Vis Visitor Investment Services Pty Ltd v Hawkesbury City Council

[2010] NSWLEC 10

Land and Environment Court

of New South Wales

CITATION:

Vis Visitor Investment Services Pty Ltd v Hawkesbury City Council and Anor [2010] NSWLEC 10

PARTIES:

APPLICANT
Vis Visitor Investment Services Pty Ltd
FIRST RESPONDENT
Hawkesbury Shire Council
SECOND RESPONDENT
Hawkesbury Riverside Retreat Ltd

FILE NUMBER(S):

40605 of 2008

CORAM:

Sheahan J

KEY ISSUES:

DEVELOPMENT CONSENT :- whether any of a number of Council decisions regarding operation of a caravan park on a particular area of land and/or on adjacent areas of land constitutes a development consent to operate a caravan park on that particular area of land - declaratory relief - characterisation of use - consents to develop - approvals to operate - no issue of estoppel or existing use - rules of construction of documents

LEGISLATION CITED:

Interpretation Act 1987
Land and Environment Court Act 1979
Local Government Act 1993
Environmental Planning and Assessment Act 1979

CASES CITED:

Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd; Weston Aluminium Pty Ltd v Environment Protection Authority and Another (2006) 148 LGERA 439, [2006] NSWCA 273
Auburn Municipal Council v Szabo and Another (1971) 67 LGRA 427
Blackington Pty Ltd v Tweed Shire Council (2006) 145 LGERA 160, [2006] NSWLEC 158
Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400, [2007] NSWLEC 114
Eaton & Sons Pty Limited v The Council of the Shire of Warringah (1972) 129 CLR 270
Grace and Another v Thomas Street Cafe Pty Ltd and Others (2007) 159 LGERA 57, [2007] NSWCA 359
Halglide Pty Ltd v PT Ltd; Blacktown City Council and McNamara Property Management Pty Ltd (1990) 71 LGRA 215
Hopkins and Another v Tweed Shire Council and Another (2001) 113 LGERA 406, [2001] NSWLEC 75
Kendall Street Developments Pty Ltd v Byron Shire Council [2004] NSWLEC 227
Ryde Municipal Council v The Royal Ryde Homes and Another (1970) 19 LGRA 321
Salvation Army v Newcastle City Council (2000) 107 LGERA 40, [2000] NSWLEC 36
Steedman v Baulkham Hills Shire Council (No.1) (1991) 87 LGERA 26
Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council [No.2] (1993) 78 LGERA 404
Vis Visitor Investment Services Pty Ltd v Hawkesbury City Council [2008] NSWLEC 39
Vis Visitor Investments Services Pty Ltd v Hawkesbury City Council [2007] NSWLEC 112
Weston Aluminium Pty Ltd v Environment Protection Authority and Another; Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd (2007) 156 LGERA 283, [2007] HCA 50
Winn v Director-General of National Parks and Wildlife and Others (2001) 130 LGERA 508, [2001] NSWCA 17

DATES OF HEARING:

14 April 2009, 15 April 2009, 5 August 2009

 
DATE OF JUDGMENT: 

2 February 2010

LEGAL REPRESENTATIVES:

APPLICANT
Mr N Eastman
SOLICITORS
D C Balog & Associates

FIRST RESPONDENT
Mr D Wilson
SOLICITORS
A R Walmsley & Co

SECOND RESPONDENT
Submitting appearance
SOLICITORS
Storey & Gough Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Sheahan J

2 February 2010

40605 of 2008 VIS VISITOR INVESTMENT SERVICES PTY LTD v HAWKESBURY CITY COUNCIL AND ANOR

JUDGMENT

Introduction

1 His Honour: The applicant in this case seeks a declaration that its operation of what might be described as, or considered to be, a “caravan park”, on Lot 1 in DP 862897 (“the subject land” or “Lot 1”), is lawful. The street address of the land is said to be 78 Greens Road, Lower Portland, and the project has recently been called “Hawkesbury Riverside Retreat”.

2 The subject land falls within the local government area for which the first respondent Council is now responsible. It is now owned by the second respondent company, Hawkesbury Riverside Retreat Ltd, which company has filed a submitting appearance in these proceedings, save as to costs.

3 The use of the subject land as a caravan park, or tourist/recreation area, would appear to have commenced in about 1967, probably earlier (Exhibit V1, fols 35-37), while the subject land/park and other nearby lands were owned by a Mr Douglas Volney Bensley. Mr Bensley died in 1979, and his family interests apparently assumed the ownership of his land and the conduct of the park, at least in the early years post 1979. The present applicant company is said, in an earlier relevant judgment, to have operated the park since about 1992, but it is not known to the court if its interests, or those of the second respondent, extend to former Bensley lands beyond Lot 1. In recent years Council’s dealings have been largely with Glenys Gilling and David Hooker.

4 The park has had the benefit of many consents and other approvals over the years and several of them need to be construed for the court to decide if they make the operation on Lot 1 lawful.

5 Council’s position is that some sites and various areas of the subject land enjoy a clear consent, but that all others, and the “caravan park” use itself, do not.

6 The declaration sought by the applicant park operator in the current proceedings is in the following terms:

…“ that the land constituting Lot 1 in DP 862897 and known as Hawkesbury Riverside Retreat, including site 68 as described on the revised site plan dated 15 March 2000 referred to in the Statement of Environmental Effects [which] accompanied the development application dated 18 April 2000 submitted to Hawkesbury City Council by Glenys Gilling and numbered M619/00 , has development consent to for [sic] use as a caravan park ” (emphasis added).

7 As Council contends that the consent “numbered M619/00” does not include approval of site 68, it has been necessary for the applicant to review all the consents and approvals considered relevant. The rules of construction are well settled, and the major challenge of this case has been identification of the relevant documents to be construed.

8 Having completed a thorough review of all the evidence, the court has decided that the relief sought by the applicant must be declined.

The structure of this judgment

9 The court will explain its decision and reasoning in the following order:

(1) Clearly defining the relevant land.
(2) Explaining the regulatory regime for caravan parks.
(3) Characterising the use of the subject land.
(4) Putting the present proceedings in the context of the relationship, and earlier proceedings, between the park and the Council.
(5) Summarising the law governing the construction of consent documents and the incorporation of other documents.
(6) Commenting on the difficulties faced by the court as a result of the way the proceedings were conducted and the documents in evidence were presented.
(7) Recording and reviewing the pleadings in their final form.
(8) Considering the evidence: Firstly, the Local Government Act approvals, and then, in chronological order, the development applications and consents 1967-2001, and the surrounding history.
(9) Summarising the evidence.
(10) Conclusion and orders.

(1) The Subject Land

10 The applicant submits (par 49) that the subject land, namely Lot 1 in DP 852897, is the “whole of the land constituting the caravan park”, but that was not always the case. In the early days of the park operation, say 1967-1980, Mr Bensley’s interests and concerns ranged over quite a large area of land (some 988 acres) in the Parish of Hawkesbury (Portions 7, 15, 17, 18, 19, 34, 41, 61 and 62, as well as a nearby public reserve, No. 35631).

11 Gradually he and Council came to concentrate their attention on Portions 18 and 19, which were mostly referred to in combination (viz: Portions 18/19, or part of that combination).

12 Portion 18 became Lot 18 in DP 753784, and Lot 18 had an area of 28.33ha (Exhibit V1, fol 41).

13 Somewhat unhelpfully, the applicant’s written submissions (par 26) refer to the subject land, Lot 1, as comprising parts of both the former portions 18 and 19, but Exhibit C1 traces the history of the evolution of DP 862897, culminating in the registration of the relevant subdivision of part of “Lot 18 in DP 753784 (Pt Por 18)”, on 11 October 1996.

14 Exhibit C1 makes clear that Lot 1 comprises only that part of the former Portion/Lot 18 which lies east of Greens Road, alongside the Hawkesbury River, and is now really quite isolated from all those other former Bensley lands and the reserve, to all of which I referred in [10]. It is a triangle bordered on two sides by the river and on the other by Greens Road, and has an area of 13.206ha (Exhibit V1, fol 52).

15 The balance of Portion/Lot 18 became Lot 2 in DP 862897, on the other side of Greens Road. Portion 19 lies to the west of Lot 2, and Portion 15 to the north. Generally to the north and west are Portions 34, 17, 41, 7, 61 and 62 (see maps in Exhibit C1). Reserve 35631 lies north of Portion 7 and west of Portion 34.

16 Some of the many plans, maps, sketches and diagrams among the materials in Exhibit V1 are not as clear as those in Exhibit C1, as to the layout and relationship of these lands, and as to their geographical orientation. Lot 1, and Portions 15 and 34 have frontage to the western side of the river. Some of the documents show caravan sites on Portions 15 and 34 at various times.

17 However, the court must focus on only that part of Portion 18 which now comprises Lot 1.

18 The street address of the park is 78 Greens Road. Mr Bensley usually gave his address as “Mt Andrew”, Lower Portland (which would also appear to be Lot 1 – see Exhibit V1, fol 121, and Exhibit V2). Ms Gilling’s address is mostly given as No. 79 Greens Road (see e.g. Exhibit V1, fol 45), but sometimes as No.78. It is not clear from the evidence whether No.79 is part of the subject land, nor whether it was part of Lot 18 DP 753784. One application is stated to affect No.78 and Lot 1 in DP 862891 (rather than 862897). No evidence was brought, nor explanation given, regarding these disparities.

(2) The regulatory regime for caravan parks

19 These days caravan parks are closely regulated under State-wide instruments and policies. In particular, they require consents/approvals under both the Environmental Planning and Assessment Act 1979 (“EPA Act”) and the Local Government Act 1993 (“LG Act”), and this court has held that those two approvals/consents can be obtained in either order (see Vis Visitor Investment Services Pty Ltd v Hawkesbury City Council [2008] NSWLEC 39, per Biscoe J).

20 Section 68 falls within Chapter 7, Part 1 of the LG Act, and relevantly provides that a person may carry out an activity included in the table to the section “only with prior approval of the Council”, except insofar as there is specific provision, in the LG Act, the regulations or a properly adopted “local policy”, for such tabulated activity to be carried out “without that approval”. Part F of the table to s 68 relevantly includes the following “other activities”:

“ 2. Operate a caravan park or camping ground.
3. Operate a manufactured home estate ”.

21 Apart from the various requirements of the EPA Act (for a valid consent to development) and the LG Act (for approval to operate), caravan parks and like ventures are subject to significant regulation, the details of which have evolved in many and varied ways since 1967, significantly with the enactment of Ordinance 71 in December 1986. (See generally Blackington Pty Ltd v Tweed Shire Council (2006) 145 LGERA 160, [2006] NSWLEC 158, per Jagot J – “Blackington”).

22 The Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005 (“the Regulation”), which replaced a 1995 version on 1 September 2005, now provides:

“ 74 Conditional exemptions
(1) The prior approval of the council is not required for the installation of a relocatable home or associated structure on a dwelling site within a caravan park, so long as it is designed, constructed and installed in accordance with the relevant requirements of Division 4.
.......
(6) An exemption provided for by this clause does not apply to the installation of a relocatable home, rigid annexe or associated structure on flood liable land if the council has notified in writing the holder of the approval to operate the caravan park or camping ground concerned, before that installation, that the land is flood-liable land.
......
75 Installation on flood liable land
(1) In deciding whether or not to approve the installation of a relocatable home, rigid annexe or associated structure on flood liable land in a caravan park or camping ground, the council must have regard to the principles contained in the Floodplain Development Manual.
(2) It is a condition of an approval to install a relocatable home or associated structure on flood liable land that the relocatable home and associated structure is designed, constructed and installed in accordance with the relevant requirements of Division 4.
(3) It is a condition of an approval to install a rigid annexe on flood liable land that the rigid annexe is designed, constructed and installed in accordance with the relevant requirements of Division 5.”

(“SEPP 21”) commenced on 24 April 1992, and defines “caravan park” to mean:

“ land (including a camping ground) on which caravans (or caravans and other moveable dwellings) are, or are to be, installed or placed ”.

24 Under SEPP 21, a “moveable dwelling” is as defined in the LG Act, namely as:

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

25 Clause 8 of SEPP 21 provides:

8 Development consent required for caravan parks
(1) Development for the purposes of a caravan park may be carried out only with the development consent of the Council.
(2) Before granting development consent to the use of land for the purposes of a caravan park, a Council must determine:
(a) the number of sites (if any) within that land that the Council considers are suitable for long-term residence, within the meaning of the Local Government (Caravan Parks and Camping Grounds) Transitional Regulation 1993 , and
(b) the number of sites (if any) within that land that the Council considers are not suitable for long-term residence, but are suitable for short-term residence, within the meaning of that Regulation.
(3) A Council must not grant development consent to the use of land for the purposes of a caravan park unless it imposes as a condition of that consent a condition specifying the maximum number of sites (if any) within that land that may be used for long-term residence.
(4) The holder of an approval under Part 1 of Chapter 7 of the Local Government Act 1993 to operate a caravan park or camping ground on land must not, without the development consent of the Council, allow a person to occupy a site within that land:
(a) for a continuous period of more than 3 months, except as provided by paragraph (b), or
(b) for a continuous period longer than the period (if any) for which the person is allowed to be accommodated within the land by an extension that has been granted under clause 19 (6) of the Local Government (Caravan Parks and Camping Grounds) Transitional Regulation 1993,
if such a use of that site was not lawful under the Environmental Planning and Assessment Act 1979 when this Policy commenced.
(4A) Except as provided by subclause (4), nothing in this Policy or any other environmental planning instrument requires separate development consent to be obtained for the installation or placement of a moveable dwelling on land on which development for the purposes of a caravan park is being lawfully carried out.
(5) ……

26 The relevant Regional Environmental Plan (“REP”), being REP 20 – Hawkesbury-Nepean River, also requires development consent for use of land as a caravan park.

27 The subject land is zoned “Environment Protection Mixed Agriculture (Scenic)” under Hawkesbury Local Environmental Plan 1989 (“the LEP”). Caravan parks are not separately listed in the land use table, nor are they defined in the plan. They are, therefore, prohibited within the zone, but “tourist facilities”, “rural tourist facilities”, and “identified land uses” are permissible.

28 “Tourist facilities” are defined as:

“ a building or place that is used to provide refreshment, accommodation, recreation or amusement facilities for the travelling or holidaying public”.

29 An “identified land use” is a use for which consent or approval has been granted by Council, and which was in operation at the date Amendment No. 108 to the LEP commenced, namely 18 August 2006.

30 At a hearing before Tuor C in November 2006, counsel for the applicant submitted that the development in the relevant development application (“DA”), dated 18 April 2000, fell within the definition of “Rural Tourist Facility”, which is permissible in the zone, and defined under the LEP as:

“a building or place in a rural area that is used to provide low scale holiday accommodation, recreation or education for the travelling or holidaying public, and may consist of holiday cabins, horse riding facilities, refreshment rooms or the like”.

(3) The use of the subject land

31 Contrary to the way in which the applicant’s case was argued (see T5, L3-5), the question of characterisation of use is quite separate from the question of construction of consents.

32 The use of the subject land is to be properly characterised “in a common sense and practical way”, and by reference not to words used in documents, but to “actual development” on the land. Hopkins and Another v Tweed Shire Council and Another (2001) 113 LGERA 406, [2001] NSWLEC 75 (“Hopkins”); Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400, [2007] NSWLEC 114; Grace and Another v Thomas Street Cafe Pty Ltd and Others (2007) 159 LGERA 57, [2007] NSWCA 359.

33 Regardless of the view properly to be taken by the court on the question of valid development consent, the documentary evidence portrays development and activity on the subject land as entirely consistent with the definitions of “caravan park” in SEPP 21, and/or of “tourist facility” and /or “rural tourist facility” in the LEP, and the current use of the subject land can and should be so characterised.

34 In this regard it is to be noted that Tuor C observed that the park appeared to be operating more for the benefit of the shareholders who own a moveable dwelling or structure located on a site within the development “as a sort of holiday house”, rather than to attract tourists or the general travelling public on a more casual/informal basis.

35 The proven use of the subject land is not prohibited, but does require development consent.

(4) These proceedings seen in their litigation context

36 The caravan park’s relationship with its local council, originally Colo Shire Council and more recently Hawkesbury Shire Council, clearly has a long and complex history. (It would appear that the identity of the relevant council/consent authority changed in the late 1970s or early 1980s).

37 The evidence suggests there have been several proceedings in this court regarding this land/park, but the issue of permissibility of the continuing use of the subject land as a caravan park arose in the court for the first time in November 2006, during class 2 proceedings before Tuor C (Matter No. 20642 of 2006), and again in the subsequent s 56A appeal heard by Biscoe J in December 2007.

38 Those proceedings were commenced because Council had refused an application under s 68 of the LG Act for the installation of a moveable dwelling and an associated structure at “site 68” (formerly numbered “47”) on the subject land. The Council contended, in the applicant’s appeal before Tuor C, that, contrary to widespread assumptions, no consent existed for the applicant’s enterprise.

39 In her judgment on the class 2 appeal ([2007] NSWLEC 112), Tuor C was not satisfied that a development consent, compliant with the EPA Act, existed either for the use of the land as a caravan park, or for site 68 in particular.

40 On the s 56A appeal, Biscoe J held – in [2008] NSWLEC 39, as noted above – that, while it was necessary to have consents/approvals under both Acts, it was not mandatory that the development consent under the EPA Act be obtained prior to the necessary approval being granted under s 68 of the LG Act, or vice versa.

41 It is not disputed in these present proceedings that the applicant’s park currently enjoys a valid s 68 approval, but the court cannot find among the evidence any approval which is clearly still current as at today.

42 Biscoe J remitted the class 2 matter for further consideration on the merits, by the Commissioner, but the applicant apparently then decided to discontinue those proceedings and proceed first to resolve the issue of permissibility by obtaining an appropriate declaration in these separate class 4 proceedings. Hence the issue before me is existence of a valid development consent (“DC”).

43 Despite frequent references to historical events, and to statements and apparent assumptions made from time to time, including by the consent authority, that the park has enjoyed and continues to enjoy development consent, the case heard by me has not been run on the basis of any estoppel argument, nor by the applicant asserting any “existing use” rights.

44 In any event, proving that over time the Council might have proceeded on the assumption that the ongoing use of the subject land as a caravan park was lawful, does not make it so. How a Council might treat even its own decisions is not conclusive of anything.

45 Alleged consents must be properly construed, and Council and the applicant are entitled to have the question of consent determined by the court. As the applicant has taken the initiative, it bears the onus of proof.

(5) The law regarding construction of documents

46 The parties are generally in agreement on what the authorities have decided in respect of how courts should construe DC documents.

47 The construction of legal instruments, and the possible use of extrinsic materials in doing so, are regulated by s 34 of the Interpretation Act 1987, and the principles to be applied to the use of materials by the court in making findings of fact, generally, are dealt with in s 38 of the Land and Environment Court Act 1979. Both situations are to be contrasted with the established principles which govern the construction of DCs. (See the discussion of these matters by Jagot J in Blackington, at [66] ff).

48 DCs are not normally drafted by people with legal expertise. They are usually “drafted by town planners, to be read by town planners and non-legally trained people”. They “must be read in a common sense way”, and “construed, not as if the words were the language of a statute, but from a practical viewpoint”, in order to “give effect to the obvious intention of the draftsperson” (per Lloyd J in Kendall Street Developments Pty Ltd v Byron Shire Council [2004] NSWLEC 227, at [12]).

49 The relevant principles were repeated and endorsed by the Court of Appeal in Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd; Weston Aluminium Pty Ltd v Environment Protection Authority and Another (2006) 148 LGERA 439, [2006] NSWCA 273, and adopted without comment by the High Court on appeal in Weston Aluminium Pty Ltd v Environment Protection Authority and Another; Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd (2007) 156 LGERA 283, [2007] HCA 50 (“Alcoa/Weston”). They, therefore, remain as stated by Else-Mitchell J in Ryde Municipal Council v The Royal Ryde Homes and Another (1970) 19 LGRA 321, at 323, by Hope J in Auburn Municipal Council v Szabo and Another (1971) 67 LGRA 427 (“Szabo”), at 433-34, and by Handley JA (on behalf of the Court of Appeal) in Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council [No.2] (1993) 78 LGERA 404, at 407-8.

50 As summarised by Handley JA, the general rule is that:

“development consents, being public documents operating in rem for the benefit of successors in title, should be construed without reference to extrinsic evidence other than to identify a thing or place referred to in it. … However reference may properly be made to documents incorporated expressly or by implication into the consent.”

51 Mere approval of an application does not incorporate in that approval everything contained in or accompanying the application. As Basten JA observed in Alcoa/Weston (vol 148, at [39]): “[I]t is doubtful that the existence of a reference to another document in a consent is to be treated, generally, as incorporating the contents of the other document”.

52 Basten JA also relevantly held that there was nothing to stop a court looking at related development consents when construing a consent.

53 As Hope J had observed in Szabo (at 434):

“The terms of another document may be incorporated in the development approval either expressly or by necessary implication, but I do not think that it is possible otherwise to go to documents outside the formal approval in order to determine what has been approved".

54 His Honour also noted that the incorporation must serve a “relevant purpose”.

55 In this case the court was also taken to the application of these rules, with commentary, by Hemmings J in Halglide Pty Ltd v PT Ltd; Blacktown City Council and McNamara Property Management Pty Ltd (1990) 71 LGRA 215 (plans), Talbot J in Hopkins (Council minutes), the Court of Appeal (per Stein JA) in Winn v Director-General of National Parks and Wildlife and Others (2001) 130 LGERA 508, [2001] NSWCA 17 (“Winn”) (a letter with the DA), and Jagot J in Blackington (incomplete documentation). Other authorities are listed in the applicant’s submissions (at par 45) and in Winn, at [3].

56 While there is common ground between the parties as to these clear principles of construction, one difficulty for the court in cases of this kind is to carefully distinguish documents appropriately considered to be “incorporated” in a development consent, from documents (such as related consents) to which, in certain circumstances, the court may have regard in order to understand the factual background to the consent. The leading cases also acknowledge that where a consent has been granted, but cannot be found, reference may be made to extrinsic materials to prove its contents.

(6) The conduct of these proceedings

57 When the hearing of these proceedings commenced in April 2009, more than 5,500 pages of Council material regarding that history, in seven or eight volumes covering some 26 Council files, were placed before the court by the applicant. However, they were under objection from the Council, and they were not formally tendered in evidence. An index of sorts had been filed, and the applicant’s counsel, Mr N M Eastman, referred to many of those documents when seeking, in a lengthy opening, to link various “consents” and other events, to the extent that relevant documentation was available.

58 In his filed written submissions, Mr Eastman said (at par 29) that, while Council may have produced all of its files, they were not “complete”, as their contents revealed the existence of some other documents which were not among the material produced to the court.

59 Issues arose on the second hearing day (15 April 2009), before Mr Eastman had completed his opening, as to whether all relevant Council documents had been produced to the applicant or to the court. When it was verified that a key file, upon which Mr Eastman had opened as “missing”, had, in fact, been discovered to the applicant, and could be available to the court, the hearing was adjourned, at the behest of both parties.

60 The pleadings as they stood in April were then amended, and the documentary evidence reformulated, before the hearing resumed in August.

61 The applicant tendered in August a much slimmer volume of material (127 folios, plus index – Exhibit V1). Mr Eastman told the court (T21, L39-41) that only the “relevant part” of each key document had been extracted from the Council material produced. Mr Wilson foreshadowed objection to many folios, but I admitted the bundle, in full, subject to relevance (T16, L9-13), and Mr Eastman reopened the case on the basis of amended Points of Claim (“APOC”), dated 26 May 2009, and amended Points of Defence (“APOD”), dated 3 August 2009.

62 The applicant’s written submissions (dated 8 April 2009) were not updated or altered in any way, but the respondent’s (dated 13 April 2009) were amended (on 5 August 2009) by deletion of several paragraphs.

63 The court must decide this case on the evidence adduced, and not on the suppositions, suggestions and arguments advanced from the bar table, particularly at the aborted hearing in April, when extensive Council documentation was in the courtroom, but not “before” the court as evidence.

64 Nor can the case be decided on the basis of any evidence which was before Tuor C or Biscoe J. The exhibits before them were not placed before me, although part of a Council bundle numbered as Exhibit 9 by Tuor C appears in Exhibit V1 (at fols 122-127).

65 In his judgment in the s 56A appeal, Biscoe J made several critical comments (at e.g. [21], [23], [25], [33] and [45]) regarding the unsatisfactory conduct of the earlier class 2 proceedings. Having come now to decide these class 4 proceedings I can only echo His Honour’s remarks. Class 4 requires the parties to observe more closely the rules of evidence and procedure, and, frankly, the court has not been adequately assisted in its task on this occasion.

66 No oral evidence was called at either hearing of this present case, and the only sworn evidence before the court is that contained in two affidavits relied upon by the Council.

67 The streamlined bundle of Council documents produced by the applicant (Exhibit V1) has proven very difficult for the court. Jagot J seems to have had some similar difficulties in Blackington.

68 Obviously the conduct of the case has been complicated by a number of factors - 40 years of Council decisions and activity had to be reviewed and presented in manageable form; over time there have been many changes in the local government and planning systems, and in relevant legislation; the key player is no longer available to give evidence of his dealings, and several companies and individuals figure in the materials over time.

69 For convenience, and because a DC operates in rem, I have referred to all proponents of the park from time to time in its history as “the applicant”, despite the total confusion regarding “personnel”, and when they played their respective parts. The roles of various companies (Padaso Pty Ltd, David Hooker Investments Pty Ltd, Mt Andrew Recreation Pty Ltd) and the status of the “Gilling Family Estate” are also not defined. Nor is it clear if Portland Country Club, Paradise Point, Hawkesbury Country Club, and Hawkesbury Hamlet are to be regarded by the court as being the same as, or part of, Hawkesbury (Riverside) Retreat, and/or if any or all of them include Lot 1.

70 Each development application appears to have generated a new/separate file, while Council maintained a “master” or “property” file on the affected property or properties. No evidence was led to clarify what lands were covered by that Council file (“P 717/440” – see Exhibit V1, fols 52 and 54) at particular relevant times – but 40 pages from it were included in Exhibit V1. LG Act approvals also appear to have been processed on, and filed in, that general property file, but documents from the various Council files appear to have been freely copied and redistributed among the related files (T24, L18-20).

71 The authenticity of the documents in Exhibit V1 was not disputed, but the court received no real assistance as to where they take the argument between the parties. The bundle itself was presented in a largely unsatisfactory form: the documents occur in no sensible order, the copying is poor (apparently because many ‘originals’ are carbon copies on coloured paper – T27, L35), and the revised index, filed pursuant to a court direction, proved to be misleading in several respects. Many individual pages carry more than one folio number. Many documents appear more than once, many are undated, and many raise more questions than they answer. All have required close examination to try to be clear and correct in tracing the relevant history.

72 The documents became even more confusing when examined with the oral and written submissions to establish what, if anything, they prove. Many of them are only the first pages or other parts of letters, reports etc, and many of them are virtually illegible, even with the aid of a magnifying glass. In the case of one letter, copies of page 1 (of 2) can be found at folios 18, 61 and 113, and the only copy of page 2 at folio 46! The plans/maps among the documents have been very difficult to reconcile and deal with.

73 During the reopening of the applicant’s case on 5 August 2009 (see T33), I made it plain that the court could not and would not accept “evidence” from the bar table, and that I was deeply troubled by the way the Council documents had been presented by the applicant. I gave Mr Eastman the opportunity to ensure the court had before it sufficient (if not a full copy) of each relevant document, such as the SEE referred to in the prayer for relief, only the first page of which was in Exhibit V1 (at folio 106). Mr Eastman later tendered a partial copy of one Council file (which included the whole SEE), and the original of another (see T35-36). No further assistance was forthcoming.

74 In the end, apart from the Council materials in Exhibit V1, such as they are, and the bundle of documents in Exhibit C1, tracing the evolution of DP 862897, the court had the following documentary evidence before it in these proceedings:

Exhibit C2 – the original Colo Shire Council file No. 68A/9/68.
This was tendered by Council at the request of the applicant, in order for the applicant to put in evidence a complete and more legible copy of a letter Council wrote to Mrs Bensley, widow of D V Bensley, on 11 April 1979. Copies of the documents in this Council file occur at fols 1-28 of Exhibit V1 , but the file concerns Portion 15, not the subject land.
Exhibit V2 – a large and coloured unstamped plan, a miniature copy of which appears at folio 121 of Exhibit V1 .
This plan comes from Council file No. 68A/90/74, and has many markings on it, in at least three colours. These markings (including the dates “ 6/12/67”, “13/2/74”, and “2/8/74 ”) appear to have been made at different times, but are illustrative rather than probative.
Exhibit V3 – a copy of those parts of the relevant Council file, which Mr Eastman says (T35) comprise the consent to the DA numbered “ MA 619 ” (submitted to Council on or about 18 April 2000) including documents he says are incorporated into the consent by force of condition 1 of the consent.

75 Also before the court were two affidavits – one by solicitor Jane Elizabeth Hewitt, sworn on 16 December 2008, and the other by Council planner Gregory Gerard Hall, sworn on 18 December 2008 – both in the Council’s case (T34). Their evidence was uncontested, and concerns the December 2000 consent, and the despatch of the Council’s Notice of its Determination. It was tendered in view of there having been some controversy regarding notice of determination when the issue was before both Tuor C and Biscoe J, and I will return to that controversy in due course.

76 Not all the DAs and DCs mentioned in the APOC, and/or in the applicant’s written submissions, are supported by documentary evidence. The index to Exhibit V1 refers to 26 Council files, and to the Council bundle tendered before Tuor C (as Exhibit 9), but Exhibit V1 contains extracts from only 13 of the Council files (12 DA files plus the general property file) and from that earlier tender bundle. The plans at fols 123-127 (along with fol 122) are said by the index to have been in Exhibit 9. Those plans are not included in Exhibit V3. Exhibit V1, fol 121 is a miniature copy of Exhibit V2, but copies of parts of Exhibit V2 can be found also in Exhibit V1 at fols (1) 25 (mainly Portion 15, but (a) without the markings which appear on Exhibit V2, and (b) with a “government slip site” marked on it), (2) 124 (top third of Exhibit V2, but with different markings), (3) 125 (a central third of Exhibit V2, overlapping with fol 125, again with its own markings), (4) 126 (which is folio 125 upside down), and (5) 127 (the bottom of Exhibit V2, but endorsed as “amended 17/2/75”, rather than “amended 13/2/74”, as on Exhibit V2).

77 I turn now to record and review the amended pleadings in their final form.

(7) The amended pleadings

78 The APOC take the court to a series of Council decisions, upon some of which the applicant relies. The detailed APOD respond to them. I shall now attempt to distil the arguments so joined, taking them in the order in which they appear in the APOC.

The pleaded development applications and consents

79 On 6 December 1967, Council granted consent to two applications (numbers 68A/9/68 and 68A/10/68). DC 68A/9/68 approved “installation of 9 caravan sites” on portion 15, but, more relevantly, DC 68A/10/68 approved “erection of a minimum of 6 holiday cabins” on Part Portion 18.

80 The applicant pleads that since then the subject land “has been used as a tourist and recreation area, including for the use of caravans”, and contends that consent No. 68A/10/68 allowed development for the purposes of what SEPP 21 describes as a “caravan park”. The Council refutes these contentions – if so used, the Council asserts that the land has been unlawfully used.

81 On 31 May 2001, Council granted consent to an application dated 25 February 2001 to modify that 1967 consent, and the applicant relies on that modification consent, and on a plan Council stamped as “approved” when it was granted, to contend that they constitute consent to a development of the subject land as a SEPP 21 caravan park. The Council admits the consent, but refutes the contention, contending itself that the modification application concerned only the identification of particular sites remaining to be constructed under the 1967 consent. The modification plan shows “existing and proposed” caravan sites numbered 1-72 (Exhibit V1, fol 95), including site 68, and was dated 15 March 2000.

82 On 14 January 1970, Council granted consent for establishment of a service station and refreshment room. The Council contends that the development site was on Portion 15, not the subject land.

83 On 15 March 1975, Council granted consent No. 68A/90/74, on conditions, for erection of various improvements on land owned by Mr Bensley. There were several applications before Council at the time (possibly not limited to the subject land), and they included details of the use of the subject land “as a caravan park”. The applicant contends that the conditions include some “regulating the use of the land for the purpose of a caravan park”, and that Council, when approving “additional sites” subsequently, has treated the consent as being for such a use of the land. The Council denies (or at least does not admit) any of the APOC concerning this alleged 1975 consent.

84 Another DA (No. 68A/30/75) was submitted during 1975, seeking consent for the erection of four amenity blocks. The applicant says that these formed part of a “comprehensive plan before the Council being 68A/90/74”. Submitted with this DA was a plan, “as amended 17 Feb 1975”, depicting 49 caravans and including 25 caravans on site. The applicant acknowledges that the Council file contains no record of a consent being granted to this DA, but contends that its associated plans form part of the plans approved in DC 68A/90/74. The Council does not admit the APOC referring to this DA, and contends that it is not relevant in any event.

85 The applicant then goes on in the APOC to plead that Council granted consents in 1981 (No. 580/1981) for a private recreation club incorporating 65 cottages, a golf course, and other facilities, and in 1993 (No. 245/93) for a sewerage system for 25 caravan sites on the subject land. No documents are put forward regarding either of these matters. Council contends that No.580/1981 did not concern the subject lands, but admits that a consent numbered 245/93 was granted.

86 In 1997 Council granted a DC numbered 26/97, and the applicant contends that the consent allowed relocation of sites 5 to 28, including allocation of caravan sites to cabin sites 5, 6 and 25, with sites described as “relocated” being relocated from the positions depicted in the approved plans for DC 68A/90/74. A condition of DC 26/97 requires development to be carried out in accordance with Plan 88228/2 dated 28 January 1997. That plan is stamped “approved” as at 3 April 1997, is entitled “Plan showing facilities at Hawkesbury Country Club Paradise Point”, and depicts 46 caravan sites and associated facilities on the subject land. The applicant contends this 1997 consent allows development of a SEPP 21 caravan park on land including the subject land. The Council denies this contention and relies on the actual terms of the consent and their true construction for its “full terms and effect”.

87 On 22 April 1999, this court, in matter 10956 of 1998, granted conditional consent to DA No. MA 319/98 seeking an “additional” nine caravan sites (to the 46 said to be existing) on the subject land – “additional” meaning additional to the sites depicted in the approved 68A/90/74 plans, and one of the conditions requiring development in accordance with a submitted plan dated 31 August 1998 (depicting a total of 55 caravan sites). Again the Council relies upon the actual terms of the court’s orders and their true construction to find the “full terms and effect” of the consent.

88 On 18 April 2000, Glenys Gilling submitted a DA numbered M 619/00, together with (1) a Statement of Environmental Effects (“SEE”) seeking consent for an “additional” 12 caravan sites – “additional” meaning additional to the sites depicted in the approved 68A/90/74 plans, as revised by the court’s consent to 319/98 – plus (2) a “revised site plan dated 15 March 2000”, and (3) an additional plan “showing Existing and Proposed facilities”, also dated 15 March 2000 and including the 1997 additions.

89 Council issued a Notice of Determination of M 619/00 on 20 and/or 22 December 2000, and a stamped “approved” plan dated 22 December 2000, depicting 72 caravan sites and appropriate facilities on the subject land. Council admits that a SEE and a plan were submitted, but contends the consent is represented in the 22 December version of the Notice of Determination. Again Council relies upon its terms, as properly construed.

The pleaded LG Act approval to operate

90 The applicant pleads that the subject land has current LG Act approval (29 June 2005–28 June 2010) to operate as a caravan park having 64 short term sites, 6 holiday cabins, 1 manager’s residence, and 6 associated storage sheds (c.f. the position in Blackington). The Council did “not plead” to that APOC, but did not dispute at the hearing that the applicant holds a current s 68 approval (see [41] above).

Other Points of Defence pleaded

91 In response to the applicant’s Amended Points of Claim in general, the respondent Council says (APOD pars 36-38):

“ 36. In answer to the whole of the Points of Claim, insofar as the Applicant relies upon development consents granted either by the Colo Shire Council or the Respondent, the Respondent does not know and cannot admit whether any of the consents relied upon by the Applicant are operative consents within the meaning of the Environmental Planning and Assessment Act 1979.
37. Further, and in the alternative, in further answer to the whole of the Points of Claim, insofar as the Applicant relies upon consents granted either by the Colo Shire Council or the Respondent, the Respondent does not know and cannot admit whether any development in any of those consents was substantially commenced or commenced.
38. In further answer to the whole of the Points of Claim, insofar as the Applicant relies upon development consents granted by the Colo Shire Council or the Respondent, the Respondent does not know and cannot admit whether the consents or any one of them has lapsed or otherwise has continuing operation.”

92 The Council also pleads discretion, on the basis that the second respondent, rather than the applicant, owns the land in respect of which the declaration is sought.

(8) Consideration of the evidence

LG Act approvals

93 As noted above (at [41] and [90]), it is not disputed that the applicant’s park currently enjoys a valid s 68 approval. Such approvals were formerly called “licences”. Licences and approvals from as early as 1983 are copied in Exhibit V1 (at fols 57, 72, 78, 81, and 82).

94 The earliest “licence” issued (in October 1983 – fol 81) was in favour of Padaso Pty Ltd in respect of “Portland Country Club” on portions 18 and 19. The second “licence” (in November 1987 – fol 82) was described as “provisional” and was issued to Padaso Pty Ltd in respect of Portions 18/19 and Portland Country Club, but noted Padaso’s address as “C/- David Hooker Investments Pty Ltd”. Two more (at fols 72 and 78) are undated, but must have been issued after November 1996, as they refer to Lot 1 in DP 862897. Both were issued to Glenys Gilling. One speaks of “Hawkesbury Retreat” (fol 72) and the other of “Hawkesbury Country Club” (fol 78). At fol 83 the court finds the first page of a Council report dated 29 February 2000, considering an application by Ms Gilling to have the then current approval amended to allow installation of manufactured homes on flood liable land in certain conditions. The latest LG Act approval in the evidence is dated 13 April 2000 (see fol 57). It was issued to Hawkesbury Riverside Retreat Ltd and deals with Lot 1.

95 Clearly, the existence of a LG Act approval, relevant to a park or to a particular site shown on a plan, does not constitute a valid development consent for that use or site.

Which consents?

96 Many consents are mentioned in the pleadings, in the applicant’s submissions, and in various letters and other documents found in Exhibit V1, Exhibit V3, and Exhibit C2.

97 The Council admits some consents, but submits that they are site or area specific in their impact, and that there is no consent for the whole of the subject land to operate as a caravan park. See Eaton & Sons Pty Limited v The Council of the Shire of Warringah (1972) 129 CLR 270, at [278] per Walsh J, and Salvation Army v Newcastle City Council (2000) 107 LGERA 40, [2000] NSWLEC 36 at [30]-[33] per Pearlman J, referring to Steedman v Baulkham Hills Shire Council (No.1) (1991) 87 LGERA 26, on the need for precision in the identification of “land” for which any approval is given.

98 Among the material now before the court I can find seven “lists” of applications, consents, and/or refusals –

(1) there are five approvals listed in a letter to Mrs Bensley ( Exhibit V1 , fols 5 and 6, and Exhibit C2 , folios 5 and 7);
(2) there are eleven applications listed in a Council report of 25 November 1997, covering “ recent years ” ( Exhibit V1 , fols 64-66 – five approved, four refused, and two deferred);
(3) there are seven applications listed in a letter Council wrote to its solicitors on 7 January 1998 ( Exhibit V1 , fols 49, 59-60 – five had received consent; in respect of one other it is said that “ no consent issued ”; and in respect of the remaining one it is noted “ no consent on file ”);
(4) there is a partial list, of four DAs “ submitted in recent years ”, on the front page of a Council report dated 29 February 2000 (fol 83);
(5) there is a simple summary of the effect of “ existing approvals ” contained in the SEE dated 18 April 2000 ( Exhibit V3 );
(6) there are eight consents listed in a s 149 certificate dated 18 April 2002 as having been granted “ within the past 5 years ” ( Exhibit V1 , fol 68); and
(7) thirteen consents are listed in the applicant’s written submissions (at par 27).

99 In addition, various items of evidence refer, quite spasmodically, to other DAs.

100 In his written submissions, in the paragraph immediately following list (7) above (i.e. in par 28), Mr Eastman says:

“ Each of the development consents must be given some attention in respect of the analysis of the characterisation task ”.

101 However, in the end analysis, the applicant came to rely really upon any or all of:

(i) the original consent No. 68A/10/68,
(ii) the modification of that consent in 2001,
(iii) consent No. 68A/90/74,
(iv) consent No. 26/97,
(v) the court’s consent to application No. 319/98.
(vi) consent No. 619/00.

102 The court needs to be satisfied that those consents actually relate to the subject land, namely Lot 1, and as to whether they cover its use, or the use of site 68 in particular, as “caravan park”, either on their face or by reason of what is contained in plans or other documents correctly regarded as incorporated in them.

103 I turn now to review the relevant evidence in chronological order, dealing with the above agenda, therefore, in the order (i), (iii), (iv), (v), (vi), and, lastly (ii).

The 1967 Consent – Item (i)

104 The original 1967 consent 68A/10/68 was granted by Council on 28 November 1967 and issued on 6 December 1967 (Exhibit V1, fols 62 and 93 – and Item 10 on fol 7). It approved “erection of a minimum of six holiday cabins to be sited as shown on” the DA form (see sketch plan at fols 63 and 94).

105 On comparing that plan with Exhibit C1, and despite the confusion created by a comparison of fols 35-37, 63/94, and 123 in Exhibit V1, I am prepared to accept that the cabins approved were to be placed in specific positions (however unclear) on that part of Portion 18 which later became Lot 1. However, eventually, the applicant saw a need to seek clarification of their location, in a modification application in 2001, to which I will return.

106 There is no evidence to support a finding that the six cabins as approved met the definition of “moveable dwelling”, rendering that 1967 consent a consent for “caravan park”, let alone a caravan park occupying more land (even within Lot 1) than was covered by those sites.

Is there a 1975 Consent? – Item (iii)

107 There is no evidence of contact between Mr Bensley and the Council following the 1967 consent until about 1973, apart from a reference to a subdivision approval dated 4 August 1970 (68A/596/70) referred to in a letter to its solicitor in 1998 (Exhibit V1, fol 59). (In other correspondence the date is given as 28 July 1970 – see [134]).

108 From his letter to Council dated 20 February 1974 (at fol 31 of Exhibit V1), it appears that on 11 December 1973 Council may have directed Mr Bensley to prepare sketch plans “of the whole place”, and that on 15 February 1974 Council required of him “floor plans and elevations of proposed buildings to be used as amenities”. He informed Council that he was also, in early 1974, preparing a “separate application” in respect of a “sports area to be used by motor cycle riders”.

109 Clearly Mr Bensley was, from about 1975, evolving some form of “grand plan” for his lands (not merely Lot 1 – see Exhibit V1, fols 29 and 30) to become an “integrated holiday area for both active and passive recreation”, involving provision of “a very complete service to holiday crowds, including all sports … golf, tennis, motor cycle riding, horse riding, squash etc” (Exhibit V1, fols 12, 21, and 26).

110 It would appear that some developments towards that objective were undertaken without the requisite Council approvals (Exhibit V1, fols 27-30). Council agreed in principle with the “grand plan”, but was concerned that it be achieved “in an ordered fashion and to an acceptable standard” (see Exhibit V1, fols 11, 13 and 117). Part of any regularisation of unapproved developments would also need proper arrangements to be made regarding the nearby public reserve (Exhibit V1, fols 22 and 29). There were also comments in March 1974 that the industrial and commercial aspects of the development may adversely impact on traffic and rural amenity (see Exhibit V1, fol 120).

111 In about August 1974, Mr Bensley or his agent (see Exhibit V1, fols 12, 21, 26, 118, and 119) in speaking of his “plans … for the development of this property, over a period of many years”, said:

“ The enclosed perspective sketches for caravan shelters and amenities, are copies of similar application submitted and approved in principle in 1967. I would define our objectives as being an integrated holiday area for both active and passive recreation.
It is hoped to ultimately provide a very complete service to Holiday crowds, including all sports to provide separate areas for golf, tennis, motor cycle riding, horse riding, squash, etc.”

112 At about the same time, Council officers, in a report to Council or a Council Committee dated 20 August 1974 (partly copied at Exhibit V1, fols 11, 13 and 117) noted:

“ Council, in its consideration of this matter, is no doubt aware of the previous dealings with Mr. Bensley and his continual erection and use of structures without approval.
The area is one in which a recreational usage similar to that proposed would be ideal if developed in an ordered fashion and to an acceptable standard.
Council should advise Mr. Bensley that it agrees, in principle, that the establishment of the recreational centre similar to that he proposes on the subject land, but considers that firstly, and prior to any consent being issued, that he is to comply with all prior directions of Council in relation to existing development on the land”.

113 Also at that time, proposals 68A/90/74 and 68A/3/74 were current, referable in general to “Pt. Por. 18/19, 15, 17, 41, 7, 61/2, 34, Pt. Res. 3561”, having an area of 988 plus acres. It would appear that a DA No. 68A/30/74 may also have been current as those DAs progressed, but it is more likely that a DA No. 68A/30/75 was made afterwards.

114 DA 68A/3/74 (at Exhibit V1, fols 32-33) comprised two sheets of typing, both being DA forms. The DA was is in the name of Mr Bensley, but is quite illegible, and I can make out no date. One line I can almost read appears to say: “This is an application for approval in principle to overcome deletions in the original approval … 4^th April 1967”. (There is no evidence of any April 1967 approval). The DA dealt with all the portions of land then associated, and the area was again said to be 988 acres. Both forms have a heading “Present Use” and it is stated on fol 32 as “holiday farm”. Some words are added on fol 33 and seem to refer to sand operations, service station, rural workshop “precast [??] items”, and motor cycle tracks. The buildings/additions proposed are said to be: “The necessary facilities for overnight/holiday accommodation, together with boating and tourist amenities”, and their proposed use is “Tourist and Recreation Area”.

115 Under the heading “Details of Proposed Development”, folio 32 says:

“ It is hoped to ultimately provide a very complete service to Holiday crowds, including all sports, both active and passive water sports, to provide separate areas for Golf, Tennis, Motor Cycle riding, Horse riding, Squash etc.
It is not intended to clear any trees excepting those in the immediate path of Trails Driveways or Buildings .”

116 Folio 33 is barely legible but, under that same heading, it appears to make some mention of sketches showing:

“ the development of this property over a period of many years, however all the proposals will be started within one year. Rest are started at present, under the existing use section of the IDO.
The motor cycle tracks are not formally [?] in use other than in tenants use of the area set aside.
Where possible we will try to reach a much higher than average standard …” depending on cash flow (?).

117 Folios 35-37 of Exhibit V1 appear to be three identical copies of the same sketch plan, taken from the Council file on 68A/3/74, which shows Portions 18, 19, 15, 17, 41, 7 and 34, and the reserve, and carries the typed notation:

“EXISTING USE 13:3:1964
Portion No.s 18/19 15 17 41 7
Caravan Area, Extraction of Sand, Soil
Rural Workshop, Pre.Cast Concrete Items
Portion No.34
Extraction of Soil, Sand, Rubbish Dump.”

118 In 1998 Council told its solicitors (Exhibit V1, fol 60) that its file on this DA 68A/3/74:

“ suggests that Council resolved to invite Mr Bensley to submit an interim development application for that portion of his property containing the unauthorised structures. The Council then resolved to approve some development and disagreed with a timetable for the undertaking of works ”.

119 DA 68A/90/74 would appear to have been in the nature of a “comprehensive plan” for the park, but, despite location of the file between the hearings in April and August 2009, there is no copy of the actual DA before the court. Mr Bensley suggested that the plans before Council in March 1975 were a repetition of the “plans approved in 1967” for Part Portions 18, 19 and 15 (Exhibit V1, fol 109). The plan/map in Exhibit V2 was taken from Council’s file on this DA (see Exhibit V1, fols 121-7, and [74]), and the red markings on it would all appear to have been made on or before “13/2/74”, as noted on it. There is no evidence to link it to the August 1974 consideration of this DA by senior Council officers (Exhibit V1, fols 115-120). There is, however, an indication (on that part of Exhibit V2 which appears in Exhibit V1, at fol 127) that the plan was the subject of further amendment on “17/2/75”.

120 DA 68A/30/75 (for four amenity blocks) could possibly be confused with DA 68A/3/74 because of Council’s numbering system. There are handwritten markings “5379” and “5407” on this DA (Exhibit V1, fols 108/122), and they appear also on DA 68A/3/74 (Exhibit V1, fols 32/33), but the court has proceeded on the basis that it is a separate, but related, proposal. The same markings appear on the document (at fol 48 of Exhibit V1), which is said by the index to be DA 0026/97, and states its proposed development as “renewal of 68A/487/69”, and as affecting Portion 15. While that document is also illegible, the date on the top of it could be 4 February 1974. Copies of the DA (see Exhibit V1 at either fol 108 or fol 122) state quite clearly Mr Bensley’s contention that he was seeking approval for “4 Amenities Blocks” as “part of a comprehensive plan – before Council. 68A/90/74”. Mr Eastman conceded (T27, LL27-29) that two of the four were to be on Portion 15 and two on Lot 1. (In respect of DA 68A/487/69, Council’s letter of 7 January 1998, at Exhibit V1, fol 59, notes the grant of consent on 14 January 1970 for a service station and refreshment room, but that the service station did not appear to have proceeded).

121 The almost illegible report said to be taken from the 68A/30/75 file (see Exhibit V1, fol 107) refers to “Interim Development Application No. 30”, which could link it to the “68A …” numbering system. The report gives no “particulars of land (as per application)” and no “details of proposed development”. However, in the “Report” section the following text can be found: “The erection of 4 amenity blocks in conjunction with caravan park and cycle track is inconsistent with the rural environment”. Mention is then made of access and traffic issues, and neighbourhood amenity (noise, dust and visual intrusion upon the landscape). Interestingly, given the subject of these current proceedings, the document goes on to note: “No consent appear (sic) to have been granted to the associated uses of the lands”. In the margin, the following appears: “Note: 2 toilets already erected in conjunction with the motor cycle track”.

122 Meanwhile, at its meeting on 12 February 1975, Council’s relevant committee resolved, specifically on those two primary files, Nos. 68A/3/74 and 68A/90/74 (see Exhibit V1, fols 9, 22 and 115), that:

“1 . Mr. D. V. Bensley be invited to submit an Interim Development Application for that portion of his property containing the unauthorised structures.
2. Application be made by Council to the Lands Department for the care, control and management of that part of the Reserve not held under permissive occupancy.
3. Council recommend to the Lands Department that that portion of the Reserve now occupied by unauthorised structures be included in the permissive occupancy, and that the Lands Department be advised of Council’s decision .”

123 Council obtained clarification regarding the reserve, and ultimately resolved on 18 March 1975 (Exhibit V1, fols 9, 10, 19 and 116), relevant to files 68A/90/74 and 68A/3/74, inter alia (but with no reference to any DA numbered 68A/30/74) that:

“ 1. The development of Part Portions 18/19, 15, 17, 41, 7, 61/62, 34 Part Reserve 35631, Parish of Hawkesbury, Greens Road, Lower Portland, by the erection of buildings for service station, administrative and kiosk complex, incorporating boat sheds, pontoon and wharf for a marine outlet, be approved, subject to:
(a) conditions as set out in Health Surveyor’s report to D. & E.P. Committee dated 20 ^th August, 1974.
(b) conditions as recommended by Shire Engineer’s report to D. & E.P. Committee dated 20 ^th August, 1974.
2. The cessation of the unauthorised industrial activity of sand processing on the site.
3. The submission of a detailed time table for the development to ensure that the development proceeds as set out in the application.
4. The formal consent to be withheld until conditions (2) and (3) have been complied with”.

124 A letter, in similar terms to the resolution, issued to Mr Bensley on 19 March 1975 (Exhibit V1, fols 47 and 114 – but a Council letter of 7 January 1998, at folio 60 of Exhibit V1, would appear to refer incorrectly to this letter having been sent on 19 March 1979). The resolution amounts to a grant of what would be later called a “deferred commencement consent”, and the letter must be seen as Council’s notice of its determination of the relevant application on certain conditions precedent.

125 In respect of DA 68A/30/75, Council’s letter to its solicitor on 7 January 1998 (at fol 60 of Exhibit V1) reports that no consent could be found on Council’s file, despite Council’s assessment recommending approval of the four amenity blocks.

126 Council wrote to Mr Bensley again on 2 April 1975 (p1 is in Exhibit V1 at fols 18, 61, and 113, and p2 is at fol 46) elaborating at length on the conditions “1(a) and (b)”. That letter invited Mr Bensley to submit plans and specifications for all proposed buildings before commencing any works, and insisted on several operational standards. Council also stressed the requirement for “cessation of the unauthorised industrial activity of sand processing on the site”.

127 Mr Bensley responded on 17 April 1975 (p1 only of his letter appears in Exhibit V1, at fol 112), expressing pleasure that “the former piecemeal development of my property has now been consolidated into a systematic plan, I hope that some of the building plans, held up for lack of Development approval, can now be considered”, and dealing at some length (at least on that first page of his letter) with the implementation of those conditions. A Council report dated 13 May 1975 (of which, again, only one page is available to the court, but twice – in Exhibit V1 at fols 17 and 110) quotes Mr Bensley’s letter of 17 April.

128 On 12 June 1975, Mr Bensley wrote to Council again (complete copies appear at fols 8, 16 and 109 of Exhibit V1), apparently in response to a letter not before the court, dated 29 May 1975, regarding 68A/90/74, in the following terms:

“ The Plans considered by Council on the 18 ^th March 1975, are a repetition of plans approved in 1967, which were in turn submitted on the advice of Council’s Planning Officer, to record and formalise the Existing Caravan and Camping use of Por.Pt.18/19 & 15.
The Plan now considered is in the main identical with the book of sketches and plans submitted to Council, to illustrate our intentions, in 1967. The main difference is the inclusion of camping areas for Por. 41, 61/62. and Pt R35631. The reason for this inclusion is that some people wish to get away from the rest of the holiday crowds, in fact refuse to camp within sight of another group.
Portions Pt.18/19..15..and 34 are in use as caravan areas and are substantially started, the extension of the Caravans to the part of Portions Pt.18/19 and 15, on top of Mount Andrew is dependent on the completion of the access road, not having the money to employ a contractor nor any grant of Government money for this purpose, I am doing this myself by hand with pick, shovel, 10lb. Hammer & wedges, crow-bar and a 7/8” star drill borrowed from a neighbour. I am sure it would be an education to the Engineering staff, to see what one fairly old man has achieved in three weeks with this primitive equipment.
The Motor Cycle areas have been in use for years, and the earthworks and tree planting for the Golf Course for about one year.
I think this outline will explain to council that all the Proposals before Council on the 18 ^th March 1975 are substantially started, all buildings necessary to service the projects will be started within 12 months of the approval. These will be completed as soon as funds and my time allow. I expect to complete all works by 1980.
I want to quote from your letter of the 29 ^th May,1975. Par. 3 “with Council undertaking the construction as funds become available”.
I must point out that I am in no way different to Council in that I have to await the funds before I can spend them.”

129 From the order in which the documents appear in Exhibit V1, the court assumes that the following resolution (at fol 111) was adopted by Council after Mr Bensley’s letter of 17 April 1975 and before that of 12 June 1975, but it is certainly relevant to the post-approval negotiations towards activating the consent at that time:

“ That:
(1) Council advise Mr. Bensley that it considers his time-table is inadequate and should take the form of indications on his plan of development of times of construction and locations.
(2) The requirement for the reconstruction of Greens Road will take the form of a plan to be prepared by Council indicating an improved horizontal alignment within a 20 metre reserve which the applicant will be asked to dedicate free of cost to Council, with Council undertaking the construction as funds become available.
(3) The applicant’s attention be again drawn to the fact that Development Consent granted at the meeting of 18 ^th March, 1975 was subject to the cessation of the unauthorised industrial activity of sand processing on the site.”

130 There is no evidence whatsoever to support the incorporation in the consent of (1) the sketch plan (at fols 35-37 of Exhibit V1 – see par [117] above), nor of (2) the plan in Exhibit V2, nor of (3) the version of that plan in Exhibit V1, fols 125-7 (see [76] above). Even if any of these plans were incorporated, there is no evidence, such as a formal consent, to indicate that conditions (2) and (3) of the 18 March 1975 Council approval were complied with, so as to make the alleged March 1975 consent operational at all. Incorporation of Exhibit V2 would mean the consent increased the number of sites on Lot 1 from an existing 25 to a total of 37 (ie not as many as 47), but the sites depicted on Exhibit V2 were numbered from west to east. (Numbering from east to west commenced prior to the next plan in date order, namely 1993). Incorporation of the 17 February 1975 version would take the total to 52 (ie more than 47, so creating a site 47), but none of the sites depicted in that version was given a number.

131 Council’s letter to its solicitors dated 7 January 1998 (fol 60) records a consent having been granted for a dwelling on the subject land (68A/127/75) on 4 July 1975 (other correspondence refers to this DC as dated 27 May 1975 (see [134])).

132 The court is not prepared to find that the documents surveyed in this section of the judgment evidence a consent granted in 1975 (in matter 68A/90/74 or otherwise) to anyone having a caravan park on Portion 18/Lot 1, nor to find that they evidence a consent to the establishment, specifically, of a site which would later become site 68.

Events 1975-1997

133 Council wrote a letter to Mrs Bensley on 11 April 1979, after her husband’s death (Exhibit C2, fols 5 and 7 and Exhibit V1, fols 5 and 6). Its stated concern was “development on Portions 7,15, 17, 41, 61 & 62 & Pt Portions 18 & 19” (Portion 34 and the reserve were not mentioned).

134 Council referred to an earlier letter dated 6 July 1978, which the court cannot locate among the tendered materials, and also referred to Mrs Bensley’s wish (of which there is also no evidence) “to regularise the situation” regarding developments which had occurred without approval. Council had concerns about tyres stored on the land, and set out the “only approvals” it had granted, which relevantly included:

The two 28 November 1967 approvals for cabins on the subject land and for caravans on Portion 15 (see Exhibit V1 , fol 7, items 9 and 10).

An approval on 13 January 1970 for the establishment of a service station/refreshment room, on certain conditions (somewhat relaxed at Council’s March 1970 meeting).

An approval on 28 July 1970 to a proposed subdivision of Part Portions 18/19 to create 3 lots (one between 0.25 and 1 acre, one not less than 25 acres, and a residual lot of “ about 59 acres ”.

An approval on 15 December 1970 for sand extraction and treatment on Part Portion 18. (Council noted that that approval had lapsed but that Mr Bensley had successfully appealed, and Council said it would be prepared to reconsider the matter).

The approval on 27 May 1975 for the erection of a dwelling house on Part Portions 18/19.

135 Council invited Mrs Bensley to prepare a plan of “all existing improvements and desired development for which approval is sought”, and discuss it with Council before any DA was made.

136 On 13 August 1980, the then President of Colo Shire responded to the Ombudsman (Exhibit V1, fols 2-3) regarding a complaint by a neighbour of Council inaction following complaints about a bike track on land “owned by Mt Andrew Recreation Pty Ltd”. The letter included the following paragraphs, before it went on to deal with the “moto cross track” issue :

“Council has dealt with numerous development applications on the subject land since 1968 and found it necessary to instigate various actions with respect to development on the land.

The land owner with whom Council has been dealing died in 1979 and the land was transferred to the ownership of five members of his family. In July 1979 those persons approved an interim development application being submitted to council by Mount Andrew Recreation Pty. Ltd. for the establishment of a caravan park and moto cross track. At this time a caravan park existed on the land, as did a number of other uses including a mini bike track. In this regard I enclose for your information a copy of the letter dated 11 April, 1979 from Council to Mrs. D. Bensley of Lower Portland detailing the development situation on the property.

At its meeting in October 1979 council approved the establishment of a recreational complex, being a caravan park and associated facilities subject to 28 conditions. Council further gave approval in principle to a second stage development of the caravan park, but required submission of an application detailing the proposal prior to formal consent being granted.”

137 There is no evidence before the court in this case regarding any October 1979 approval.

138 A Council report in November 1997 (Exhibit V1, at fol 64) notes the granting of consent to DAs numbered 442/81 and 11/82, both involving private recreational clubs and associated cottages (65 of them in DA 442/81) and other facilities. (The APOC record this as Consent No. 580/81).

139 The evidence before the court is otherwise silent about a lengthy period of time, except for a barely legible plan at fol 40, which is dated “8.9.93”, concerning mainly trees on Lot 1 and some land on the opposite side of Greens Road. That is the only document contained in the section of Exhibit V1 said to be drawn from the file on DA 243/93. The index to Exhibit V1 refers to 1993 DAs numbered 243, 244 and 245, noting that 243 and 244 were refused. The Council report (at fol 64 of Exhibit V1) confirms those refusals (DA 243 having been for a 40 unit manufactured home estate and DA 244 for a tavern, motel, etc), and notes that DA 245, covering sewerage facilities for 25 sites, received consent. That consent was not mentioned in Council’s letter to its solicitors six weeks later on 7 January 1998 (Exhibit V1, fols 59-60). The November 1997 report also refers to the refusal of DA 174/94 (for 40 homes, 10 motel units, a tavern, etc).

140 The next section of Exhibit V1 (fols 41-44) is said to come from the Council file regarding “DA 0038/95” (also referred to as “DA 38/95/CSV” and as “DA 38/94/EVD”), which was received 27 February 1995 and proposed the removal of the “existing caravan park” and the sand processing operation, in favour of 40 cottages, 20 motel units, boat storage for 40 craft, and other related facilities, to be developed in stages.

141 The Council officers’ report dated 2 May 1995 (of which pages 4, 5 and 11, covering the relevant agenda item, appear at Exhibit V1, fols 41-43) noted Mr Hooker as applicant, Padaso Pty Ltd as “owner”, the land affected as “Lot 18 DP 753784 79 Greens Road”, and the site area as 28.33ha, presumably the whole of Portion/Lot 18, and certainly more than that area of Portion 18 which became Lot 1 eighteen months later.

142 The report noted (p5/fol 42), under the heading “Existing Development”:

“ The site currently contains a caravan park which, under normal circumstances, would be licensed to accommodate 46 caravans. Mr Hooker also claims ‘existing use rights’ on four existing cottages located close to the river. The legal status of these cottages would need to be established. All of the caravans are located towards the property’s boundary with the Hawkesbury River. The caravan park is not licensed at the present because of the following unresolved problems …”.
(Those problems were then listed, and they were discussed in a little more detail at p11/fol 43).

143 The DA was recommended for approval, with the author of the report concluding (p11/fol 43) that “the quality of development at the site will certainly improve, increasing the level and quality of tourist accommodation currently available in the locality”. In the event, Council resolved on 9 May 1995 (Exhibit V1, fol 44) to refuse the DA on a number of grounds. The November 1997 Council report (Exhibit V1, fol 64) notes that an appeal to this court confirmed that refusal.

The 1997 Consent – item (iv)

144 On 14 February 1997 Ms Gilling lodged DA 26/97, proposing relocation of the then existing caravan sites numbered 5-28 further away from the river’s edge, and the inclusion of “existing holiday cottage sites 5, 6 and 25” in the “approval to operate a caravan park” (Exhibit V1, fol 53, par 1).

145 The DA is not before the court, but the first page of a relevant Council report (not the assessment of the DA), dated 4 November 1997, and the first page of Council’s undated Notice of Determination are (see Exhibit V1, fols 53 and 51 respectively). On its face, page 1 of the consent does not indicate its incorporation of any other documents, but there is a stamped plan in the evidence (copied at fol 50 of Exhibit V1).

146 It appears from that Council report that the DC was issued on 4 April 1997, but the plan bears the date “3/4/97”. It shows sites numbered 29-50, including a site 47, and sites the court presumes are sites 5-28 located inland of the river’s edge.

147 The DC, in its terms (Exhibit V1, fol 51), consented to “Relocation of sites 5 to 28 inclusive including allocation of caravan sites to existing 3 cabins, being sites 5, 6 and 25”. (In its letter of 7 January 1998 to its solicitor (Exhibit V1, fol 59) Council noted, in the context of its item on the 1967 consent, that “the three cabins which were recently incorporated in the caravan park approval” came from the six approved in 1967).

148 The 4 November 1997 report addressed the complication of the DC by the flood related conditions of the LG Act approval issued on 28 August 1996 concerning manufactured homes, and referred to some then current proceedings in this court.

149 Mr Eastman submitted (pars 35-36), consistent with the APOC ([86]):

“ Accompanying the DA26/97 was a plan dated 28 January 1997 described as ‘Plan No. 88228/2’. This plan depicts, inter alia, 47 caravan sites on the land.
On 3 April 1997 consent was granted to DA26/96 including the notation the development shall be carried out in accordance with Plan No. 88228/2, dated 28 January 1997.”

150 The court cannot decipher a marking “88228/2” on fol 50 (of Exhibit V1), nor can I find any such notation on the extract from the DC (Exhibit V1, fol 51).

151 On 11 November 1997 Council resolved “that matters relating to this property be deferred until resolution of the outstanding matters associated with the caravan park”. The current outstanding applications” were said to be “DA 109/97 (proposed 30 community title ‘weekender’ cottages, and no caravan park). DA26/97 (DA approval for relocated sites for which variation is sought under the caravan park approval to allow manufactured homes), DA/BA1128/97 (proposed manager’s residence)”. (See Exhibit V1, fol 64, par 1).

152 In the “Site History” included in an officers’ report to Council two weeks later (Exhibit V1, fols 64-65) it was noted that DA 26/97 had been approved and that the other two items had been deferred. DA 109/97 was described as “Application for the removal of the caravan park and its replacement with thirty (30) community title ‘weekender’ cottages and ancillary facilities”. DA/BA 1128/97 was described as “Application for Manager’s Residence”.

153 The 25 November 1997 report went on to note (see Exhibit V1, fols 65-66) that there were major outstanding works required, that sand processing had not ceased, that “a number of unauthorised structures on the site … either need to be approved or removed”, that notices of intention to serve orders had been given to the park, in or about December 1988 and December 1994, and that Council had resolved on 7 May 1996 to serve notice requiring the caravan park to be upgraded in accordance with “the Caravan Park Regulations”.

154 The report then proceeded to deal with DA 109/97, but that section of the report is incomplete (see Exhibit V1, fol 66), and nothing in the report as presented in evidence deals further with DC 26/97 (or DA/BA 1128/97).

155 In DA 109, the applicant had asked Council to consider the proposed cottages on the basis of community title. The report notes Ms Gilling as both owner and applicant, and the area as 13.206 ha. The evidence includes the first page of an undated notice of Council’s refusal of DA 109/97 (Exhibit V1, fol 75), and the first page of an undated letter to Ms Gilling (Exhibit V1, fol 76), regarding the three “outstanding legal matters”, namely DAs 26, 109 and 1128, and advising her of the refusal of DA 109/97, by Council at its meeting on 9 December 1997.

156 At fol 58 of Exhibit V1, between documents dated 2000 and 1998, there is an undated and unstamped plan (“Plan 25”, described as “Plan showing existing and proposed sites at Hawkesbury Retreat – Paradise Point”), which shows all the caravan sites as located on the river’s edge, with none moved inland. There are 72 sites shown on this plan, including one each numbered “47” and “68”. The plan can be taken to predate the approval of DA 26/97 (c.f. the DC 26/97 plan stamped at fol 50 of Exhibit V1, which shows a very different configuration of only 50 sites).

157 The court is, therefore, not satisfied that Council’s consent to DA 26/97 approves the use of caravan park, or the establishment of site 68.

The 1998/1999 consent – item (v)

158 On a date which is illegible, Ms Gilling lodged a DA which was given the number “MA 319/98”, (in preference to a struck-out number “278/98” – see Exhibit V1, fol 84). The land was described as Lot 1 DP 862897 and the proposed development as “caravan sites” for the stated use “relocatable homes – short term”. There is an unstamped plan (at fol 85 in Exhibit V1) illustrating septic/sewerage arrangements – it shows 50 sites, with those numbered from “4” to about “24” set back from the river, but the plan, although barely legible, is clearly not the same as the 1997 stamped plan at fol 50.

159 Folio 86 of Exhibit V1 is page 1 of a SEE dated 8 September 1998 referring to “MA 278/98 – Proposed Nine (9) Caravan Sites” at “the existing caravan park” at No.78/Lot 1.

160 The proposed development was said to involve demolition of boat and machinery sheds and “delineation and installation of services for 9 short term caravan sites which may be used for relocatable homes”. At fol 87 (of Exhibit V1) is the cover page of a consultant’s report on “Sewage Treatment and Effluent Disposal” at Lot 1, dated “May 1998”.

161 The Council’s assessment report dated 24 November 1998 (of which only the first page is in evidence – Exhibit V1, fol 90) recommended approval on conditions, but at its meeting on 8 December 1998 (resolution at fol 89 of Exhibit V1) the Council refused the application on a number of grounds.

162 The court upheld a Class 1 appeal brought by Ms Gilling (Matter 10956 of 1998), and the order dated 22 April 1999 included the following (Exhibit V1, fol 88):

“ Development Application No. MA 319/98 for an additional nine (9) caravan sites at 78 Greens Road, Lower Portland be granted subject to the conditions annexed hereto and marked ‘A’ ”.

163 The applicant submitted (par 37) that a plan dated 31 August 1998 was incorporated in the court’s approval. While the plan to which the submission refers might be the plan at fol 85 of Exhibit V1, that plan is unstamped, and no plans or conditions are attached to the court’s order as presented in the evidence before me.

164 On its face the court’s consent clearly does not extend to approval of the caravan park as a whole, nor of site 68.

Events in 2000

165 On 29 February 2000, a Council officers’ report assessed an application by Ms Gilling in 1999 (on the Council’s property file, P717/440) for amendment of “Condition 1 of the approval to operate a caravan park to allow the installation of manufactured homes on flood liable land in certain conditions” (the first page of the report is among the evidence – Exhibit V1, fol 83).

166 In March 2000, both Council and the applicant (quaere Ms Gilling as owner and Mr Hooker as manager) were seeking legal advice regarding the requirements/obligations of each under Ordinance 71 (see Exhibit V1, fols 73 and 74).

167 On 26 March 2000, Council considered a report (the first two pages of which appear at fols 79-80 of Exhibit V1), concerning both DA 26/97 and MA 319/98, and following an inspection of the park by a senior Council officer and “detailed discussions” with the licence holder.

168 Mention is made of “consent orders” (sic) of this court, regarding DC 319/98, one condition of which provided:

“ 17. The approval to operate a caravan park and/or camping ground issued by Hawkesbury City Council on 15 October 1997 be updated to reflect the additional nine sites ”.

169 Council noted advice received that the LG Act approval should not be “updated” until the “nine sites have been physically constructed …”.

170 In respect of DC 26/97, there appeared to be some conflict with the conditions of the LG Act approval. The applicant had made a submission for an amendment to be made to the approval. There were apparently, at the time, current proceedings in this court regarding the issue.

171 On 11 April 2000, the Council resolved (Exhibit V1, fol 77) that:

“ 1. Council write to the operators of the Paradise Point Caravan Park informing them that the licence to operate the caravan park will be amended once the sites approved on Development Consent 319/98 have been constructed.

2. Condition 1 of the approval to operate a caravan park be amended as follows …”,
and went on to spell out how manufactured homes were to be installed on flood liable land.

The 2000 consent – item (vi)

172 On or about 18 April 2000, Ms Gilling lodged DA No. MA 619-00. Various parts of it can be located among the evidence, in Exhibit V3 and at folios 97-106 of Exhibit V1 – documents said to be taken from the Council DA file, including the first page of the DA, the first page of a SEE, and two plans, one of “existing” and one of “proposed”, both dated 15 March 2000, at fols 103-6. Ms Hewitt also annexed parts of the DA to her affidavit, namely four pages of the DA form, plus four pages of a SEE and the two plans, as parts of her annexure of the Class 1 application filed on Ms Gilling’s behalf in matter No.10588 of 2000.

173 The court notes that in the DA Ms Gilling was referred to as the applicant, “Gilling family estate” as the owner, and the relevant land as Lot 1. The “proposed development” boxes nominated “use of land/building” and “erection of a building”. The “description” was “caravan park”, and the “proposed use” was nominated as “caravan sites and storage sheds”.

174 The accompanying SEE (see four pages, fols 5006-5009, in Exhibit V3) spoke of the proposal as providing an additional 12 caravan sites, and two sheds, as shown on the “revised site plan dated 15 March ‘00”, to be achieved by (1) relocation of three of the nine sites approved in 319/98 to revised short term sites 61, 67 and 72, (2) approval of one additional short term caravan site on revised site 24, and (3) use of eleven new sites (1-11) for relocatable homes (p1 of SEE in Exhibit V3).

175 When the application had not been determined by 19 June 2000, Ms Gilling commenced a class 1 appeal against its deemed refusal, referring to the DA as having sought approval “to use the property as a Caravan Site and Storage Sheds” (matter 10588 of 2000 – a copy of the application is annexure ‘A’ to Ms Hewitt’s affidavit).

176 The first page of the Council officers’ report dated 29 August 2000 (Exhibit V1, fol 101) identified both the owner and the applicant as Clr Glenys Gilling. No “Applicants Rep” (sic) was nominated. The report noted that the application was recommended for approval on a “deferred commencement” basis. No resolution from that meeting is recorded in the evidence.

177 On 12 September 2000, Council wrote to Ms Gilling (Exhibit V1, fols 69-71 – in stated reference to DA 26/97, DA 109/97 and MA 319/98), to report on a structural engineer’s examination of all caravan sites on the park, and setting out works and removals required over a stated timetable (the list of tasks at fol 71 appears to be only the first page of the attached schedule of works and removals required).

178 On 11 October 2000, the class 1 proceedings were set down for hearing on 24-25 January 2001. (Hewitt par 6).

179 On 17 November 2000, Mr Hooker wrote to Council regarding correspondence with Council dating back to March 1999 on the subject of “effluent disposal” (Exhibit V1, fol 102). He referred to DA 278/98 as having been “approved by the court with Council consent”, and to Council’s consideration on 29 August 2000 of the possibility of a deferred commencement consent requiring a further expert effluent report (see [158]–[160] above – there is no specific evidence regarding DA 278/98, other than the note of its being in some way superseded by MA 319/98 – see [158]).

180 DA 619/00 was further considered by Council at its meeting on 12 December 2000. The first page of the relevant minute is in Exhibit V1, at fol 100, but the whole of it is Annexure ‘A’ to Mr Hall’s affidavit. The item is headed “78 Greens Road, Lower Portland – DA for Additional Caravan Sites and Storage Sheds”.

181 Council resolved that “the application for the twelve (12) additional sites and relocation of three (3) caravan sites and two (2) machinery sheds be approved, subject to” various conditions.

182 A hotly disputed question between the parties concerns identification of which of two versions of the Council’s Notice of Determination (Exhibit V1, fols 97 and 98) was actually sent by Council pursuant to the resolution to grant consent. However, both versions contain the same schedule of conditions, and the parties agree on what conditions were imposed. The court’s attention was drawn to several conditions during argument. Condition 10 dealt with the effluent issue and, during late December 2000 and early January 2001, there were successful negotiations between the parties regarding that condition. Condition 21 dealt with regulatory compliance, and Condition 22 with amendment of the LG Act approval. The class 1 proceedings were discontinued on or about 11 January 2001.

183 However, the key condition imposed was No.1, as follows (taken from Exhibit V3, but also at Annexure ‘A’ to Mr Hall’s affidavit, and ‘B’ to Ms Hewitt’s):

“ Advisory
1. The development being carried out in accordance with plan and associated documentation submitted with the development application M619/00 dated 19 April 2000” . (emphasis added).

184 On the question of incorporation of documents into the DC, condition 1 is crucial. Mr Eastman says (T35) that Exhibit V3 contains all the documents which comprise the consent, viz: the DA (4 pages), Council’s cashier record, sewerage schedules (2 @ 2 pages), shed specifications (2 @ 1 page), the notice of determination dated 22 December 2000 (4 pages), the SEE dated 18 April 2000 (4 pages), and a sewerage expert’s report dated 9 March 2000 (2 pages). The exhibit does not include the stamped plan, but Condition 1 clearly incorporates it. The applicant’s written submissions (par 52) suggest incorporation of the “existing” plan as well, but that is not tenable. Neither would Condition 1, properly construed, incorporate the DA itself. The key words in the condition are “plan” (note the singular), and “submitted with …”.

185 Incorporation of the DA really does not advance the applicant’s position, in the court’s view, as it would strain the construction principles to read into the “tick box” section dealing with “proposed development”, as recorded in [173], that a favourable decision by Council when dealing with new additional sites and sheds, would mean that it was endorsing the existing use being made of the whole 13ha of Lot 1. The Council’s records of its consideration of the DA do not support it, and the applicant did not object to Council placing before the court a copy of the actual class 1 application the applicant filed regarding the DA (see [175] above).

186 A copy of the stamped plan is included in the evidence (Exhibit V1, fol 99), and depicts among 72 sites a site 47 and a site 68. (The court is prepared to accept that the nomination on the plan of the relevant approval number as “MA 691/00” rather than “MA 619/00” is a clerical error). A comparison with the plan at fol 105, dated 15 March 2000, makes clear that the new site 68 is, indeed, the “old” site 47, as depicted on fol 105, but not the site 47 depicted on the 1993 plan at fol 40. The sewerage charts in

also indicate the renumbering of site 47 as site 68. As Tuor C observed (in par [30] of her judgment):

“ Two plans accompanied the application both dated 15 March 2000. The first plan is entitled the "Existing Plan" and shows the arrangement of allotments at the Retreat (existing plan). Site 68 is shown on this plan as Lot 47. The second plan is entitled the "Proposed Development" and annotated to show the proposed new and relocated sites (proposed development plan). The plan also renumbers the sites and shows the subject site as 68. A list of the existing and proposed sites with the amended numbers and the sewerage system also accompanied the application and included site 68”.

187 As already noted, no consent has been proven, prior to this time, to establish the site, and it is trite to observe that no development consent would be required for simple renumbering of sites.

188 I turn, therefore, to the dispute regarding which Notice of Determination evidences this consent.

189 Ms Hewitt deposes that when she was instructed to act for the Council in the class 1 “deemed refusal” proceedings, she was briefed with only the one dated 22 December 2000, which she received by facsimile from Mr Hall on 28 December 2000.

190 Mr Hall has been a town planning coordinator employed by Hawkesbury Council since April 2000. He deposed an explanation of the Council’s processes for implementation of its resolutions.

191 The letter prepared, and dated 20 December, was sent to him in duplicate for checking, signature and despatch, and he says that when he observed that it was not in accordance with the resolution, he made the necessary changes on the original, sent it back for retyping, and issued the corrected notification on 22 December. Mr Hall also deposed that when he signed the later version he also stamped the plans, and dated them 22^nd. However, he also testified that he cannot find on the Council file the original of the notification dated 20 December, and that that is consistent with his “practice of destroying the original when it required correction”.

192 Both versions are before the court in various forms. The version dated 20^th which Mr Hall annexed to his affidavit as ‘B’, being said to be a copy from Council’s file, is a copy without a letterhead, and, curiously, it bears his signature. He annexed also (as ‘C’) an unsigned and unheaded copy of the 22 December version. Ms Hewitt annexed only the later version which she says he sent her, and it is also unsigned and unheaded. Yet the copy included in Exhibit V3 is both signed and on Council letterhead. The first page of the Notice dated 22^nd which appears in Exhibit V1 (at fol 97) also bears Council’s letterhead, but the copy of the 20^th version (at fol 98) does not.

193 Both versions carry the following “Note 1”, drawing attention to the significance of the actual date of consent:

“ This consent operates from the consent date shown on the top of this notice and will lapse unless the development, is commenced, within five (5) years from the date endorsed on this consent”.

194 In the 20 December version the Council is said to consent to “a caravan park”, and in the 22 December version to consent to:

“(i) additional eleven (11) caravan sites;
(ii) relocation of 3 sites;
(iii) additional one (1) short term site;
(iv) two 2 colorbond sheds for storage.”

195 Biscoe J was prepared to accept that both notices may have been sent. His Honour said (at par [35]) that he was “favourably impressed by the director of the appellant [Hooker] … and, … conclude[d] that it was sent before the later 22 December 2000 notice”. Mr Hooker did not give evidence before me at all, and, Mr Wilson, for the Council, specifically asked me to draw a Jones v Dunkel inference, that his evidence would not have helped the applicant’s case.

196 However, before me, the applicant seemed to accept that it was the later version of the notice which was issued, and I am satisfied that the applicant is in possession of a notice or copy of a notice, on letterhead, dated 22 December 2000. If a definitive finding were required, I would find that the Notice of Determination was that dated 22^nd December.

197 In any event, Mr Eastman puts the applicant’s case on the basis that the court in these proceedings does not really need to make such a concluded finding on the question of which December version was the Notice of Determination, as he relied primarily on Condition 1, which appeared in identical terms in both versions.

198 The applicant says that the incorporated documents (stamped plan and/or SEE) show that all of Lot 1 is (to be) used as a caravan park, and that this submission is enhanced by reference in some of the conditions to matters impacting beyond the 11 added sites (e.g. the landscaping condition, No.9).

199 In his written submissions Mr Eastman says (at pars 51 and 52):

“It is clear that the plan specifically approved and refers to site 68 meaning that any additional reference to it in the development consent is not required. Equally, the Statement of Environmental Effects submitted with the development application seeks consent for 72 lots. 72 lots are marked on the 2000 plan, including site 68. 72 lots are therefore approved, including site 68.
As the condition 1 of the development consent incorporates the ‘plans and associated documents’, the correct approach to construing the development consent is:
a. To have regard to the plan, which refers to site 68;
b. To have regard to the Statement of Environmental Effects accompanying the development application refers [sic] to consent for 72 sites being sought; and
c. To have regard to the ‘existing plan’ which indicates that pre-existing site 47 was to become site 68.”

200 I do not accept these submissions. They are simply unsupported by the evidence. I agree with Council when it says that the 2000 consent approves only 11 additional sites, and sheds, and not use of Lot 1 as caravan park.

201 The sites nominated in the 2000 application and the consent to it do not include site 68, but site 68 is shown on the stamped plan (Exhibit V1, fol 99). Incorporation of the plan in the approval does not constitute approval of everything shown on the plan, except insofar as it depicts those elements for which approval was then sought and to which consideration was given by the Council as consent authority in reaching its decision (see Tuor C at [46]). Reference by Council to a plan does not constitute Council’s acceptance of the “lawfulness” of all it contains.

202 The court concludes that there is no 2000 consent to the use, nor to site 68, as required in the applicant’s prayer for relief.

The 2001 modification of the 1967 consent – item (ii)

203 The index to Exhibit V1 refers to a 1968 consent but, despite its numbering (“68A/10/68”), the relevant consent for “minimum 6 cottages” (as the index records, or for “minimum of six (6) holiday cabins” as the consent itself records – Exhibit V1, fol 93) was granted and notified in November/December 1967.

204 A modification application was made by Ms Gilling on or about 25 February 2001, but for some reason the index to Exhibit V1 refers to the relevant Council file as being created in 1998 (fols 91-96 of Exhibit V1 are said to be drawn from that file).

205 On its face (fol 96) the modification application applies (1) to only one specific caravan site (No.49), and (2) to land other than the subject land – namely Lot 1 DP 862891, rather than Lot 1 DP 862897. The reference in the DA to the 1967 consent is clear, if not detailed or specific, so the court assumes the DP number in the DA to be a clerical error. Other DP numbers do, however, appear on various plans or maps of the area (in both Exhibit C1 and Exhibit V1), but not the number “862891”, and this matter should have been properly addressed at the hearing (cf [186]).

206 The “details of modification sought” are given as:

“ siting of 3 cabins not constructed unknown. This application requests confirmation of suitable site for one cabin at ground level on caravan site No.49 ”.

207 The first page of the Council’s undated assessment report is included in Exhibit V1 (fol 92). It recorded Ms Gilling as applicant, and Hawkesbury Riverside Retreat Ltd as owner. It repeated the erroneous DP number, but noted the address as 78 Greens Road, Lower Portland. It referred to the subject matter of the modification application as “… to allow cabin at ground level on sites 48 and 49”. There is no evidence regarding the addition of site 48 to the application, or to the assessment process.

208 The report opined that “the actual siting of the 6 cabins [covered by the 1967 consent] is unclear” from the plan before Council at that time, but it noted that three had been constructed, and it assessed the modification application as seeking confirmation that cabins can be erected on sites 48 and 49 “as shown on plan marked A” (partly reproduced at fol 95).

209 The partial plan in evidence is quite legible – it is dated 15 March 2000, and numbered 8828/3. It is entitled “Plan showing existing and proposed sites at Hawkesbury Retreat – Paradise Point”, and it shows sites 23-43 as being somewhat inland of the river’s edge. There is no site 68 depicted on fol 95.

210 The evidence does not support the applicant’s submission that the question before the Council was approval of all 72 sites.

211 At the foot of the page of the assessment report is a heading “Reason for cabin site relocation”, but no more of the report is before the court.

212 By letter dated 31 May 2001 (Exhibit V1, fol 91), Council notified Ms Gilling that it had amended the “development notice” re 68A/10/68 by addition of three conditions, viz:

“1 . Site number 58, as shown on the plan marked A, may be used for the purpose of a cabin site.
2. Site number 48, as shown on the plan marked A, may be used for the purpose of a cabin site.
3. Site number 49, as shown on the plan marked A, may be used for the purpose of a cabin site”.

213 There is no evidence regarding the addition of site 58. It is barely visible on the copy in evidence of Plan ‘A’ (at fol 95 of Exhibit V1).

214 The whole of the plan (‘A’) partially reproduced in the evidence is clearly incorporated in the consent, but cannot be taken to have any effect on any park consent/approval beyond sites 48, 49 and 58.

(9) Summary

215 There are indications that a caravan park operation has been conducted on the subject land since about 1963, and it has received the benefit of many development consents since.

216 Those most relevant and relied upon by the applicant in this case do not give consent to the overall use of the land as a caravan park, even though some appear to have been granted on the assumption that a lawful caravan park was in existence at the time. The applicant has failed to discharge its onus of proving that lawfulness.

217 The November/December 1967 consent is the first among the evidence (despite reference to one in April 1967). It approved six cabin sites on the subject land.

218 The “deferred commencement” styled consent of March 1975 specifically approved no sites, and the possibly relevant and/or incorporated plans identified no particular sites by number. At that time Council was conscious of there being no relevant consent to the relevant use – see [121].

219 In early 1979 Council told the Bensley family the various approvals it had granted, and no approval for a caravan park was mentioned. There was no evidence presented to the court to verify the suggestion made in Council’s August 1980 correspondence that a caravan park had been approved in 1979.

220 Continuously since about 1983, the operation of the caravan park appears to have enjoyed the benefit of the appropriate licence or authority under the LG Act.

221 A sewerage system development approval in 1993 applied to 25 van sites out of 52 depicted on a plan, but did not approve any sites as such. In 1995 Council spoke of a licence for 46 sites on the land, but there is no evidence of such a development approval.

222 In 1997 Council granted a consent to move twenty-odd numbered sites away from the river’s edge. The incorporated/stamped plan depicted 50 sites, including one numbered “47”, but the consent did not grant development approval to them or it. Both before and after that consent (ie in 1995, and later in 1997) the Council refused consent to remove the park and redevelop it as a different type of facility.

223 In 1998 the Council refused nine additional sites, and in 1999 the court approved them. That approval did not extend to the whole park, nor apply to site “47/68”. In 2000 a consent allowed three of those nine to be moved, the use of another site to be changed, and eleven new sites to be added. Again, the application of that consent did not extend beyond the specified sites. Site “47/68” was not affected, and site renumbering was not part of the proposed development.

224 In 2001 Council granted a modification of the 1967 consent. Again, the approval was restrictively site-specific in character.

(10) Conclusion and Orders

225 Accordingly, the court cannot make the declaration sought, and the applicant’s class 4 application dated 20 June 2008 must be dismissed with costs.

226 The formal orders of the court are:

(i) The application is dismissed.
(ii) The applicant is to pay the Council’s costs on a party-party basis, as agreed or assessed, according to law.
(iii) All the exhibits are returned.