APPLICANT Jeffrey Joseph Sansom RESPONDENT Port Stephens Council
FILE NUMBER(S):
10155 of 2006
CORAM:
Pain J
KEY ISSUES:
Question of Law :- Refusal of development application for change of use - meaning of "tourist facility", "commercial premises" and "warehouse" in Port Stephens Local Environmental Plan 2000 - meaning of "accommodation"
LEGISLATION CITED:
Port Stephens Local Environmental Plan 2000 Supreme Court Rules 1970 Pt 31 r 2
APPLICANT Jeff Kildea (Barrister) SOLICITORS Thompson Norrie Solicitors
RESPONDENT John Maston (Barrister) SOLICITORS Sparke Helmore
JUDGMENT:
THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES
Pain J
1 August 2006
10155 of 2006 Jeffrey Joseph Sansom v Port Stephens Council
EX TEMPORE JUDGMENT
1 Her Honour: Before me today is a preliminary question of law in these Class 1 proceedings in the following terms:
Whether development for the purpose of the storage of caravans and boats on the property known as 290 Nelson Bay Road, Salt Ash, Lot 2 DP 818198, is prohibited within the Rural 1(a) Zone under the Port Stephens LEP 2000.
2 The determination of separate questions of law is provided for by Part 31 r 2 of the Supreme Court Rules 1970. As Jagot J observed in Metropolitan Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2006] NSWLEC 57 at [12], care must be taken to ensure that a question posed by parties to litigation is appropriate for separate determination as a preliminary matter. There must be a clear definition of the point of law to be raised and it must be clear that the determination of the separate question is beneficial to the conduct of the proceedings. I consider that the parties have raised a distinct question of law which may be applied to an agreed set of facts about which there is no dispute. If this question is determined against the Applicant the appeal will be at an end. I consider this is a question of law which it is appropriate to consider on a preliminary basis.
3 The statement of agreed facts filed by the parties states that on or about 19 August 2001, Development Application No 16-2001-1162-1 (“the DA”) was lodged with the Council by the Applicant in respect of part of the property known as 290 Nelson Bay Road, Salt Ash, Lot 2 DP 818187 comprising the wood and iron shed, access-way and building apron (“the property”).
4 The…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Sansom v Port Stephens Council [2006] NSWLEC 475
Case
[2006] NSWLEC 475
Decision Date
CaseChat Overview and Summary
In this case, the applicant, Jeffrey Joseph Sansom, appealed against the respondent, Port Stephens Council's, decision to refuse a development application for a change of use of property at 290 Nelson Bay Road, Salt Ash. The applicant sought to change the use of the property from a rural heritage and farm museum to the recreational storage of caravans and boats. The central legal issue was whether the proposed development constituted a "tourist facility" as defined in the Port Stephens Local Environmental Plan 2000 (LEP), or if it was a prohibited "commercial premise" or "warehouse" within the Rural 1(a) zone. The applicant argued that the proposed use was a tourist facility, while the council contended that it was a commercial premise or a warehouse.
The Court considered the definitions of "tourist facility," "commercial premises," and "warehouse" as outlined in the LEP. The Court found that the term "accommodation" in the definition of "tourist facility" did not have a broad meaning, but rather meant "lodging for persons," in line with its common usage in a planning context. The Court also determined that the term "providing primarily for" in the definition of "tourist facility" meant that the tourist recreation activity must take place on the land subject to the development application. As the primary use of the land in question was for the storage of boats and caravans, which were taken elsewhere by their owners, the Court concluded that the proposed use did not fall within the definition of "tourist facility" and was, in fact, a "commercial premise." Therefore, the proposed development was prohibited within the Rural 1(a) zone under the Port Stephens LEP 2000.
As a result of the Court's decision, the appeal was dismissed, and the development application was refused by the Council. The final orders were that the applicant pay the costs of the hearing.