Vis Visitor Investments Services Pty Ltd v Hawkesbury City Council
[2007] NSWLEC 112
•7 March 2007
Land and Environment Court
of New South Wales
CITATION: Vis Visitor Investments Services Pty Ltd v Hawkesbury City Council [2007] NSWLEC 112 PARTIES: APPLICANT
Vis Visitor Investments Services Pty LtdRESPONDENT
Hawkesbury City CouncilFILE NUMBER(S): 20642 of 2006 CORAM: Tuor C KEY ISSUES: Building Application :- instillation of a movable dwelling, annex and associated structure
whether development consent requiredLEGISLATION CITED: Environmental Planning and Assessment Act 1979
Local Government Act 1993
Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005
State Environmental Planning Policy No 21 – Caravan Parks
Hawkesbury Local Environmental Plan 1989CASES CITED: Auburn Municipal Council v Szabo (1971) 67 LGRA 427 DATES OF HEARING: 20, 21 and 24 November 2006
DATE OF JUDGMENT:
7 March 2007LEGAL REPRESENTATIVES: APPLICANT
Mr J Azzi, barrister
Solicitor
Herbert WellerRESPONDENT
Mr D Wilson, barrister
Solicitors
A R Walmsley & Co
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESTuor C
7 March 2007
20642 of 2006 Vis Visitor Investment Services Pty Ltd v Hawkesbury City Council
JUDGMENT
1 COMMISSIONER: This is an appeal under s176 of the Local Government Act 1993 (LG Act) against the refusal by Hawkesbury City Council (the council) of an application under s68 of the LG Act for the instillation of a movable dwelling, annex and associated structure at site 68, Hawkesbury Riverside Retreat (the Retreat), 78 Greens Road, Lower Portland (the site).
2 For the reasons set out in this judgment I have concluded that the appeal should be dismissed and consent refused.
The site
3 The Retreat is located on the banks of the Hawkesbury River and has operated as caravan park for a number of years. There are currently 64 short term sites, 6 holiday cabin sites and one manager’s residence within the Retreat, a number of which are flood liable. The parties disputed whether all the existing sites were approved and the caravan park operated lawfully.
4 Some sites, including site 68, are presently vacant, with the rest occupied by a range of movable dwellings. The applicant, Mr D Hooker, Director Vis Visitor Investment Services Pty Ltd, is undertaking a programme of replacing exiting dwelling which he describes as an upgrade from ramshackle caravan and annexure instillations to attractive timber clad cabins in landscaped settings.
5 The Retreat has been converted to company title and is owned by, Hawkesbury Riverside Retreat Ltd. The applicant has been the on site manager since 1992. The sites are allocated to individual shareholders who own the moveable dwelling or structure on the site that is used, as the applicant states, as a sort of holiday house. The operational approach is not to attract tourists or the travelling public.
The proposal
6 The proposal is described in the council officer’s report as the instillation of:
· a movable dwelling being in two (2) major sections comprising in one section a kitchen, shower, wc, laundry and in another section two bedrooms. Both of the sections are 3.1 metres wide and 8 metres long.
· A rigid annex being a living room measuring 12 metres by four metres.
· Associated structures being a balcony (verandah type structure) at the riverside of the instillations.
· A carport
· There is also a 1000 litre water tank.
Issues
7 The Statement of Issues before the Court contained 14 issues. The parties agreed that the threshold issue is whether development consent under the Environmental Planning and Assessment Act (EPA Act) is required.
8 The other key issues relate to flooding and visual impact. In response to the joint report of the flooding experts the applicant sought leave to provide further evidence on this issue and the Plan of Management. The parties agreed that the development consent issue should be determined prior to the merits issues. If the Appeal fails on this basis further evidence on the merit issues would be unnecessary.
Statutory Framework
9 State Environmental Planning Policy No 21 – Caravan Parks (SEPP 21) includes the following definitions:
- caravan park means land (including a camping ground) on which caravans (or caravans and other movable dwellings) are, or are to be, installed or placed.
- moveable dwelling has the same meaning as it has in the Local Government Act 1993
10 The LG Act definition is:
"moveable dwelling" means:
(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.
11 Cl 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) ……
12 The key difference between the parties was whether development for the purposes of a caravan park is being lawfully carried out on the site. The parties agreed that lawfully carried out should be interpreted as meaning operating in accordance with a consent, if, at the time of commencement of the use, a consent was required.
13 If development on the site for the purposes of a caravan park is being lawfully carried out, the instillation of a movable dwelling on the site is controlled by the provisions of s 68 of the LG Act and the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005 (the Regulations).
14 The regulations provide:
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.
15 If development on the site for the purposes of a caravan park is not being lawfully carried out, development consent would be required under SEPP 21.
16 The site is zoned Environment Protection Mixed Agriculture (Scenic) Zone under Hawkesbury Local Environmental Plan 1989 (LEP 1989). Caravan parks are not separately listed in the land use table or defined in LEP 1989, as such they are prohibited within the zone. Tourist facilities are permissible within the zone and are defined as:
- tourist facilities means a building or place that is used to provide refreshment accommodation, recreation or amusement facilities for the travelling or holidaying public.
17 The parties held different opinions as to whether the proposal would satisfy this definition. As there is no development application before me this is not a matter which I am required to adjudicate.
18 Mr Azzi submitted that the development fell within the definition of rural tourist facility which is permissible in the zone and is defined under LEP 1989 as:
- rural tourist facility means 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.
19 Sydney Regional Environmental Plan No 20 – Hawkesbury – Nepean River (REP 20) also requires development consent for a caravan park.
The evidence
20 The Court visited the site and heard evidence from the following experts:
21 For the Council
· Mr G Falson, planner
· Mr A Bewsher, flood plain development consultant
22 For the applicant
· Mr L Aday, planner
· Mr S Wyllie, drainage engineer
23 Dr R Lamb also provided a Statement of Evidence for the applicant on the visual impact of the proposal but was not required to give evidence.
Whether development consent is required.
24 The applicant’s position is that a valid development consent exists being the consent for development application M610/00 granted by the council on 22 December 2000 (the 2000 Consent). In addition the applicant relies on the Approval to Operate a Caravan Park under the LG Act issued by the council on 29 June 2005 (the 2005 Approval).
25 The council’s position is that the 2000 Consent does not specifically approve site 68. Further there is no development approval for the Retreat to be used as a caravan park other than individual approvals for specific sites and uses dating back to 1967 when nine caravan sites were initially approved. Further, the 2005 Approval is an approval under the LG Act and does not obviate the need to obtain development consent under the EPA Act.
26 The difference in opinion between the parties centred upon what was approved under the 2000 Consent. To understand this difference, it is necessary to describe the details of the 2000 Consent.
27 The development application was lodged on 18 April 2000. Under the heading proposed development the boxes use of land/building and erection of a building are ticked. Description is caravan park and proposed use is caravan sites & storage shed.
28 In the Statement of Environmental Effects (SEE) which accompanied the development application, the proposal is described as follows:
- To provide an additional Twelve (12) caravan sites and Two (2) Storage sheds to the existing caravan park located at 78 Greens Road, Lower Portland being Lot 1 of DP 862897 as shown on revised site plan dated 15 March 2000 attached.
29 Existing approvals and development is described in the SEE as being:
58 Caravan sites approved - operative
1 Stone cottage approved for refreshment room
1 Managers Residence and Shop
4 Storage sheds approved – one constructed
6 boatsheds demolition approved
2 large machinery sheds demolition approved
30 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.
31 The report to council on 29 August 2000 (the report) describes the proposed development as:
i. Additional eleven (11) caravan sites which will be used for relocatable homes
ii. Relocation of three (3) of the nine (9) sites approved in M319/98.
iii. additional one (1) short-term site
iv. 2 colorbond sheds 12m x 7.2m for the storage of various equipment.
The proposed additional eleven (11) sites will be located adjacent to the existing access driveway and Greens Road.
The three (3) relocated and one (1) additional caravan site are located adjacent to existing sites that front the Hawkesbury River.
The proposed sheds are located adjacent to sites 29 to 31.
Plan attached at appendix “A” shows the relocation of the proposed sitesThe additional and relocated sites are to be connected to the existing effluent system on the site
32 The plan referred to in the report shows existing sites and is annotated to show the new and relocated sites.
33 The report describes the Retreat as being:
used as a caravan park since 1967. The existing development on the site includes:
· 55 caravan sites approved - operative
· 3 holiday cottages
· a heritage listed stone cottage with approval to be used as a refreshment room
· 1 storage shed
· 6 boatsheds
· large machinery sheds
34 At the time the development application was lodged and determined the site was zoned Environment Protection Scenic 7 (d) under LEP 1989. Tourist facilities are permitted within this zone. The definition of tourist facilities being the same as the current definition. The report states that The current and proposed development is defined as a tourist facility under HLEP 1989.
35 Council approved the application subject to conditions on 12 December 2000. The Notice of Determination dated 22 December 2000 approves:
i. Additional eleven (11) caravan sites;
ii. Relocation of three (3) sites;
iii. additional one (1) short-term site;
iv. two 2 colorbond sheds for storage.
36 The approval is subject to conditions which relevantly include:
Advisory
21 Any manufactured/relocatable homes installed on the site are to be constructed, installed and maintained in accordance with the Local Government (Caravan Parks, Camping Grounds and Movable Dwellings) Regulation 1995.1. The development being carried out in accordance with plan and associated documentation submitted with the development application M619/00 dated 19 April 2000.
37 A stamped plan accompanies the application entitled “Proposed Development” (stamped plan). This plan is the same as the proposed development plan which accompanied the application but does not include the annotations to show the proposal, including the location of the 12 additional allotments or the relocation of the three existing allotments. The stamp on the stamped plan has the words:
Hawkesbury City Council
Development Consent
Approval No: MA691/00
Approval Date: 22/12/00
Officer: signed
38 The key difference between the parties was whether the stamped plan approved site 68.
39 Mr Falson initially considered that a valid approval existed for the Retreat but changed his opinion after an examination of the consents. He stated that the 2000 Consent was for specific sites which were indicated on the plan which formed part of the application and the report to council. Condition 1 referred to these plans and documentation and the consent needed to be read in its entirety. The stamped plan could not be relied upon to indicate approval of everything on the plan but only those items for which approval was specifically sought and referred to in the consent. Mr Falson agreed that it would be better if the stamped plan were annotated but that the absence did not grant defacto approval to the application.
40 Mr Aday held the contrary view that the stamped plan showed site 68 and formed part of the approval. He stated that if Council had wanted to exclude this site, the plan would be annotated. He referred to the SEE and the council report which clearly stated that the Retreat was approved as a caravan park and that the number of sites shown on the existing plan, including site 68 formed part of the approval. Consequently, in approving the stamped plan council was regularising the use of the land.
Findings
41 Clause 8(4A) of SEPP 21 does not require a 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.
42 The applicant relies upon the 2000 Consent and the 2005 Approval as the basis that development for the purpose of a caravan park is being lawfully carried out on site 68. Based on this evidence I do not accept that a valid development consent exists for site 68.
43 Mr Wilson submission, for the council, referred to Auburn Municipal Council v Szabo (1971) 67 LGRA 427 where the Court of Appeal considered that a development approval can be read subject to the details of the development application if those details are incorporated expressly or by implication.
44 In the circumstances of this particular case, the approval includes the written consent, including the conditions. Condition 1 requires “the development being carried out in accordance with plan and associated documentation submitted with the development application M619/00 dated 19 April 2000”.
45 The then applicant applied for specific sites which were shown on the proposed development plan which accompanied the application, this did not include site 68. The written consent refers to a limited number of sites which do not refer to site 68 or any other site and can only be understood by reference to the plans or the written documentation which accompanied the application.
46 The stamped plan is not referred to in the consent but I accept forms part of it. Site 68 is shown on the stamped plan. However, I do not accept that this either expressly or by implication would approve site 68 and everything else shown on the plan. The stamped plan cannot be read in isolation but as part of the approval as a whole. I do not accept that the stamped plan can approve matters for which no approval has been sought or no impact assessment undertaken. The stamped plan is limited by the other components of the consent and it cannot “regularise” a use if no approval has previously been granted.
47 I accept that the SEE and the council report give a clear indication that the Retreat is approved for use as a caravan park and that the sites shown on the existing plan have been previously approved. However, no evidence of these previous approvals or that the sites existed prior to approval being required was placed before me. Mr Azzi, for the Applicant was given the opportunity during the hearing to further examine the consents in Council’s bundle (Exhibit 9) to provide a specific development consent for site 68 or a development consent for the Retreat, however, he maintained his position that he relied only on the 2000 Consent and 2005 Approval.
48 The 2005 Approval is an approval under the LG Act to operate a caravan park. This clearly includes site 68. However, I accept Mr Wilson submission that this does not obviate the need for a valid development consent. I do not accept Mr Azzi’s submission that Council would only have granted the 2005 Approval if there was a valid development consent. While this would be expected, there is no evidence before me to support this submission.
49 Mr Azzi referred to the Court’s power to regularise the use or to estoppel. As stated by Mr Wilson, these are not matters within my jurisdiction.
50 I therefore accept Mr Wilson’s submission that approval of the application under s68 of the LG Act for the instillation of a movable dwelling, annex and associated structure at site 68 cannot be granted as, from the evidence before me, development consent for site 68 has not been granted and the development for the purpose of a caravan park is not being lawfully carried out. On this basis the application must fail.
51 In relation to the merits of the s68 application, the evidence of the flood experts was that the site is a high hazard due to flood water depths alone and that if a “dwelling” on site 68 is to have its floor level below the 100 year flood level, it must be relocated to higher ground before the flood.
52 Any further application would need to demonstrate that a moveable dwelling was designed so it could be relocated to higher ground and should be accompanied by a management plan that shows the feasibility of moving the proposed dwelling and other existing dwellings to higher ground in a flood situation, taking into account that owner of the dwellings may not be present and the removal is reliant on the resources of management.
Orders
53 For the above reasons the Orders of the Court are:
1. The appeal is dismissed.
2. The application under s68 of the Local Government Act 1993 for the instillation of a movable dwelling, annex and associated structure at site 68, Hawkesbury Riverside Retreat, 78 Greens Road, Lower Portland is refused.
3. The exhibits, except exhibit 8, may be returned.
__________________
Annelise Tuor
Commissioner of the Court
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