parties agreed that a caravan park was operating on the land well before the relevant date in May 1974. A number of licences issued by the Council pursuant to s 288A of the Local Government Act 1919 to the operators of the caravan park between 1956 and 1974 indicate that the Council had licensed 200 movable dwellings on the land.

43 The Council argued that the lawful purpose had not been commenced as at 3 May 1974 because the evidence discloses that the use of the land immediately prior to the relevant date, and for many years prior to that date, was contrary to the express prohibition in the development consent on use for permanent residents. According to the Council this has the consequence that no use for a lawful purpose had been commenced as at the relevant date. The Council relied on the following documentary evidence to show that no use for a tourist caravan park had been commenced on the land as at the relevant date as the use at the relevant date was predominantly for permanent residents:

(a) a letter dated 1 June 1971 from L. Earl indicating that the Earl family lived in the caravan park in 1970;
(b) a letter dated 1 June 1971 from Mr Carter indicating that Mr Carter lived in the caravan park for at least a year around 1971;
(c) a letter dated 1 June 1971 from Mrs Dewater indicating that “about 800 people” lived in the caravan park; and
(d) a letter dated 27 September 1972 from Mrs Butler as indicating that children permanently lived in the park;

44 In addition, the Council relied on the affidavit evidence of Mrs Zoe Morgan and Mr Cornelius Koedam. Both Mrs Morgan and Mr Koedam state in their affidavits dated 24 May 2004 that, while residing at the caravan park, they became acquainted with a person known as “Bill”, now deceased, who had lived at the caravan park from the late 1960s to 1999. Mrs Morgan and Mr Koedam state that Bill told them that when he first moved to the caravan park in the late 1960s there were “about 6 other people living on the land” (per Mr Koedam) and “about 8 to 10 sites upon which were caravans that were owned by the people living in them on a permanent basis” (per Mrs Morgan). Mrs Morgan’s affidavit further states that while living at the caravan park she became acquainted with a lady known as “Nancy” and that in May 2004 she had telephoned Nancy, who was then residing in a nursing home in England and has since deceased, in relation to the caravan park. Mrs Morgan’s evidence is that Nancy told her that she, Nancy, had moved to the caravan park in January 1974, at which time there was about 100 caravans at the park, the majority of which were lived in permanently within the caravan park.

45 In the alternative the Council argued that if it was wrong and the evidence was held to show that the use of the land for a tourist caravan park had commenced following the grant of development consent in 1954, that use was abandoned before 3 May 1974 when the predominant use of the land changed from accommodation for “tourists, travellers and other transient persons” to the lease and occupation by and for permanent residents. The Council relied on the same evidence, as set out above, to argue that there is a strong probability that as at 3 May 1974 the predominant use of the park was for permanent residents. The Council argued that the evidence did not show that the two uses being carried out on the land were discrete but rather that the use for the lawful purpose of tourist accommodation was ancillary to, and subsumed by, the unlawful use of the caravan park for the purpose of accommodating permanent residents.

46 The Applicant argued that the use for the purpose of tourist caravan park commenced prior to 3 May 1974 and was still being carried out on that date. The Applicant argued that at all times, from 1954 to date, there was accommodation for tourists available at the park. The Applicant relied on a number of cases including Foodbarn Pty Limited v Solicitor General (1975) 32 LGRA 157 (“Foodbarn”) and Steedman to support its argument that the proportion of that tourist accommodation relative to accommodation for permanent residents does not matter as two separate uses may subsist on the one parcel of land, with neither of the two uses dominating so as to subsume the other. Further the Applicant argued that the fact that one of these two uses, being the use for the purpose of permanent residents, was not authorised by the development consent and is not lawful does not affect the lawfulness of the separate use as a tourist park.

47 The evidence relied on by the Applicant to support its argument that a use for a “lawful purpose” had been commenced as at the relevant date includes:

(a) a number of documents, dated before 3 May 1974 which refer to the caravan park as a “Tourist Caravan Park”, indicating that temporary tourist accommodation was available at the caravan park;
(b) the monthly returns prepared in relation to the caravan park for November – December 1966 which show a number of overnight and short stays by visitors to the caravan park and no stays of longer than 10 days;
(c) various letters, dated prior to the relevant date, from visitors to the caravan park who describe themselves as tourists;
(d) correspondence and a Council report relating to a development application made prior to July 1969 to extend the main building on the land which refers to a Deed executed on 19 November 1954 which, the correspondence indicates, contained a covenant to the effect that the caravan park shall be used only for the purposes of accommodating tourists, travellers and other transients;
(e) a letter from the Council dated 8 June 1971 and the reply to that letter dated 7 July 1971 in which a number of questions are asked and answered in relation to the caravan park’s operation, including the question of “Are tourist vans restricted to stays of less than one month?” to which S.R. Woodland answered “Yes”; and
(f) the fact that “Lansdowne Tourist Caravan Park” was listed in the NRMA Camping Caravanning Directory in 1963, 1969/70 and 1972.

48 The Applicant also relied on the evidence of Malcolm Pallister, contained in his affidavit dated 17 June 2004, who managed the caravan park from about November 1973 until 1978. Mr Pallister’s evidence is that during the entire time he was manager there were about 260 caravan sites at the caravan park and that:

During the entire time that I was at the Park there were a number of vans, which we called the ‘overnight vans’ and which were available for very short term accommodation. People used these vans like they use hotel rooms – they stayed for a night or two, maybe up to a week. The number of ‘overnight vans’ provided at the Park varied over time, but I would estimate that there were up to 40 overnight vans provided at one stage and that there were never less than 20 overnight vans provided.

Not long after I started at the Park, I put an ad in the paper, inviting people to bring their vans to the site, where we would pay them a fee for the use of their vans and then we would rent their vans out to other people. We ended up with between 40 and 80 such vans at the Park at any one time while I was there. These vans were used for short term, temporary or emergency accommodation …generally used by people I would describe as transients …

49 Mr Pallister’s evidence was that the remainder of the van sites at the caravan park were occupied by privately owned vans, being vans in which people were travelling around and in which they had decided to stay at the caravan park for a period. The occupants of these privately owned vans stayed short term if they were holidaying or on a longer term basis. Mr Pallister’s evidence was that:

… I would estimate that, during the time I was at the Park, about half of the total number of sites available at the Park were used by people with their own vans for indefinite periods. This proportion remained pretty much consistent during the entire time I was at the park.

Finding in Relation to Whether a “Use … For a Lawful Purpose” had Commenced by the Relevant Date?

50 The evidence and arguments of the parties were directed to the issue of whether the use as a tourist caravan park had commenced over the whole of the land as at May 1974 and was therefore an existing use at that date.

51 As is clear from the nature of the evidence outlined above, the evidence relied on by both parties is incomplete and relied, in part, on hearsay evidence as attested to in various affidavits. This difficulty is understandable given the length of time which has elapsed since the events about which evidence is being produced occurred and is not uncommon in existing use cases. In Rose Bay Marina Pty Ltd v Minister for Urban Affairs and Planning (2002) 122 LGERA 255 Pearlman J stated at par 48 that while:

….minds might differ and there might be gaps in the history of the site, the Court is entitled to make findings of fact on the balance of probabilities in order to make the necessary determination for the planning purpose which is required.

52 The deponents of two of the affidavits relied on by the parties, Mrs Morgan and Mr Pallister, were not available for cross examination. However the parties elected to have these affidavits read on the basis that no objection to the evidence would be taken and the weight to be attributed to the evidence contained in them was a matter for the Court to consider.

53 The Council argued that the evidence of Mr Pallister should be given little weight as it was contradicted by contemporaneous documents which suggested that the use by permanent residents was much higher than that to which Mr Pallister attested. Evidence relied on in this regard included a letter from the General Manager of Meriton Apartments Pty Limited to the Council in 1986 stating that 95 per cent of the 260 sites were occupied by permanent dwellers.

54 The evidence is clear that the use as a caravan park commenced after 1954 and it was used by both permanent residents and tourist and transient travellers. What is unclear is what was the respective volumes of these types of park users were from 1954 to 1974. Copies of applications made for caravan park licences under the Local Government Act 1919 during this period refer to 200 moveable dwellings being placed on the premises. While the evidence is not particularly definitive either way, some evidence does exist as to the respective volume of particular park users. The monthly returns prepared in relation to the caravan park for November – December 1966 are the only ones which set out the length of time which visitors to the caravan park stayed. As set out above, these monthly returns show a number of overnight and short stays by visitors to the caravan park and no stays of longer than ten days. Mr Pallister’s evidence that at least half the caravans were used for short term stay accommodation is contradicted by contemporaneous records as set out above. Given this and the fact that Mr Pallister was not available for cross-examination I consider I should only give some weight to his evidence. I do not find that 50 percent of the use of the land was necessarily tourist use as at May 1974. However I accept that the evidence suggests that tourists were using the caravan park as at May 1974. What appears most likely is that tourist numbers in the earlier years of the caravan park, in the 1950s and early 1960s, were greater than at the time immediately before 3 May 1974.

Is the Tourist Use Separate?

55 The first issue to resolve on the arguments presented by the parties is whether the two uses of the caravan park, being the tourist use and the use by permanent or long stay residents, constitute separate uses. This question arises because the facilities used by the tourist and permanent caravan park users are and were the same and the use of the caravans is essentially very similar in that both tourists and permanent residents use the caravans for accommodation. The Applicant argued that, as the two uses were indistinguishable the tourist use should be considered to apply across the whole of the land, with the whole being used simply as a caravan park. The Applicant did not attempt to run its case on the basis that the tourist use of the caravan park took place in particular vans or was otherwise confined to a particular section of the caravan park. The Applicant argued that it did not matter that the uses could not be physically distinguished on the site, other than by length of stay, provided that the Applicant could show that tourist use took place in that tourists did stay at the caravan park. There clearly is evidence to this effect. The Council argued that as the two uses were physically indistinguishable they cannot be considered as separate uses, and accordingly, that the Applicant cannot prove that the use ever commenced.

56 The key question for determination is whether the Applicant has to be able to physically identify the tourist use of the caravan park as separate from the use by permanent residents in order to establish that use as a separate use. This precise issue does not appear to have arisen directly in any of the cases relied on, possibly because the circumstances here are unusual in that, owing to condition (d), the use of the caravan park is separated into two uses based on the length of stay only. There is not necessarily any clear physical difference between the short term and long term users of the caravan park on the ground.

57 Given that I have held that permanent or long term occupation cannot form part of the “lawful purpose” authorised by the development consent, a distinction has to be drawn between the uses on the land on the basis of the length of time those staying at the caravan park remain. It also follows that I consider that the tourist use can be considered to be a separate use on the basis of length of stay alone without there being any requirement for the Applicant to demonstrate that that use is physically separated from the use by permanent residents.

Is a Minor Use a Separate Use?

58 On the balance of probabilities the evidence shows that tourist and transient use of the caravan park did commence at the site from 1954 but the level of that use is unknown. It is not clear that this use was a substantial activity as at May 1974. Rather the evidence suggests that it is likely that by the relevant date the predominant use of the park was for permanent residents. Does this then mean that the use of the land as a tourist caravan park cannot be regarded as having commenced as at the relevant date?

59 If the use for tourists is a separate use, it is clear from cases such as Foodbarn and Steedman that even a minor use can be considered as a separate use of land when determining existing use rights. It is useful to set out the often quoted passage of Glass JA in Foodbarn at 160 to 162:

It may be deduced that where a part of the premises is used for a purpose which is subordinate to the purpose which inspires the use of another part, it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being used. Doubtless the same principle would apply where the dominant and servient purposes both relate to the whole and not to separate parts. … Where the whole of the premises is used for two or more purposes none of which subserves the others, it is, in my opinion, irrelevant to inquire which of the multiple purposes is dominant. If any one purpose operating in a way which is independent and not merely incidental to other purposes is prohibited, it is immaterial that it may be overshadowed by the others whether in terms of income generated, space occupied or ratio of staff engaged. The ordinance is nonetheless being disobeyed. We were also referred to Shire of Perth v O’Keefe (1964) 10 LGRA 147, but I do not understand this to be an example of premises being used for a single purpose and the question in debate was whether that use should be defined widely or narrowly in applying the ordinance.
…

… But no countenance is given to a general proposition that, where premises are used for two purposes, that which is not dominant is for planning purposes to be disregarded. … It may be deduced that where a part of the premises is used for a purpose which is subordinate to the purpose which inspires the use of another part, it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being used. Doubtless the same principle would apply where the dominant and servient purposes both relate to the whole and not to separate parts. … Where the whole of the premises is used for two or more purposes none of which subserves the others, it is, in my opinion, irrelevant to inquire which of the multiple purposes is dominant. If any one purpose operating in a way which is independent and not merely incidental to other purposes is prohibited, it is immaterial that it may be overshadowed by the others whether in terms of income generated, space occupied or ratio of staff engaged. The ordinance is nonetheless being disobeyed. …

60 In Baulkham Hills Shire Council v O’Donnell (1990) 69 LGERA 404 (“O’Donnell”) Meagher JA states at 409 to 410 that:

Notwithstanding the principles laid down in Foodbarn, it does not follow that a use which can be said to be ancillary to another use is thereby automatically precluded from being an independent use of the land. It is a question of fact and degree in all the circumstances of the case whether such a result ensues or not. … but when one use of the land is by reason of its nature and extent capable of being an independent use it is not deprived of that quality because it is “ancillary to” or related to, or interdependent with, another use.

61 It is clear from Foodbarn and the other cases relied on by the Applicant that two uses can exist on a site at the same time without one being subsumed by the other. One use may be lawful and one may not.

Was the Tourist Use Subsumed by the Permanent Use as at the Relevant Date?

62 Based on the Council’s arguments, the remaining issue for determination is whether the separate use for tourists became so minor that it was subsumed into the use for permanent residents and became ancillary to that use.

63 The Council essentially argued that no use as a tourist caravan park commenced by May 1974 because there is evidence that, by that date, the bulk of the caravans were being used for permanent accommodation. The tourist use was accordingly subsumed into the use for permanent residents, the latter use being illegal. In the alternative, the Council argued that if I find that the tourist caravan park commenced by May 1974, that use was abandoned prior to May 1974 when the tourist use becomes so minor that it can be regarded as being subsumed into the use of the caravan park for permanent residents.

64 The cases relied on by the parties in relation to this issue, such as Eaton & Sons Pty Limited v The Council of the Shire of Warringah (1972) 129 CLR 270 (“Eaton”) and Steedman, are authority for the general proposition that, where an existing use is physically limited to a portion of land forming part of a single unit, the whole of the land forming that single unit can be regarded as being subject to that existing use right if the whole is held for a purpose associated with the existing use. In Eaton an existing use right for a timber and hardware selling business was held to exist over vacant land which was owned by the applicant and which was not used previously for the storage of wood as there was evidence that the vacant land was being kept for future use as the applicant’s operations required. In Steedman the Court of Appeal applied Foodbarn to find that a use which is minor, but not merely ancillary to another use, is no less a use for the purposes of existing use rights. Stein J had held at first instance that the use of the land for extractive industry was “subsumed” into an ‘incidental or ancillary’ use to the ‘dominant’ use of orcharding or small farming. Kirby J, with whose reasons Meagher JA agreed, held at 575 that:

The question is whether there is room for a principle that a minimal or trivial use is to be disregarded, and if so where the line between “use” for the purpose of the EPAA and minimal use is to be drawn. It is the clear view of this Court that a minor use is not to be ignored simply because it is minor. In Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 (CA), Glass JA said (at 161) that: “it is immaterial that [one use] may be overshadowed by the others whether in terms of income generated space occupied or ratio of staff engaged.”
One might add that it is immaterial that other contrasts of a similar nature might be drawn between the various uses of land. Merely because orcharding was carried out every day (assuming it was) and floaters were cut only occasionally, the conclusion cannot be drawn that the extractive use can be ignored. …
…
The use here, although concededly minor, certainly existed, was real and was not merely ancillary to another “true” use of orcharding or small farming. In the words of Glass JA in Foodbarn, the fact that it was a use overshadowed by others did not make it less a use. The relativities were “immaterial”.

65 These cases, which appear to support the Applicant’s case, concerned circumstances in which there was a clearly identifiable separate, albeit minor, use. As here the uses are not capable of separate physical identification, other than length of stay, I do not find the reasoning in Eaton and Steedman to have much application in this context.

66 Another case relied by the Council was Dosan Pty Limited v Rockdale City Council (2001) 117 LGERA 363 (“Dosan”) as in that case Lloyd J held that an existing use right did not extend over an entire landholding. Dosan concerned whether the applicant had the benefit of existing use rights over a parcel of land which had five buildings on it. Each of the five buildings, and the land associated with each building, had been leased by separate tenants and was used for different purposes by those tenants. Once again the circumstances in Dosan are different to those before me as the uses in that case were clearly identifiable and the land was used for a number of distinct and spatially separated uses. I therefore do not find it to be of great assistance to the Council’s case in the circumstances before me.

67 To accept the Council’s argument that if it can be said that the illegal use for the permanent residents is the dominant use and the lawful tourist use is minor then that latter use is subsumed into the former is contrary to O’Donnell where Meagher JA said at 111 that:

…when one use of the land is by reason of its nature and extent capable of being an independent use it is not deprived of that quality because it is “ancillary to”, or related to, or interdependent with, another use … This is a fortiori the case where the “ancillary” use has predated the use to which it is said to become ancillary and when it has done so in circumstances where it was initially not “ancillary” to any other use.

68 The evidence from the 1950s and 1960s suggests that tourist use was reasonably substantial, although there were also permanent residents in that period also, so that it is difficult to say that the use as a tourist caravan park is not capable of being carried out as an independent use. As stated in O’Donnell this must always be a question of fact and degree determined on the circumstances of each case.

69 The Applicant argued that, provided the use as a caravan park for tourists continues, even to a limited degree, that is sufficient to maintain the existing use entitlement of the Applicant. The authorities support this view. Further, the Applicant argued that, as there was no difference between the caravans used for permanent stay and those used for tourists, any use of the caravan park by tourists could be considered to apply across the whole site. There is evidence that demonstrates that, on the balance of probabilities, tourists stayed at the site from around 1954 up to and beyond 1974. The Applicant bears the onus of establishing, on the balance of probabilities, that it has existing use rights for a tourist caravan park immediately prior to May 1974 and I consider that it has satisfied that onus.

(iii) Was The “Use … For a Lawful Purpose” Abandoned Subsequent to the Relevant Date?
The Submissions

70 The Council relied on Stubberfield v Brisbane City Council (1969) 24 LGERA 286 to support its argument that, as the evidence showed that the lawful use of the caravan park for the purpose of accommodating tourists has been altered or abandoned after the relevant date so that the caravan park is now used predominantly by permanent residents, any existing rights attaching to the land after the relevant date have since been lost.

71 The Council relied on the affidavit of Lester Kelly dated 31 May 2004 and documentary evidence, including the following, to support its argument that the Applicant had abandoned any existing use rights attaching to the land after the relevant date:

(a) a letter from Mr and Mrs Hooley dated May 1977 indicating that, while there were 270 caravan sites at the caravan park a friend had been told by the office that there were 470 caravans currently at the park and that they are “confident that at least 90 of the sites are occupied by permanents”;
(b) a note made by a Council officer regarding an inspection carried out on 30 June 1977 to the effect that “about 80% of vans are permanent”;
(c) a letter from the Applicant to the Council dated 16 December 1986 stating that “the … caravan park contains 275 van sites and has been operating for many years. Of these sites, 95% (260) sites are occupied by permanent dwellers either in owner occupied or park owned vans and this has been the situation since the park opened.”;
(d) the “caravan park licences” granted to the Applicant by the Council pursuant to s 289H of the Local Government Act 1919 (since repealed) for the periods between:
(1) 26 May 1989 to 26 May 1990;
(2) 22 May 1990 to 31 December 1990;
(3) 1 January 1991 to 31 December 1991;
(4) 1 January 1992 to 31 December 1992;
(5) 1 January 1993 to 31 December 1993;
each licence 260 long term sites and 15 short term sites at the caravan park;
(e) the “caravan park licences” granted to the Applicant by the Council pursuant to part F of s 68 of the Local Government Act 1993 for the periods between:
(1) 1 January 1994 to 31 December 1994;
(2) 1 January 1995 to 31 December 1995;
(3) 1 January 1996 to 31 December 1996;
each licence 260 long term sites and 15 short term sites at the caravan park; and
(f) the “caravan park licence” granted to the Applicant by the Council pursuant to part F of s 68 of the Local Government Act 1993 for the period between 1 January 1997 to 31 December 1997 licences 251 long term sites and 15 short term sites at the caravan park;
(g) the “caravan park licence” granted to the Applicant by the Council pursuant to part F of s 68 of the Local Government Act 1993 for the period between 1 January 1998 to 31 December 1998 licences 267 long term sites and 5 short term sites at the caravan park;
(h) the “caravan park licences” granted to the Applicant by the Council pursuant to part F of s 68 of the Local Government Act 1993 for the periods between:
(1) 1 January 1999 to 31 December 1999;
(2) 1 January 2000 to 31 December 2000;
each licence 268 long term sites and 5 short term sites at the caravan park; and
(i) the “caravan park licences” granted to the Applicant by the Council pursuant to part F of s 68 of the Local Government Act 1993 for the periods between:
(1) 1 January 2002 to 31 December 2002; and
(2) 1 January 2003 to 31 December 2003;
each licence 265 long term sites and 8 short term sites at the caravan park.

72 The affidavit evidence of Mr Kelly was that he attended the caravan park in 1978, seeking to rent a caravan to live in permanently and was told that such a caravan was available. Mr Kelly then proceeded to live in a caravan located on the land for about one year before leaving the caravan park. In 1982 Mr Kelly returned to the caravan park, this time bringing with him his own caravan, and stayed in his own caravan at the caravan park until 1993. During 1993 Mr Kelly, who still resides at the caravan park, sold his caravan and moved back into a rented caravan. During the time Mr Kelly was at the caravan park he observed that the majority of other residents in the caravan park resided there for continuous periods exceeding many months and, in some cases, years.

73 The Applicant argued that the evidence, including that relied on by the Council, showed that the caravan park had been used continually since the relevant date in May 1974 for the purpose of accommodating tourists as well as permanent residents. The Applicants argued that even if the proportion of permanent residents versus tourists has varied over the years, such a variation in the detail of the use does not involve a change in the nature of the existing use or constitute an abandonment of the use of the land as a tourist park.

Finding in Relation to Abandonment After the Relevant Date

74 It is clear from the evidence that, as stated in the written submissions prepared on behalf of the Council, from at least 1989 the overwhelming number of the caravan sites located on the land were used for long term accommodation, with only 15 or fewer out of some 269 being used for short term accommodation. The caravan park licences granted to the Applicant by the Council pursuant to part F of s 68 of the Local Government Act 1993 indicate that in 1998 267 long term and 5 short term were licensed while in 2003, 265 long term and 8 short term sites were licensed. While there is no evidence as to the actual use of the sites licensed during these periods, the clear inference is that short term or tourist stays formed a very small part of the activity carried out on the land.

75 I have held that the tourist use of the land constituted a separate use of the land up to 1974. The Council bears the onus of establishing on the balance of probabilities that the existing use has been abandoned. Under s 107 of the EP&A Act an existing use is deemed to be abandoned if it ceases to be actually so used for a continuous period of 12 months so that it is only if the use has entirely stopped for one year that the Applicant bears the onus of showing that the use has not been abandoned. In order for the Council to successfully argue that the existing use has been abandoned it must show that the use as a tourist park has stopped or has become so minor that it has been subsumed into the use of the park for permanent residents for at least one year so that it cannot be considered as a separate use. I have already held in the previous section at par 69 that provided a minor use can be considered separate then the authorities support a finding that it has not been subsumed into another use.

76 In Hudak v. Waverley Municipal Council (1990) 70 LGRA 130 (“Hudak”) Mahoney JA held at 134 that:

Abandonment ordinarily involves, at least as one part of the concept, that, at the relevant date, the land was being used for the purpose claimed as the existing use and that that use has subsequently been given up or has ceased. It is not necessary to attempt an exhaustive definition of "abandonment" in this provision, but it will ordinarily involve that the owner intends that the use of the land for the existing purpose use, or the right to use it, be given up or that he have the intention to do something which is inconsistent with its continuance. …

77 Further Hope JA stated in Hudak at 137 to 138 that:

As it seems to me, it is necessary to have regard to the whole of the circumstances, including the subjective intention of the relevant person, and to determine whether in the light of all those matters the cessation of actual use proved by the facts is outweighed by an asserted subjective intention to continue the use. Where there continues to be activity designed to continue a non-conforming use as was the case in Woollahra Municipal Council v Banool and Woollahra Municipal Council v TAJJ Investments Pty Ltd, and the length of cessation of actual use is not very long, it may be easy enough to conclude that there has been no abandonment. If however years go by without actual use and particularly where the factor said to be delaying a resumption of the existing use is something of an indefinite character, such as winning the lottery, there would be little difficulty in concluding that the cessation of use for a similar period of time involved an abandonment.

78 The cases make it clear that intention continues to be relevant where the use is not currently being exploited. By extrapolation, I consider that Meriton’s intention to continue the use is relevant where, as here, the use has dwindled to become minor.

79 Cases such as Hudak and Woollahra Municipal Council v Banool Developments Pty Ltd (1973) 129 CLR 138 and Woollahra Municipal Council v TAJJ Investments Pty Ltd (1982) 49 LGRA 123 make it clear that a finding that an existing use has been abandoned is not lightly made. Even the total cessation of a use for a short period will not constitute abandonment of that use in circumstances where it is intended that the use be continued in some way in the future.

80 It is clear from the evidence that Meriton purchased the land in 1973 with the intention of continuing the existing use of the land before ultimately seeking consent to change that use to another use. Given this intention, coupled with the fact that the land continued to be used, albeit in a minor way, for the purpose of accommodating short term visitors, I do not consider that the Council has demonstrated that the Applicant has abandoned the existing use of a tourist caravan park.

81 In light of my findings above I answer the question posed in the Notice of Motion filed by the Council as follows:

There is an existing use of the land subject of these proceedings (“the land”), as defined in s 106 of the Environmental Planning and Assessment Act 1979,which would permit the grant of consent to use the allotments proposed to be created for the purpose of dwellings and/or dwelling houses or any other form of residential development.