Najask Pty Limited v Palerang Council

[2008] NSWLEC 160

Land and Environment Court

of New South Wales

CITATION:

Najask Pty Limited v Palerang Council [2008] NSWLEC 160

PARTIES:

APPLICANT:
Najask Pty Limited

RESPONDENT:
Palerang Council

FILE NUMBER(S):

10362 of 2007

CORAM:

Lloyd J

KEY ISSUES:

Appeal - Question of Law :- under 56A of the Land and Environment Court Act - tourist facilities - caravan park - permanent accommodation or occupancy - rural residential zone - whether prohibited or permissible use - construction of environmental planning instruments - existing use rights - wrong conclusion - error does not materially affect the ultimate decision - proposed use is prohibited - appeal is dismissed

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 ss 36(1)(a), 76A, 106, 107(2)(b)
Environmental Planning and Assessment Regulation 2000 reg 42
Land and Environment Court Act 1979 s 56A
Local Government Act 1993
State Environmental Planning Policy No. 21 cll 4, 5(1), 6, 7, 8(1), 10
Yarrowlumbla Local Environmental Plan 2002 cl 11

CASES CITED:

Burwood Municipal Council v Aboriginal Hostels Ltd (1979) 30 LGRA 150
Peter Duffield and Associates Pty Ltd v Canada Bay City Council (2002) 124 LGERA 349
Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270
Foster v Sutherland Shire Council (2001) 115 LGERA 130
Guideline Drafting & Design Pty Ltd v Marrickville Municipal Council (1988) 64 LGRA 275
KJD York Management Services Pty Ltd v City of Sydney Council (2006) 148 LGERA 117
Mackenzie v Warringah Council (2003) 124 LGERA 208
Minister for Immigration v Thiyagarajah (2000) 199 CLR 343
North Sydney Municipal Council v Sydney Serviced Apartments Pty Ltd (1990) 21 NSWLR 532
Pettitt v Dunkley [1971] 1 NSWLR 376
Potter v Minahan (1908) 7 CLR 277
Steedman v Baulkham Hills Shire Council (1991) 87 LGERA 26

DATES OF HEARING:

27 March 2008

 
DATE OF JUDGMENT: 

6 May 2008

LEGAL REPRESENTATIVES:

APPLICANT:
T F Robertson SC
SOLICITORS:
Pike Pike & Fenwick

RESPONDENT:
J E Robson SC
SOLICITORS:
Minter Ellison

JUDGMENT:

- 13 -

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Lloyd J

Tuesday, 6 May 2008

LEC No. 10362 of 2007

NAJASK PTY LIMITED v PALERANG COUNCIL[2008] NSWLEC 160

JUDGMENT

Introduction

1 HIS HONOUR: In Bidges Road, Sutton (near Canberra) there is an existing caravan park, Capital Country Holiday Village (formerly known as White Ibis Tourist Park), which was approved by this Court on 18 August 1986 as a tourist village. There were two subsequent approvals for extension of the park.

2 On 15 February 2005, the owner applied to further extend the park by the provision of an additional 159 long-term manufactured dwelling sites. The parties agree that these were intended for occupation on a permanent basis. The council refused the application. The applicant’s appeal to the Court was dismissed by Commissioner K Hoffman, who held that the proposal was not permissible. The applicant now appeals against the decision of the commissioner, alleging the following errors of law:

(i) Finding that the proposed use is prohibited.

(ii) Failing to find that State Environmental Planning Policy No. 21 - Caravan Parks (“SEPP No. 21”) expanded the permissible use of the caravan park.

(iii) Failing to provide adequate reasons for his conclusion that existing use rights do not apply to the land.

(iv) Misconstruing s 107(2)(b) of the Environmental Planning and Assessment Act 1979 and reg 42 of the Environmental Planning and Assessment Regulation 2000 by confusing the land on which the existing use is carried out with the land which is actually physically being used.

Grounds (i) and (ii) - the question of permissibility

3 The subject land is zoned 1(d) Rural Residential under the Yarrowlumbla Local Environmental Plan 2002 (“the LEP”). Clause 11 of that instrument sets out what development is allowed or prohibited by the zoning. Caravan parks and manufactured home estates are prohibited. Tourist facilities are permissible with consent. The relevant definitions in the LEP are as follows:

caravan park means land (including a camping ground, but not a primitive camping ground) on which caravans or other moveable dwelling are located
...
manufactured home means a self-contained dwelling (that includes at least one kitchen, bathroom, bedroom and living area and also includes toilet and laundry facilities), being a dwelling:
(a) that comprises one or more major sections that are each constructed, and assembled, away from a manufactured home estate and transported to the estate for installation on the estate, and
(b) that is not capable of being registered under the Road Transport (Vehicle Registration) Act 1997 .
....
tourist facility means an establishment providing for holiday accommodation or recreation and may include a boatshed, boat handling facilities, camping ground, caravan park, holiday cabins, hotel, houseboat, marina, motel, playground, refreshment room, water sport facilities or a club used in conjunction with any tourist activities.

4 The applicant relied below, and again in this appeal, on SEPP No. 21, which prevails to the extent of any inconsistency with another environmental planning instrument: cl 5(1) of SEPP No. 21 and s 36(1)(a) of the Environmental Planning and Assessment Act 1979 (“the Act”). Clause 7 of SEPP No. 21 states:

7 Application of certain planning controls to places licensed for movable dwellings
In any environmental planning instrument (whether made before or after this Policy), references (however expressed) to caravan parks or to camping grounds, or to caravan parks and camping grounds, include references to caravan parks, within the meaning of this Policy.

5 Clause 6 of SEPP No. 21 contains the following definitions:

caravan park means land (including a camping ground) on which caravans (or caravans and other moveable dwellings) are, or are to be, installed or placed
moveable dwelling has the same meaning as it has in the Local Government Act 1993

6 The Local Government Act 1993 defines “moveable dwelling” as including a manufactured home. The definition of “manufactured home” in the Local Government Act 1993 is not materially different from the definition in the LEP. By dint of cl 7 of SEPP No. 21, these definitions apply to the LEP. Moreover, the reference in cl 7 to “however expressed” to caravan parks must necessarily include the reference to caravan parks in the definition of “tourist facility” in the LEP.

7 The commissioner decided that the proposal was prohibited under the LEP and he must be taken to have decided, although he did not reveal his reasoning process, that SEPP No. 21 did not alter that position.

8 Mr T F Robertson SC, appearing for the applicant, submits that SEPP No. 21 does, however, alter the position and it does so in such a way as to make the proposal permissible.

9 Mr Robertson relies upon the importation of the definition of “caravan park” into the definition of “tourist facility” in the LEP, together with the incorporation by reference of the definition of “moveable dwelling” in the Local Government Act 1993. Mr Robertson then points to the critical words of “dwelling” and “home” in these definitions, which import a significant degree of permanency of habitation or occupancy. In support of this proposition reference was made to Burwood Municipal Council v Aboriginal Hostels Ltd (1979) 30 LGRA 150 at 153; North Sydney Municipal Council v Sydney Serviced Apartments Pty Ltd (1990) 21 NSWLR 532 at 538; Mackenzie v Warringah Council (2003) 124 LGERA 208, Peter Duffield and Associates Pty Ltd v Canada Bay City Council (2002) 124 LGERA 349; Foster v Sutherland Shire Council (2001) 115 LGERA 130; and by analogy to Potter v Minahan (1908) 7 CLR 277 and KJD York Management Services Pty Ltd v City of Sydney Council (2006) 148 LGERA 117. I agree that the definition of “caravan park”, together with the incorporation by reference of the definition of “moveable dwelling” in the Local Government Act 1993, imports a degree of permanency of habitation or occupancy, which is fully supported by the cited authorities.

10 The submission then focuses on the permissible category of development, defined as “tourist facility” in the LEP: the incorporation of “caravan park” into that definition is to expand the permissible use of a caravan park for tourist accommodation to include land on which moveable dwellings are or are to be installed or placed as a place of residence or abode or continued or habitual residence. The submission acknowledges a contradiction between the limitation on the use of caravan parks for tourist purposes in the LEP and the expansion of that use in SEPP No. 21 to include permanent residents in moveable dwellings, but that contradiction is said to be resolved by the inconsistency clause in SEPP No. 21 (cl 5(1)), aided by s 36(1) of the Act, by treating the restriction as ineffective.

11 Mr Robertson submits that the definition in SEPP No. 21 only applies where there are both caravans and moveable dwellings, or caravans alone: cl 6 of SEPP No. 21. The definition in the LEP is different: a caravan park may be comprised solely of moveable dwellings. Accordingly, a category of caravan park under the LEP comprising solely of moveable dwellings may fall in the prohibition within the zone, but the other categories of caravan parks (comprising caravans, or caravans and moveable dwellings) are permissible with consent by dint of SEPP No. 21.

12 Mr Robertson further submits that cl 10(b) of SEPP No. 21 is strongly suggestive that the maker of that instrument intended that potential conflicts between tourist and residential uses be resolved as a matter of merit rather than pre-emptively by the application of a zoning provision in a local environmental planning instrument. Clause 10 sets out the matters to be considered by a consent authority before it can grant consent required by the Policy. These matters include “whether there is adequate provision for tourist accommodation in the locality of that land, and whether existing or potential tourist accommodation will be displaced by the use of sites for long term residence”. Mr Robertson submits that cl 10 of the Policy is completely inconsistent with the proposition, embraced by the commissioner, that a tourist caravan park is permissible but any residential use of it was not.

13 There is, however, in my opinion, a simple answer to these submissions. The answer turns on the definition of “tourist facility” in the LEP, which means “an establishment providing for holiday accommodation or recreation and may include a... caravan park [etc]”. That is, caravan parks are prohibited, except where they are part of a tourist facility. A caravan park for tourist accommodation is permissible whereas other caravan parks are not. There is no relevant inconsistency here between the LEP and SEPP No. 21. Notwithstanding the importation of the definition of “caravan park” in SEPP No. 21 into the LEP, the controlling words of the definition are “an establishment providing for holiday accommodation or recreation”. That is, the caravan park component of any tourist facility must be “an establishment providing for holiday accommodation or recreation”. In another way, it is only a particular kind of caravan park which is permissible within the 1(d) Rural Residential zone, namely, one that provides for holiday accommodation or recreation. A caravan park that provides permanent accommodation for residents is not such a caravan park.

14 Mr Robertson next relies upon the principal submission before the commissioner, to the effect that cl 8(1) of SEPP No. 21 engages s 76A(1) of the Act and makes caravan parks (as defined in the SEPP No. 21) permissible notwithstanding that the LEP prohibits a category of them.

15 Section 76A(1) of the Act states:

If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless:
(a) such a consent has been obtained and is in force, and
(b) the development is carried out in accordance with the consent and the instrument.

16 Clause 8(1) of SEPP No. 21 states:

Development for the purposes of a caravan park may be carried out only with the development consent of the Council.

17 According to the submission, s 76A is engaged if an environmental planning instrument provides that specified development may not be carried out except with development consent. Clause 8(1) of SEPP No. 21 provides that development for the purpose of a caravan park may be carried out only with the development consent of the council. That provision is to the same effect as s 76A(1). It refers to specific development, and its use of the affirmative expression carries with it a negative corollary - development may not be carried out for that purpose without consent - to the same effect as the conditional prohibition in s 76(1). That it applies to development on land where the caravan park is otherwise prohibited is clear from cl 4, which applies the Policy to all land in the State that is within a local government area. The other provisions of SEPP No. 21, which contain comprehensive considerations for determining development applications concerning caravan parks and extend to matters usually considered at a zoning stage - see cl 10(a), (b) and (c) - are also relevant in determining whether it was intended to apply, by dint of the inconsistency clause, notwithstanding that caravan parks are prohibited by local environmental plans in particular zones.

18 Clause 10 states that the council may grant a development consent required by the Policy after it has considered: (a) whether, because of its location or character, the land concerned is particularly suitable for use as a caravan park for tourists or for long-term residence; (b) whether there is adequate provision for tourist accommodation in the locality of that land and whether existing or potential tourist accommodation will be displaced by the use of sites for long-term residence; and (c) whether there is adequate low-cost housing or land available for low-cost housing in that locality.

19 As noted in par [7] above, the commissioner decided that the proposal was prohibited under the LEP and he must be taken to have decided - although he did not express his reasoning process - that SEPP No. 21 did not alter that position.

20 I am unable to accept the submission. There is no inconsistency between the prohibition in the LEP and SEPP No. 21. All that cl 8(1) of the SEPP No. 21 does, is to require the development consent of the council where a local environmental plan otherwise enables the development of caravan parks to be carried out without consent. In this zone, however, caravan parks are prohibited unless they are tourist facilities. An acceptance of the submission would mean that caravan parks may be developed anywhere at all - that is, everywhere - irrespective of the zoning provisions of a local environmental plan.

21 The commissioner was correct in deciding that the proposal is prohibited under the LEP and that SEPP No. 21 does not alter the position. Although the commissioner did not express his reasons - and a failure to give reasons is an error of law (Pettitt v Dunkley [1971] 1 NSWLR 376) - the error will only vitiate the decision if it materially affects the ultimate decision (Guideline Drafting & Design Pty Ltd v Marrickville Municipal Council (1988) 64 LGRA 275, Minister for Immigration v Thiyagarajah (2000) 199 CLR 343). Since the commissioner’s ultimate decision was correct, I find that this ground of appeal fails.

Grounds (i), (iii) and (iv) - the question of existing use rights

22 The evidence before the commissioner on the question of existing use rights was relevantly as follows.

23 On 18 April 1986, this Court granted development consent for a “tourist village in accordance with the plans, and in accordance with the details in the report of Victoria Grounds, lodged with Development Application...”.

24 On 22 July 1888, the Court granted development consent for amendments to the amenities building.

25 On 13 December 1988, the council issued a caravan park licence under s 289H of the Local Government Act 1919 for a period of twelve months.

26 On 11 July 1989, the council resolved to grant development consent for an increase in the percentage of long-term residence sites from 10 per cent to 33 1/3 per cent - a total of 50 sites.

27 On 20 July 1989, the council issued a licence under s 289H of the Local Government Act 1919 for, inter alia, 50 long-term sites.

28 On 25 June 1993, Yarrowlumla Local Environmental Plan 1993 commenced. The subject land was zoned 1(a) General Rural. Both tourist facilities and caravan parks were permissible with development consent.

29 On 22 June 1994, the council issued an amended approval under s 68 of the Local Government Act 1993 to operate the caravan park. The terms of the approval include the provision of 50 long-term residence sites. (The approval was renewed on 7 February 1995, 16 March 2000 and 30 January 2001).

30 On 7 March 1998, an amendment was made to the LEP which rezoned the subject land from 1(a) General Rural to 1(d1) Rural Residential, within which zone caravan parks were a prohibited use, but tourist facilities were permissible with development consent.

31 On 22 June 2002, Yarrowlumla Local Environmental Plan 2002 commenced, in which the subject land was rezoned to 1(d) Rural Residential, within which zone caravan parks remained prohibited and tourist facilities remained permissible with development consent.

32 The commissioner concluded that the existing “permanent residence sites” must have been lawful at the time they became prohibited (upon the commencement of the rezoning of the land to 1(d1) Rural Residential on 7 March 1998) and they thus had existing use rights. The commissioner said that the question then became whether that enabled the addition of new permanent residence sites to the whole of the land, or whether they were restricted to the land on which they existed. After noting the competing submissions the commissioner concluded - again without giving reasons for so concluding - that the proposal had existing use rights only for the land within the property upon which the use had been carried out since it became prohibited.

33 Mr Robertson submits that the proposed development affects land which was incorporated in the land having the benefit of the original consent. The unoccupied part of the site - specifically the area the subject of the present application - was available for use by the occupants. No finding was made by the commissioner on this question. Existing uses commonly extend to land held in reserve for future use (citing Steedman v Baulkham Hills Shire Council (1991) 87 LGERA 26 and Eaton & Sons Pty Ltd v Warringah Council (1972) 129 CLR 270), although any expansion of use beyond that area required consent under reg 42 of the Environmental Planning and Assessment Regulation 2000. Since the commissioner provides no reasoning process and no clear finding of fact for his conclusion, an error of law arises.

34 Mr J E Robson SC, appearing for the council, submits that insofar as the commissioner found that the existing development had existing use rights, he was in error. The evidence does not establish that long-stay use was lawful when an environmental planning instrument having the effect of prohibiting the use commenced. Permanent residency has been prohibited at all relevant times since 7 March 1998, when the land was rezoned in such a way as to make caravan parks a prohibited use.

35 I agree with Mr Robson’s submissions. Any development for the purpose of tourist facilities remains permissible with consent and so does not satisfy the definition of an existing use: s 106 of the Act. Those development consents which were granted before 7 March 1998 do not amount to the grant of consent for a caravan park or a caravan park with long-stay residency.

36 The consent granted by the Court on 18 August 1986 was, as noted in par [23] above, for “a tourist village in accordance with the plans and in accordance with the details in the report of Victoria Grounds, lodged with Development Application...”. The report of Victoria Grounds thus became part of that consent. That report relevantly states as follows:

The accommodation to be provided comprises 30 drive-through caravan sites, 100 back-in caravan sites, 20 mobile home sites, 25 tent camping sites and a manager’s residence. Each site (other than tent camping) will be serviced with cold water, electricity and drainage; each back-in and mobile home site will also have its own sewer connection.

...

A review of similar tourist resorts in the ACT and in coastal regions of NSW and Queensland has revealed that there is a growing demand for permanent rental of caravan and mobile-home sites, particularly by retired people and people with young families. These two groups typically rent sites on an annual basis and keep their accommodation vehicle permanently parked there, which they use during school holidays, on week-ends or on long visits away from their main domicile.

The long-stay sites and mobile home sites have been designed to meet this type of demand: ....

37 It can be seen from this that the consent does not extend to allow the occupation of any site on a permanent basis, the occupants having a main domicile elsewhere.

38 The consent granted by the Court of 22 July 1988 was a change of design of the services and amenities building. Two conditions of the consent are relevant:

47. The caravan park is to be divided into two sections as being for long-term and short-term residences with the category for long-term residencies not occupying more than half the sites. A plan is to be submitted for Council’s records with sites numbered with the application for licensing.

48. This approval is subject to compliance with all conditions set out in Development Consent No. D10/86.

39 The reference to all the conditions set out in Development Consent D10/86, being the consent granted by the Court on 18 August 1986, includes the requirement that the development be in accordance with the report of Victoria Grounds. It follows that the reference to long-term residencies is a reference to the long-stay sites described in that report and not to the occupation of any site on a permanent basis.

40 On 11 July 1989, the council resolved that the development consent be granted to an increase in the percentage of long-term resident sites from 10 per cent to 33 1/3 per cent. The resolution was notified to the applicant by letter dated 19 July 1989 in the following terms:

Council has resolved to increase the number of long-term residences on the site from 15 to 50.

41 Again, this does not amount to a consent to the occupation of any site on a permanent basis.

42 Similarly, the various licences issued under s 289H of the Local Government Act 1919 and the approvals issued under s 68 of the Local Government Act 1993, which in turn refer to the number of sites for long-term residence, do not amount to development consent for the occupation of these site on a permanent basis.

43 Accordingly, the commissioner was in error in holding, as he apparently did, that the existing development had existing use rights. The question of the physical extent of any such rights and their extension to the whole of the land was irrelevant.

44 The commissioner’s conclusion that the proposal is prohibited is correct, although he reached that conclusion for the wrong reasons. Although the commissioner’s reasons were wrong, and thus give rise to an error of law, the error does not materially affect the ultimate decision. The proposal remains prohibited. It follows that the appeal must be dismissed.

Orders

45 The formal orders of the Court are:

(1) The appeal is dismissed.

(2) The applicant must pay the respondent’s costs of the appeal.

I hereby certify that the preceding 45 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

Associate

Dated: 6 May 2008


**********