Sgro v Greater Taree Council

Case •

[2014] NSWLEC 1113

•

16 June 2014

Land and Environment Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Sgro v Greater Taree Council [2014] NSWLEC 1113
Hearing dates:3, 4 and 5 March 2014
Decision date: 16 June 2014
Jurisdiction:Class 1
Before: Dixon C
Decision:

1.Appeal upheld.

2.Development consent is granted to Development Application 174/2012 in accordance with the plans and subject to the conditions in Exhibit J.

3.The Council is directed to file an electronic version of the conditions of consent with the Court within 7 days of the date of this judgment.

4.The Exhibits are returned to the parties apart from Exhibits 1 and J.

Catchwords: Development Application -existing use rights -caravan park (with repair/sales) and service station (convenience store/ refreshment rooms)- the meaning of "the land " for the purposes of cl 45(b) of the Environmental Planning and Assessment Regulation 2000
Legislation Cited: Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Greater Taree Local Environmental Plan 2010
Cases Cited: North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd (1988) 16 NSWLR 50 at 59
Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGERA 305 at 310
Scully v Leichhardt Council (1994) 85 LGERA 109 at 111).
Category:Principal judgment
Parties: Joseph Sgro (Applicant)
Greater Taree Council (Respondent)
Representation: Mr C McEwen SC with Mr J Doyle (Applicant)
Mr Wright (Respondent)
Hunter Lawyers (Applicant)
Marsdens Lawyers (Respondent)
File Number(s):10750 of 2013

Judgment

Introduction

  1. The applicant, Mr Sgro, is the owner of a 4-hectare property that fronts the Pacific Highway on the northern outskirts of the township of Nabiac on the New South Wales Mid North Coast. His property is described as Lot 20 in DP 68599 at 14319-24327, Pacific Highway, Nabiac (the site).

  1. Mr Sgro believes his site is lawfully used for the purposes of a caravan park (with cabins), an older style service station with a shop/convenience store (refreshment rooms) and caravan sales and repair business. However, he would like approval to reconfigure the uses on the site into a modern day "highway service centre". To that end he has lodged a development application with the local consent authority, the Taree City Council (Council), in 2011. Despite the submission of amended plans and the further information requested by the Council his application was not determined within the prescribed time. So, Mr Sgro appealed the application to the Court pursuant to s97 (1) of the Environmental Planning and Assessment Act 1979 (the Act). As a result these proceedings are founded on the deemed refusal provision in s82 (1) of the Act.

  1. As Mr Sgro appreciates the redevelopment of his site as proposed is complicated by the fact that the present uses are prohibited under the Council's current planning instrument. In order to obtain development consent he must establish that the site has existing use rights, which support his proposal. More particularly, that the various activities presently carried out on the land had the benefit of existing use rights when the current planning instrument - the Greater Taree Local Environmental Plan 2010 - came into force on 25 June 2010 and that they have continued to date. (The commencement date of the LEP, 25 June 2010, is the "relevant date" for the purpose of cl 39 of the Environmental Planning and Assessment Regulation 2000 (the Regulations)).

  1. Subject to Mr Sgro satisfying the Court about the existing use rights on the land there is power under cl 45 (b) of the Environmental Planning and Assessment Regulation 2000 (the Regulations) for the Court to change the proportions of each of the various existing uses carried out on the land and approve Mr Sgro's application pursuant to the "existing use" provisions in Div 10 of Pt 4 of the Act and Pt 5.

  1. The Council however, contends that the current uses do not attract existing use rights, which support the proposal and, therefore, the development is not permissible pursuant to the "existing use" provisions in Div 10 of Pt 4 of the Act and Pt 5 of the Regulations. In short, the proposed development is for a prohibited use in the RU1 Primary Production zone under LEP2010.

  1. In contending that that development proposal is prohibited the Council has focused heavily on the description of the proposal as a "highway service centre" and the existing uses as being described as "an existing highway service centre" or "service centre". It has also strictly interpreted the extent of any existing use on Lot 20 by reference to the terms of any development consent including any plan incorporated into the consent said to found the lawful commencement of the various uses on the site.

  1. The identification of "the land" on which any existing use has been lawfully commenced and presently continues on the site is critical in this case. This is because cl 45 (b) of the Regulations only allows consent for a reconfiguration of the existing uses on "the land". The Council has interpreted the meaning of the words "the land "in cl 45(b) of the Regulations more narrowly than the applicant. It contends "the land" is not the whole of Lot 20 and that any existing use established is confined to distinct areas of land within Lot 20. In that circumstance the Council submits that they cannot be enlarged by this application to extend over the whole of the land in Lot 20.

  1. The approval of Mr Sgro's proposal requires a finding by the Court that the whole of the land in Lot 20 was lawfully used (at the relevant date) and continues to be used for the purposes of a service station (with convenience/shop and refreshment rooms), caravan park and caravan sales (including repair for the purposes of sale) business.

Contentions

  1. In my assessment the contention 1 raised by the Council in Exhibit 1 raises the following questions:

1.What is the "land" the subject of this application?
2.What were the uses/activities on the "land" at the relevant date (25 June 2010)?
3.Were those uses/activities legally commenced and thereby permissible based on existing use rights?
4.Are those existing uses/ activities presently carried out on the land?
5.Does cl45 (b) apply to the facts of this case and if so what is the meaning of "land" for the purposes of cl 45 of the Regulation?
6.Can the existing uses support an approval of the proposed development under the Regulation?
7.If so, should the proposed development be approved on its merits?

  1. I note that the council does not raise any issue with the merits of the proposal. Therefore, the merits issues are confined to those raised by the objectors to the application. I will deal with their concerns in due course. The Council also accepts that contentions 2(a) and (b) in (Exhibit 1) are resolved by the approvals obtained from the RMS and RFS.

What is the development proposal?

  1. The proposal is described by the parties' agreed statement of facts (Exhibit B) as a redevelopment in two stages. It states:

Stage 1:
    • Demolition of the current buildings on the land and convenience store
    • Relocation of the caravan sales area to the western end of the site, and;
    • Redevelopment of the highway service centre
    • Redevelopment of the caravan park, comprising four long term sites and amenities building.
Stage 2:
    • Completion of the caravan park.

  1. It incorporates the following:

    • The installation of 12 refuelling bowsers, eight to service passenger vehicles and four to service heavy vehicles,
    • A Shell convenience store of 160 m2 (88 m2 of leasable floor area),
    • A Hungry Jacks and a Pie Face restaurant with a gross floor area of approximately 140 m2 each with seating areas of 93 m2 and 59 m2, respectivel
    • An Oliver's [shop] with a gross area of 77m2
    • Optional food retail tenancy for separate retail uses with a gross floor area of 46m2, and
    • A common seating area servicing the above tenancy including 94 internal seats (within 300 m2) and 16 external seats (within 50 m2)

  1. In total the redevelopment provides an additional 723m2 of new floor space within the identified buildings and an additional area of 168 m2 for seating. It includes the construction of a substantial reinforced concrete driveway extending into the eastern part of Lot 20 to accommodate the parking and manoeuvring of trucks and buses (Exhibit A - plan A105 dated 21 February 2014). The final layout of the development (including the erection of acoustic barriers) is detailed in the letter from MacroPlan Dimasi to the Council dated 24 February 2014 (Exhibit A).

Agreed Facts

  1. By way of background I note that the parties agree about the following matters:

  1. The site is 4 ha and is triangular in shape. It has a 311 m frontage to the Pacific Highway (north-bound) and a 232 m frontage to Hardy Road. The land slopes gently from its western boundary to the southeastern boundary on the Pacific Highway and is subject to local flooding and is mapped bush fire prone land under the Act.

  1. It is located on the western side of the Pacific Highway approximately 900 m north of an existing Caltex service station. The village of Nabiac is on the opposite side of the highway and within the Greater Lakes Council. The site is surrounded by rural properties, which are used for various agricultural purposes.

  1. The site is located within the RU1 Primary Production zone under the LEP 2010.

  1. Development for the purposes of a caravan park, food and drink premises, highway service centre, neighbourhood shop, retail premises, service station, vehicle sales or hire premises are prohibited within the RU 1 Zone.

  1. Mr Sago's development application (DA 174/2012) lodged with the Council on 26 October 2011 was assessed by the Council as integrated development because the site has a frontage to a classified road and the caravan component is a "special fire protection purpose" as defined under the Act.

  1. All necessary approvals from the Rural Fire Service (RFS) and Roads and Maritime Services (RMS) have been obtained for the development. Furthermore, any relevant requirements from those authorities have been incorporated into the draft conditions of consent in (Exhibit J).

Service station

  1. The Council concedes the use of part of the site at Lot 20 DP 628599 for the purposes of a service station, which included the construction of the service station building and installation of petrol bowsers and pumps, commenced prior to 1963 and that the commencement of that use was lawful. However, it submits that the use of part of the site for the purposes of a service station, which became a prohibited use in 1967 and then again in 2010, has remained within the confines of the service station building and the petrol bowser area.

  1. The Council does not accept that the use of the site for the service station has extended outside the boundaries of those areas.

Caravan park

  1. The Council concedes the use of part of the site for a caravan park was commenced lawfully. However, it does not accept that the lawful "caravan park" use on the site extends beyond the area (comprising only part of the site) approved for the purposes of the caravan park in 1982 (DA82/414 and Consent 1233) and in 2003 (Consent 1325/2003).

  1. The Council contends that the caravan park use is limited to the approved caravan siting locations in the southern section of the site, and that the approved and lawful use does not extend into the northern (rear) or north eastern section of the site.

  1. The Council contends that the use of part of the site for the purposes of caravan sales is confined to the area approved for that use pursuant to development consent 1012/2002 issued on 12 August 2002 as identified in the site plan incorporated in the consent and annexed to the affidavit deposed on 29 January 2014 by its planning officer Ms Fotheringham (Exhibit 2).

Council's Submissions

  1. In making the above concessions the Council submits that a number of key facts can be identified:

15.First, the "Land" to which each of these uses relates was not the whole of the allotment known as Lot 20.
16.Secondly, there were three discrete activities on part of the Land - which are properly characterised as:
(i) a "service station",
(ii) a "caravan park" and;
(iii) a "caravan sales yard".
16. It matters not that these three discrete uses may, from time to time, have used some common parts of Lot 20 and/or may have been carried on by the same operator. It is the use that must be examined not the identity of the user.
17. The repeated use of the expression "service centre" in the SEE and the Applicant's submissions is, in any event-apt-to mislead for two reasons. First, because the expression does not accurately describe the activities occurring on the south-western part of Lot 20.Secondly, because there is no such defined use in any relevant planning instrument that has applied to Lot 20.
18. Both the GTLEP 1995 and the GTLEP 2010 define "service station" and "highway service centre". A service station is not a highway service centre or any other form of generic "service centre". The expression "service centre" on its own is meaningless as a descriptor of land use.
19. A caravan park did not and could not, as a matter of definition, form part of a "highway service centre" nor could a "caravan sales" activity.
20. The remaining activities carried out in the south-western corner of Lot 20 fell within the description of a "service station" including the existing building with an extended awning, the fuel bowsers, shop and the limited provision of food and merchandise.
21. The shop and cafe were part of the approved caravan park use and their presence on the land and overlapping use, does not alter the characterisation of that part of the land otherwise providing fuel and related goods and services as a "service station".
22. Under the Greater Taree Local Environmental Plan 1995 ("GTLEP 1995"), Lot 20 was zoned Rural I (b1). A "highway service centre" was permissible with development consent on Lot 20. No such use existed on Lot 20 in the period during which GTLEP 1995 was in force. Part only of Lot 20 was used as a service station in the period that instrument was in force.
23. If however, the Applicant's description of the activities on Lot 20 did fall within the definition of "highway service centre", that use was permissible with consent immediately before the coming into effect of GTLEP 2010. No such development consent was obtained under GTLEP 1995 and, in the absence of any development consent; any such use would not have been lawfully conducted on the land immediately before 25 June 2010. For that reason alone, a "highway service centre" could not have the benefit of existing use rights at that date.
24. Clause 45 of the Environmental Planning and Assessment Regulation 2000 ("EPA Regulation") has no application to the present facts. This is not a case of changing the proportions of several existing uses but of creating a large new use of "highway service centre" whether or not two other uses ("caravan park" and "caravan sales") are still to be accommodated on Lot 20."

(RWS at Para [15] -[24])

  1. In characterising the existing activities on Lot 20 as at 25 June 2010 the Council invites the Court to have regard to the decision of Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGERA 305 at 310 where McHugh JA said:

...the purpose of the use of land [is] to be described only at that level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on at the relevant date. Thus the test is not so narrow that it requires the characterisation of purpose in terms of the detailed activities, transactions or processes which have taken place.

  1. In North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd (1988) 16 NSWLR 50 at 59 where Kirby P said:

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.

  1. The Council submits that it is not uncommon to find a large parcel of land, particularly under a rural zoning to be put to more than one use at the same time. Nor is it uncommon to find that different activities will be conducted at the same time on some parts of the same land.

  1. However, it contends that the common use and interrelationship of some of those activities does not transform those individual activities into some other genus of use, particularly where the existing use is derived from a development consent. In that circumstance (where a development consent exists) then the use is to be determined by reference to the consent including any plan identified by it and any conditions of consent.

  1. The Council submits that it is the actual, present use of Lot 20 immediately before the coming into force of the prohibiting instrument that must be considered to determine the existing use rights.

  1. Characterisation of use is a matter to be determined on the facts of each case. In order properly to characterise the existing activities on Lot 20 for planning purposes, it is necessary to consider the character, extent and features of those activities.

  1. As detailed above the Council's case is that the whole of Lot 20 was not used and has not been used for any of the identified activities of "caravan park", "service station" (not centre) or "caravan sales yard". Although a more extensive use of Lot 20 for caravan park purposes came out in the hearing this does not change the ultimate conclusion in relation to existing use.

  1. The fact that Lot 20 has a single title description is not determinative of the manner in which different parts of the land were used in fact. It is hardly surprising that any application lodged with the Council would describe Lot 20 by reference to its title description.

  1. Each separate use needs to be considered in turn immediately before 25 June 2010 to the extent that the evidence permits that inquiry. At RWS [40] -[87] it submits:

Service Station Use
40. Sometime in the late 1950s, a service station was established by the Weller family in the south-western corner of what land then described as Lot 16 DP 54829813 on its frontage with the Pacific Highway. In the late 1950s to 1960s, the business then on the land consisted of "a petrol station, cafe, as well as overnight accommodation for caravans and camping."
41. The building then erected on the land remains present on Lot 20.
42. The building housed a cafe and apparently, an upstairs flat.
43. A caravan park developed behind the service station from around 1956.
44. In the period from 1982 to 1998, Mr and Mrs Budd were the owners of that land and the operators of the business on the land.
45. In or about 1982, the Budds obtained a building approval 343/82 to replace a small awning over the shop with a larger a awning to extend over the petrol bowsers17. The building application sought approval for "Proposed Awning For The Caltex Garage, Nabiac".
46. At that time the shop sold roadhouse style food and provided tables and facilities to eat food. Takeaway food was also sold to travelling customers. A range of grocery items was also sold inside the shop to caravan park customers, travellers and locals.
47. Importantly, immediately before 25 June 2010, there was no cafe or food preparation and service use of Lot 20. All goods sold were pre-packaged.
The Nature of a Service Station
48. The understanding for planning purposes of the nature of a service station has changed over time.
49. In Drummoyne Municipal Council v Cavallaro (1982) 46 LGRA 416, Reynolds JA said at 419:
The expression "service station" is, I believe, well known and understood in the community, and there is no evidence or real suggestion that its meaning has altered very materially between the years 1956 and 1969 or, indeed until now. To my mind the words mean a place or building used principally for the sale by retail of petrol, oils and other petroleum products, and a use may nevertheless still answer that description when it covers other services in respect of motor vehicles which are regarded as ancillary to that principal use.
And, after referring to the particular definition under the Drummoyne planning scheme, his Honour went on to say:
The only development to which I would make reference is that I would believe now that, in addition, to those matters, service stations commonly sell confectionery, soft drinks and maps.
50. A "service station" was prohibited by Interim Development Order No 1 Shire of Manning on Lot 16 DP 548298 pursuant to the Land Use table to the IDO, as were caravan parks, car repair stations, refreshment rooms and shops22. The instrument came into force on 2 June 1967 and continued in force to 11 June 1981. Hence the Council's statement on 19 December 2013, that the use of part of the Land became prohibited in 1967 and again 2010.
51. On the evidence, up until around the mid-1960's the use was properly characterised as that of "service station" with the associated activities commonly accepted as coming within that expression.
52. A "service station" is not the same thing as a "highway service centre". Those terms are separately defined in each of the GTLEP 1995 and the GTLEP 2010. They are separate and distinct uses for planning purposes.
53. In the GTLEP 1985 the following definitions appear in clause 4:
highway service centre means integrated development providing on the one site a variety of facilities intended for the provision of services required by the travelling public and commercial highway users, including provision for:
(a) refreshment, and
(b) motor vehicle servicing facilities,
which development may also include use of the site for advertisements, bus stations, car parks, drive-in take-away food outlets, dwellings occupied in conjunction with uses permissible on the site, emergency repair facilities (including towing facilities), facilities for commercial vehicles, information centres, playgrounds, refreshment rooms, rest areas, rest rooms, roads,
service stations and utility installations.
service station means a building or place used for the fuelling of motor vehicles involving the retail sale of petroleum products, and which also may be used for any one or more of the following:
(a) the hiring of trailers,
(b) the retail selling or the installation of spare parts and accessories for motor vehicles,
(c) washing and lubricating of motor vehicles,
(d) repairing and servicing of motor vehicles (other than body building, panel beating or spray painting),
(e) the retail selling or hiring of small consumer goods."
54. ln the GTLEP, those terms are defined respectively in the dictionary as follows:
highway service centre means a building or place used to provide refreshments and vehicle services to highway users. It may include any one or more of the following:
(a) a restaurant or cafe,
(b) take away food and drink premises,
(c) service stations and facilities for emergency vehicle towing and repairs,
(d) parking for vehicles,
(e) rest areas and public amenities.
service station means a building or place used for the sale by retail of fuels and lubricants for motor vehicles, whether or not the building or place is also used for any one or more of the following:
(a) the ancillary sale by retail of spare parts and accessories for motor vehicles,
(b) the cleaning of motor vehicles,
(c) installation of accessories,
(d) inspecting, repairing and servicing of motor vehicles (other than body building, panel beating, spray painting, or chassis restoration),
(e) the ancillary retail selling or hiring of general merchandise or services or both.
55. It is apparent from the respective definitions of "service station" that the definitions reflect the development of the common understanding of the expression "service station" in the Court of Appeal decisions such as Drummoyne.
56. Pursuant to these definitions, the use of the south-western corner of Lot 20 under each of these definitions was properly characterised as a "service station" and not a "highway service centre".
57. The Applicant appears to rely upon the interrelationship between distinct "caravan park" and "caravan sales" uses in promoting the hybrid notion of "service centre". That approach is flawed.
The Caravan Park
58. The evidence demonstrates that the "caravan park" is a separate and distinct use of part of Lot 20. The Caravan Park use has the benefit of development consent DA 1233 granted by the Council on 29 October 1982. That use must be characterised by reference to the consent.
59. It may have shared with the service station the following features of the land over time:
· The entrance and driveway;
· The shop;
· The cafe or refreshment facilities providing roadhouse food and other items;
· The flat above the service station building;
· The manager's residence and garage;
· The storage shed;
· The car park;
· Play area;
60. The sharing of those common features of Lot 20 does not transform a "caravan park" into a "service station" or a "service station" into a "caravan park" or either of those activities into a "service centre".
61. A caravan park began to develop on the land that became part of Lot 20 at about the same time or shortly after the service station was established.
62. The caravan park is concentrated in the vicinity of the service station use and along the western boundary of Lot 20.
63. It is noted that an outdoor area received building approval on or about 3 November 1998, and has been constructed towards the northern apex of the triangular parcel.
64. The evidence going to the alleged use of some other parts of the land for the various uses was tested at the hearing and it can be argued that the caravan use did extend into the far northern area of the site that was apparently purchased for the caravan use and consolidated as part of the lot 20. Mr Budd made this clear use of the site clear in his oral evidence during cross-examination.
The Caravan Sales Yard
65. In around 2002, a "caravan sales yard" use was introduced. Importantly, this use is the subject of development consent No 102/2002D granted by the Council on 12 August 2002. Hence, the character of this use is to be determined by reference to the development consent.
66. That activity may also have shared with the service station activity (whether or not in conformity with Consent No 102/2002D) the following elements:
· The entrance and driveway;
· The shop;
· The storage shed;
· The car park
67. The approved plans show that the area for caravan sales is confined to a marked location in the south to south-western corner of Lot 20 adjacent to the frontage with the Pacific Highway.
68. The evidence suggests that this use has been conducted unlawfully in parts of Lot 20 well outside the approved area. Other conditions of the consent have not been complied with.
69. The sharing or common use of those facilities or features of Lot 20 does not transform a "caravan sales yard" activity into a "service station" or a "service station" into a "caravan sales yard". They remain separate and distinct uses that must be separately characterised for planning purposes.
70. Still less does the sharing of common features of Lot 20 transform those 3 identified activities into some hybrid activity of "service centre". A "caravan park" activity could not come within the definition (or common understanding of the meaning) of a "service station".
71. A "caravan sales yard" cannot, by sharing common facilities with a "service station", change its character so as to become a "service station" or a "service centre". The "caravan sales yard" must still be characterised as a species within the genus of commercial use by reference to the development consent.
72. Similarly, the fact that more than one of the activities has been carried on by the same operator does not affect the characterisation of the use for planning purposes. The nature of the activity determines its character, not the identity of the operator.
73. There was no lawful use of any part of Lot 20 as a "highway service centre" immediately before 25 June 2010 having the benefit of existing use rights.
The Operation of Part 4 Division 10 of the EPA Regulation 2000
74. The Applicant appears to promote the notion of a single hybrid use of "service centre" to suggest that no new use is being introduced onto Lot 20. That suggestion is not supported by the facts.
75. It is plain from the description of the proposal in the SEE summarised above that the primary intention of the development application revealed in stage 1 is to redevelop Lot 20 for a "highway service centre" as defined in GTLEP 2010 occupying most of the Lot.
76. The retention of some form of "caravan sales" business and the later "completion of the relocation of the "caravan park" in stage 2 of the development does not alter the nature of the primary proposal.
77. The development proposal, whether considered by reference only to stage 1 or by reference to both stage 1 and 2, is not simply an application to redistribute or change the proportions of existing lawful uses.
78. In fact, the Applicant seeks consent to change the "service station" in the south-western corner of Lot 20 into a "highway service centre" occupying most of Lot 20. The proposal seeks to transform one discrete and low key use into a different and very much more substantial use.
79. Clause 45 does not contemplate introducing an entirely new use in respect of which no existing use rights have been established in respect of use. Clause 45 has no application to the proposal.
80. Nor could the proposal to develop a "highway service centre" be approved under clause 42 of the Regulation because:
(i) The proposal is not to enlarge, expand or intensify a lawful "service
station" activity; and
(ii) It is not proposed to be carried out on the same land as the small south-western portion of Lot 20 on which the "service station" use was carried out immediately before 25 June 2010.
82. For the above reasons the council contends on the evidence that the Applicant has failed to discharge of establishing existing use rights for the proposed development.83.The Applicant's submissions reveal two fundamental errors in the    analysis the present activities on Lot 20.
84.Firstly, the land to which the present activities relate is not now and was not immediately before 25 June 2010, the whole of Lot 20. The evidence demonstrates that, even though those activities overlapped in some respects, they were not conducted over the whole of the parcel of land known as Lot 20.
85. Those activities that have been approved on the land are confined by those approvals, to the areas of Lot 20 identified in the plans approved for those activities.
87. The Court has no power to grant consent to the proposed development and the Class 1 application should be dismissed."

Applicant's submissions

  1. The applicant relies on successive approvals and the historical use of the land (as summarised in Exhibit C) to establish that Lot 20 has been used in its totality for three different uses in various proportions over time (AWS Para 1.4).

  1. It submits based on the Council's concessions about the three lawful uses of the site (at RWS Para 14) that the applicant has a right under cl 42 to continue the existing uses, alter, enlarge and expand those three existing areas of activity which are each long standing at the property (AWS Para 1.7). It also contends that under cl 45 (b) it can obtain consent to rearrange or reconfigure the proportions of the use on the site and alter the concentrations of the use. (AWS Para 1.8).

  1. The applicant rejects the Council's narrow interpretation of cl 42(2)(b) of the Regulation to suggest that each of the three parts of the sites' use is tied to a distinct part of the property where it is currently concentrated.

  1. Clause 42 provides:

42 Development consent required for enlargement, expansion and intensification of existing uses
(cf clause 40 of EP&A Regulation 1994)
(1) Development consent is required for any enlargement, expansion or intensification of an existing use.
(2) The enlargement, expansion or intensification:
(a) must be for the existing use and for no other use, and
(b) must be carried out only on the land on which the existing use was carried out immediately before the relevant date.

  1. The applicant invites the Court to examine Part 5 of the Regulation and its use of the term "land" in clls 43 (2)(b), 44(2)(b) and 45(2)(b) and conclude that in this case the "land" must be the whole of Lot 20. To conclude otherwise, it submits frustrates the operation of cl 45(2)(b) AWS para 1.12)

  1. Clause 45 provides:

45 Development consent required for changes of existing uses
(cf clause 43 of EP&A Regulation 1994)
Development consent is required:
(a) for any change of an existing use to another use, and
(b) in the case of a building, work or land that is used for different existing uses, for any change in the proportions in which the various parts of the building, work or land are used for those purposes.

(Emphasis added)

  1. The applicant submits that:

If the Regulation applies to a situation where "various parts of land" can be "used for different purposes"(and Clause 45 (b) really can have no possible application except to such a situation), the Council's focus on fixing precise boundaries around the various parts of the property employed for different existing uses in this case is an illusionary and distracting one. It will not identify the relevant "land". It will only identify the different "parts' of the land referred to by clause 25(2)(b)" (AWS para 1.13).

  1. The applicant maintains that an examination of the development consents, Local Government Act and statutory approvals for the preparation of food onsite and associated approved plans leaves little doubt that this is a single unit of "land" with "various parts" that are "used for different purposes".

  1. In fact the applicant submits that it is hard to imagine a clearer example of land (Lot 20) being used "for different existing uses" over "its various parts".

  1. The applicant states several reasons why the Court should accept that the land is the whole of Lot 20 (Para 1.18 of AWS). They are:

(a) Every approval, application and plan relation to the use of the Property relevantly nominates the land to which they relate as the whole of the Property ( i.e. LOT 20 DP 628599);
(b) There are essential facilities common for each use;
(c) The "different existing uses" overlap so as to make identification of three individual parcels of land impossible;
(d) The "land " comprises a single Real Property Act allotment under one owner;
(e) The property presents visually and functionally as a single land parcel; and
(f) Although for limited periods the different businesses making up the use of the site have been individually managed, they have always been integrated to a degree. For much of the property's history, the whole of the site has been managed by one proprietor.

  1. It is submitted that this is not a case about the introduction of a new use to the land (and offending cl41 an d 42 of the Regulation) but rather a case about the change in the proportions of the different uses a proposal which is expressly anticipated by the statutory scheme as is alteration, enlargement and expansion in the existing use of land.

Consideration

  1. The applicant relies on documentary evidence and several affidavits prepared by lay witnesses directed at establishing the existing uses claimed. It includes a document entitled "chronology" which cross-references the affidavit evidence with the applicant's written submissions and other documentary evidence in (Exhibit C). The lay witnesses relied upon gave further oral testimony at the hearing in Forster and, were cross-examined by the Mr Wright the applicant's advocate.

  1. The council relies on documents from its files and the affidavit evidence of its internal planning officer Ms Arnna sworn on 29 January 2014.

  1. Before I delve into the evidence I need to make clear my view that the council's focus on the descriptors of the development and the current uses of the site is misplaced. In my assessment I am not constrained by the applicant's descriptors used for the development proposal such as "highway service centre redevelopment" or the various labels referred to in the application and evidence and attached to the existing uses. Rather, I must consider the actual use of the land at the relevant date based on the evidence and the applicable law. Therefore, the real issue for determination in my view is that expressed in contention 1 of the Council's statement of facts and contentions (Exhibit B) and referred to in the written submissions namely: "...whether the applicant has established that it has existing use rights capable of supporting the proposed development such that it is within the Court's power to grant development consent"(RWS para 7).

  1. At the commencement of the hearing onsite I observed that there are presently three uses carried out on Lot 20. The uses generally accord with the locations depicted on the aerial photograph (Exhibit F).

  1. As noted by both parties the egress and entry to each of the uses is common. The single entry and exit for each use is via the driveways from the Pacific Highway.

  1. At the eastern frontage of the site (facing the Pacific Highway) is an old service station building with awning and pumps and toilets at the rear. There is also an area for parking of cars adjacent to the building. At the time of my inspection the service station sold fuel and other service station products, convenience /shop items including a limited range of groceries/toiletries/confectionary but also a large array of supplies for caravans/and campers. Within the service station there was a counter that served food (including heated pies/sausage rolls), hot and cold drinks and sweets. Adjacent to the counter were some tables and chairs where people could sit to eat the food purchased. A few more tables and seats for that purpose were located outside the building to the north.

  1. At the rear of the service station building is a separate kitchen area with tiling consistent with a commercial kitchen use. However, I observed that it was not being used as a kitchen at the time of the Court's inspection but rather as a storage area for caravan sales supplies. According to the evidence, the kitchen use stopped following council's inspections pending the determination of this application. Prior to that there was service and preparation of hot food on the premises. Adjacent to the kitchen is a separate room that is the size of a cool room but again it currently fulfils a storage function for the storage of caravan sales supplies.

  1. Generally along the southern boundary of the site and behind the service station I observed that the site is being used as a caravan park with some motel units /cabins. An amenities block with toilets and laundry stands in the middle of that area. The applicant told me onsite that the amenities block is used by the residents of the park. Behind the motel units/cabins I observed a large mowed green-grassed area, which contained one covered picnic table with benches, two light poles and two taps which I understand are available to be used by occupants of the caravan park. This rear area also contains a brick building currently used for the storage of caravan parts. According to the evidence of Ms Kelleher who purchased the property at 14319 Pacific Highway Nabiac with her husband on 20 August 1998 they obtained development consent DA 357/99 (Exhibit B Tab V) from the Council to erect the brick building for providing outdoor cooking facilities for the caravan park occupants at the rear flat-grassed area of the Nabiac site. She states in her affidavit sworn on 15 January 2014 (at para 9 of Exhibit D) that "The approved structure is still there today ". I observed that structure on the site.

  1. Past the service station toward the northern site boundary I observed a caravan sales and repair business. The caravans were parked north of the service station beyond an outdoor eating area associated with the service station. They were around an existing residence and shed and extending toward the northern boundary. Some vans were placed outside a broken fenced area, which the applicant told me roughly marks the site boundary from the road reserve. The uses outside the site boundary of Lot 20 are not relevance in this case. The existing residence and shed were being used as part of the caravan sales and repair for sales business on the site.

  1. The plan attached to the development consent for the caravan sales dated 12 August 2002 (behind Tab AB of Exhibit B) cannot be the only source of evidence to identify the land to which that sales consent relates not the least reason being that access to that area is outside the plan and through an area used as common entry and exist to the site for all activities (cf Scully v Leichhardt Council (1994) 85 LGERA 109 at 111). This is consistent with the acknowledgment of the Council that there was overlapping of areas of which approved uses were conducted.

  1. The two consents referred to by the Council as evidencing the caravan park use (1982 and 2003) (cf-RWS at para [52]) do not confine that use to the area within Lot 20 within which cabins and caravans are to be located. The Council also required that an additional area be set aside in order to make the minimum site area requirements for the caravan park. This requirement was imposed by the Council to enable then owner of the land to obtain the requisite licence to continue to operate the caravan park. It was a requirement that resulted in the acquisition of the area identified as being the subject of those consents in Lot 20.

  1. In 1982 the Council allowed the owners to relocate the boundaries of that lot so as to increase its area. As Mr Budd, the then owner explained the minimum area of the site necessary to accommodate the amenities block was 10 acres (or 4 hectares) and in order to comply with the requirements of the then Ordinance 701 greater separation of that block from caravan sites was required.

  1. When the new amenities block was erected in accordance with the Council's consent the waste disposal system involved a septic absorption system that discharged to the grassed area to the north of the site.

  1. The evidence before me (Exhibit G) also discloses that those using the caravan park resorted to that area to the north and east of the area where cabins and caravans were located as a general recreation area. It is entirely reasonable to accept the oral evidence of the lay witnesses that the children who resided in the caravan park played in the grassed areas.

  1. Importantly, the evidence reveals that the occupants of the caravan park used the shop on the area associated with the service station to purchase food and groceries. The shop was also used as an office for the administration of the caravan park.

  1. When I consider the terms of the consent in (Exhibit B) for all the 3 activities on Lot 20, the evidence reveals each was lawfully commenced and that the manner in which each of those activities was conducted fell within the terms of the consents. I am satisfied on the evidence that in their totality those activities were spread across the entirety of the Lot 20.This was the position that pertained at the relevant date and land uses that reflect those activities have continued to the present.

  1. The only activity, which is said by the Council to have been abandoned, is the preparation of food for sale on the site. Although the kitchen is not presently used, to the extent that it is relevant, I do not accept that there has been an abandonment of intent to continue that aspect of the activities conducted on the land. As I earlier stated preparation of food on the site only ceased when controversy as to the present application arose. More importantly the fact even accepting that there has been an abandonment of the food preparation for sale on the land that does not seem to me to involve an abandonment of any relevant use that forms part if the site's existing uses - food stuffs are still reheated and sold.

Evidence - merit

  1. As noted the Council has raised no merit concern with this development proposal (RWS Para 6). However, there are four local objectors to the development. They are: Ms Lisa Schiff (Director of Planning and Environmental Services) on behalf of The Great Lakes Council, Ms Margaret Howard on behalf of The Mid Coast Tenancy Advice and Advocacy Service and Mr Peter Doyle who is an adjoining landowner and the owner of a business opposite the site, and Ms Groves a long term resident of the caravan park. Each of the objectors addressed the Court onsite at the commencement of the hearing.

  1. Ms Schiff expressed concern about the impact of the proposed development on the economic growth of the local businesses in the nearby villages of Nabiac, Bulahdelah and Coolongolook. She supported the council's interpretation of the application and in her evidence emphasised her view that the proposed use was prohibited in both the Taree LEP 2010 and the soon to be gazetted draft 2014 LEP for Great Lakes. She told me the development is inconsistent with Council's strategic planning for the site.

  1. Mr Doyle is concerned about safe access and egress to the development from the highway. Although at the time of his evidence he had not been told that the RMS had given its general terms of approval and that its requirements had been incorporated into the conditions of consent to ensure safe ingress and egress to the development site. Apart from that concern Mr Doyle also said he is concerned that any redevelopment of the site might exacerbate the existing flooding and sewerage impacts he currently suffers on his adjoining land. He is also concerned about any adverse impact on his beef business known as the Wallamba River Trading Company, which operates opposite the site at 14391 Pacific Highway. In my assessment there is no evidence to support any concern that the redevelopment of the site a s proposed will have adverse impact on his beef business across the highway. His concerns about flooding and drainage impacts on his adjoining land are in my assessment adequately dealt with by the conditions of consent formulated after a consideration of the drainage assessments by the applicant experts and the relevant council officers.

  1. Ms Howard's is concerned about the relocation of existing long term caravan and motel unit/cabin tenants such as Mrs Groves. She asked the Court to ensure that any alternate accommodation in the new proposal offer the same area of residential space and be located outside any flood-affected area.

  1. Ms Groves who resides in the largest motel unit/cabin of the park and has done so with her family for many years said she wanted the same size unit and garden area in the new caravan park and a desire to be located outside any flood impacted area. (Her concerns are addressed by the conditions of consent agreed to by the applicant. She was given assurance that she entitled to a motel unit of the same proportions as the area from which she will be displaced within a flood free area of the new development).

  1. After a careful consideration of the objectors concerns as outlined I am satisfied that they are satisfactorily addressed by the amended plans and the conditions of consent that will be imposed by the Court.

Conditions

  1. The Council's draft conditions of consent are contained in (Exhibit 5) and the suggested amendments are detailed in the marked version of the conditions in (Exhibit J).

  1. Generally, the applicant accepts of the Council's draft conditions. However, he disputes the requirement for a further Stormwater Drainage report prior to the issue of a construction certificate as required by condition 11 of (Exhibit 5). The applicant would prefer to rely on the Flood Assessment Report submitted by Floodmit Pty Ltd dated June 2013 and accept a condition, that requires the development to be carried out in accordance with the recommendations in that report (condition 11 of Exhibit J).

  1. While I appreciate the fact that the site and immediate vicinity of the site is affected by local flooding from stormwater, I am satisfied that the recommendations of the Floodmit report (incorporated into the consent by condition 11), including a requirement for certification that stormwater from the development will not exceed the capacity of the Pacific Highway stormwater drainage infrastructure, satisfactorily deals with the this issue of flooding.

  1. I am also satisfied that the relocation of the motel units/cabins proposed within the stage 1 development in accord with the applicant's proposed conditions 62A and 62b addresses Mrs Grove's concerns and that the stage 2 caravan works are adequately dealt with by conditions 101 and 102.

  1. In my assessment of the evidence it is appropriate that the Council's draft conditions be amended to incorporate the changes proposed by the applicant in (Exhibit J).

Conclusion

For the reasons stated I am satisfied on the evidence that the applicant has discharged the onus of establishing existing use rights which support an approval of his development application. Furthermore, after an assessment of the relevant matters under s79C of the Act I am satisfied that the development is acceptable on its merits subject to the imposition of the draft conditions in (Exhibit J). Accordingly, the Court orders:

(1)   Appeal upheld.

(2)   Development consent is granted to Development Application 174/2012 in accordance with the plans and subject to the conditions in Exhibit J.

(3)   The Council is directed to file an electronic version of the conditions of consent with the Court within 7 days of the date of this judgment.

(4)   The Exhibits are returned to the parties apart from Exhibits 1 and J.

Susan Dixon

Commissioner of the Court

Amendments

19 June 2014 - Mr J Doyle added


Amended paragraphs: Coversheet

Decision last updated: 19 June 2014

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Sucas Holdings P/L v Le Dome P/L [1994] FCA 437