Najask Pty Ltd v Palerang Council [2009] NSWCA 39 (10 March 2009)

Last Updated: 11 March 2009

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Najask Pty Ltd v Palerang Council [2009] NSWCA 39


FILE NUMBER(S):
40233/08

HEARING DATE(S):
25 February 2009

JUDGMENT DATE:
10 March 2009

PARTIES:
Najask Pty Limited
Palerang Council

JUDGMENT OF:
Spigelman CJ Ipp JA Tobias JA

LOWER COURT JURISDICTION:
Land & Environment Court

LOWER COURT FILE NUMBER(S):
LEC 10362/07

LOWER COURT JUDICIAL OFFICER:
Lloyd J

LOWER COURT DATE OF DECISION:
6 May 2008

LOWER COURT MEDIUM NEUTRAL CITATION:
Najask Pty Limited v Palerang council [2008] NSWLEC 160

COUNSEL:
A: T Robertson SC / J Lazarus
R: J Robson SC / C Ireland

SOLICITORS:
A: Pikes Lawyers, Sydney
R: Minter Ellison Lawyers, Canberra

CATCHWORDS:
ENVIRONMENT AND PLANNING – environmental planning – planning schemes and instruments – local environmental plans – state environmental planning policies – whether a prohibition on development for the purpose of caravan parks in a local environmental plan was inconsistent with the state environmental planning policy – definition of “caravan park” – whether the terms “moveable dwelling” and “manufactured home” imported a degree of permanency of habitation or occupancy – whether the permissibility of development with consent of caravan parks for the purpose of “tourist facilities” allowed for the construction of manufactured homes for permanent or long-term residence

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Local Government Act 1993


CASES CITED:
Najask Pty Ltd v Palerang Council [2008] NSWLEC 160
Wygiren Pty Ltd v Kiama Municipal Council [2008] NSWLEC 56

TEXTS CITED:


DECISION:
(a) Grant leave to appeal on condition that the applicant file and serve its Notice of Appeal within 7 days of the date of these orders;
(b) Appeal dismissed;
(c) The applicant to pay the respondent’s costs of the Summons for leave to appeal and of the appeal.



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40233/08

SPIGELMAN CJ

IPP JA

TOBIAS JA

Tuesday 10 March 2009

NAJASK PTY LTD v PALERANG COUNCIL

Judgment

1 SPIGELMAN CJ: I agree with Tobias JA.

2 IPP JA: I agree with Tobias JA.

3 TOBIAS JA: The applicant is the owner of an existing caravan park known as “Capital Country Holiday Village” (the park). On 15 February 2005 it applied to further extend the park onto some adjoining land (the subject land) by the construction thereon of 159 “manufactured homes” intended for occupation on a permanent basis (the development). The respondent refused the application and the applicant’s appeal to a Commissioner of the Land and Environment Court was dismissed upon the ground that the development was prohibited.

4 The applicant appealed from the decision of the Commissioner to a judge of the Land and Environment Court (Lloyd J) pursuant to s 56A(1) of the Land and Environment Court Act 1979 (the Court Act). Such an appeal is confined to a question of law. One of the questions of law in respect of which the applicant sought the primary judge’s determination was whether the Commissioner had erred in finding that the development was prohibited. His Honour considered that it was prohibited, upheld the Commissioner’s decision and dismissed the appeal: Najask Pty Ltd v Palerang Council [2008] NSWLEC 160. The applicant now seeks this Court’s leave to appeal from that part of his Honour’s decision pursuant to s 57(4)(c) of the Court Act. The application for leave and the appeal have been heard concurrently.

The relevant planning regime

5 The subject land is within Zone No 1(d) (Rural Residential Zone) under the Yarrowlumla Local Environmental Plan 2002 (the LEP). Pursuant to cl 11(1)(c) of the LEP, development for the specified purpose of “caravan parks” is prohibited within that zone. On the other hand, pursuant to cl 11(1)(b) of the LEP, development for the specified purpose of “tourist facilities” is permissible within the zone with development consent.

6 The applicant’s case, rejected by the Commissioner and by the primary judge, was that the prohibition in the LEP of development of the subject land for the purpose of a caravan park was inconsistent with the provisions of State Environmental Planning Policy No. 21 (SEPP 21) so that, to the extent of that inconsistency, SEPP 21 was to prevail: see cl 5(1) of SEPP 21 and/or s 36(1)(a) of the Environmental Planning and Assessment Act 1979 (the Act).

7 The relevant provisions of SEPP 21 pertinent to the issue before the Court are as follows:

“3 Aims, objectives etc

(1) The aim of this Policy is to encourage:

(a) the orderly and economic use and development of land used or intended to be used as a caravan park catering exclusively or predominantly for short-term residents (such as tourists) or for long-term residents, or catering for both,

...

(2) The strategies by which that aim is to be achieved are:

(a) ...

(b) by requiring that development consent be obtained from the local Council for development for the purposes of caravan parks, and

(c) by providing that development consent may be granted that will authorise the use of sites for short-term stays (whether or not by tourists) or for long-term residential purposes, or for both, and

...

6. Definition

In this policy:

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

moveable dwelling has the same meaning as it has in the Local Government Act 1993.

7. Application of certain planning controls to places licensed for movable dwellings

In any environmental planning instrument (whether made before or after this Policy), references (however expressed) to caravan parks or to camping grounds, or to caravan parks and camping grounds, include references to caravan parks, within the meaning of this Policy.

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.

9 Subdivision of caravan parks for lease purposes

(1) Land may be subdivided for lease purposes under section 289K of the Local Government Act 1919, but only with the development consent of the Council.

(2) A Council must not grant such a development consent unless the Council is satisfied that each of the lots intended to be created for lease purposes by the proposed subdivision meets the requirements of the Local Government (Caravan Parks and Camping Grounds) Transitional Regulation 1993 for a site to be used for long-term residence.

(3) Any prohibition or restriction on the subdivision of land imposed by any other environmental planning instrument (whether made before or after this Policy) does not apply to a subdivision for lease purposes under section 289K of the Local Government Act 1919.

10 Matters to be considered by Councils

A Council may grant a development consent required by this Policy only after it has considered the following:

(a) whether, because of its location or character, the land concerned is particularly suitable for use as a caravan park for tourists or for long-term residence,

(b) whether there is adequate provision for tourist accommodation in the locality of that land, and whether existing or potential tourist accommodation will be displaced by the use of sites for long-term residence,

(c) whether there is adequate low-cost housing, or land available for low-cost housing, in that locality ...”

8 The expression “moveable dwelling”, which by cl 6 of SEPP 21 has the same meaning as it has in the Local Government Act 1993 (the LG Act), is defined in the Dictionary to that Act to relevantly mean,

“(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 ...”

9 The expression “manufactured home” is defined in the same Dictionary to mean

“a self-contained dwelling (that is, a dwelling that includes at least one kitchen, bathroom, bedroom and living area and that also includes toilet and laundry facilities), being a dwelling:

(a) that comprises one or more major sections, and

(b) that is not a registrable vehicle within the meaning of the Road Transport (Vehicle Registration) Act 1997,

and includes any associated structures that form part of the dwelling.”

10 The expression “associated structure” is also defined in the same Dictionary to relevantly mean:

“(a) a carport, garage, shed, pergola, veranda or other structure designed to enhance the amenity of a moveable dwelling and attached to or integrated with, or located on the same site as, the dwelling concerned ...”

11 The following expressions are defined in the Dictionary to the LEP as follows:

“caravan park means land (including a camping ground, but not a primitive camping ground) on which caravans or other moveable dwellings are located.

tourist facility means an establishment providing for holiday accommodation or recreation and may include a boatshed, boat handling facilities, camping ground, caravan park, holiday cabins, hotel, houseboat, marina, motel, playground, refreshment room, water sport facilities or a club used in conjunction with any tourist activities.”

The expression “moveable dwelling” in the definition of “caravan park” is not defined in the LEP’s Dictionary.

The decision of the primary judge

12 It was submitted to the primary judge that there was an inconsistency between the LEP and SEPP 21 constituted by the fact that, as a matter of construction, SEPP 21, in effect, empowered a council to grant development consent to development for the purpose of a caravan park in circumstances where, pursuant to cl 8(2) of SEPP 21, the council must determine the number of sites (if any) within the land subject to the application that it considers suitable for long-term residence and those that it considers suitable only for short-term residence.

13 As I understand the argument, it was also contended that the effect of the provisions of cl 7 of SEPP 21 was that the expression “caravan park” in the definition of “tourist facility” in the Dictionary to the LEP was to include “moveable dwellings” and, therefore, “manufactured homes” as defined in the LG Act which could therefore be used for long-term residence including permanent residence. Reliance was also placed upon the use in the expressions “moveable dwelling” and “manufactured home” in the LG Act of the words “dwelling” and “home” which imported, so it was submitted, a significant degree of permanency of habitation or occupancy.

14 At [9] of his judgment the primary judge said:

“Mr Robertson relies upon the importation of the definition of ‘caravan park’ into the definition of ‘tourist facility’’ in the LEP, together with the incorporation by reference of the definition of ‘moveable dwelling’ in the Local Government Act 1993. Mr Robertson then points to the critical words of ‘dwelling’ and ‘home’ in these definitions, which import a significant degree of permanency of habitation or occupancy. In support of this proposition reference was made to Burwood Municipal Council v Aboriginal Hostels Ltd (1979) 30 LGRA 150 at 153; North Sydney Municipal Council v Sydney Serviced Apartments Pty Ltd (1990) 21 NSWLR 532 at 538; Mackenzie v Warringah Council (2003) 124 LGERA 208, Peter Duffield and Associates Pty Ltd v Canada Bay City Council (2002) 124 LGERA 349; Foster v Sutherland Shire Council (2001) 115 LGERA 130; and by analogy to Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277 and KJD York Management Services Pty Ltd v City of Sydney Council (2006) 148 LGERA 117. I agree that the definition of ‘caravan park’, together with the incorporation by reference of the definition of ‘moveable dwelling’ in the Local Government Act 1993, imports a degree of permanency of habitation or occupancy, which is fully supported by the cited authorities.”

15 With respect, I do not agree that the definition of “moveable dwelling” in the LG Act, including the definition of “manufactured home”, imports a degree of permanency of habitation or occupancy. The authorities to which his Honour referred were all determined in quite a different context to the present case. It is true that in the cases referred to the courts held that the definition of “flat” in the phrase “residential flat building” and the use in that definition and in the definitions of “dwelling” and “dwelling house” of the word “domicile” carried with it a degree of permanency of habitation or occupancy.

16 However, I do not consider that in their context, the terms “moveable dwelling” or “manufactured home” necessarily import a degree of permanency of habitation or occupancy. On the contrary, the reference to “moveable” signifies lack of permanence. Further, the definition of “manufactured home” is phrased in terms of its physical characteristics and, apart from its ability to be used for human habitation, says nothing as to the duration of its use for that purpose. Furthermore, the reference in that definition to such a “home” comprising one or more major sections seems to relate more to its moveability than to its permanence as a fixture.

17 I have already referred to the applicant’s submission that the incorporation of “caravan park” (as expanded by the definition of that expression in cl 6 of SEPP 21) into the definition of “tourist facility” in the LEP had the effect of extending the permissible use to include manufactured homes (as defined) as places of habitual or permanent residence. The submission asserted a contradiction between the LEP’s restriction on the permissible use of a caravan park in the definition of a “tourist facility” to only tourist or holiday accommodation and the expansion of that use pursuant to cl 7 of SEPP 21 to include permanent residence in moveable dwellings – a contradiction said to be resolved by the inconsistency provisions to which I have referred (at [4] above) by treating that restriction as ineffective.

18 It was further submitted that cl 10(b) of SEPP 21 strongly suggested that the maker of that instrument intended any potential conflicts between tourist and residential uses to be resolved as a matter of merit rather than pre-emptively by the application of a zoning provision in a local environmental planning instrument. The applicant submitted that that provision was completely inconsistent with the proposition, endorsed by the Commissioner, that a tourist caravan park was permissible and that any residential use of it was not.

19 The primary judge dealt with the applicant’s submissions in the following terms:

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

20 After setting out further submissions of the applicant based on s 76A(1) of the Act, his Honour concluded in the following terms:

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

The submissions on the appeal

21 Before this Court the applicant essentially repeated the submissions which had been made to the primary judge albeit with some tweaking. Thus it was submitted that incorporation pursuant to cl 7 of SEPP 21 of the definitions of “caravan park”, “moveable dwelling” and, by extension, “manufactured home” into the definition of “tourist facility” in the LEP had the effect of permitting the use of land on which caravans and other moveable dwellings are installed for both short-term residential use as well as long-term residential use including permanent residential use. In particular it was submitted that the effect of cl 8(2) which required the Council to determine the suitability of sites for the purpose of short and long-term residences, was plainly inconsistent with a prohibition on using such sites within a caravan park for long-term residential accommodation.

22 When pressed, the applicant was forced to accept that, for there to be a relevant inconsistency between the LEP and SEPP 21, one had to construe the latter as permitting development for the purposes of a caravan park notwithstanding the prohibition of that form of development in the LEP. Particular reliance was placed by the applicant in support of that proposition upon the stated strategy of SEPP 21 that required development consent to be obtained from the local council for development for the purpose of a caravan park which could authorise the use of sites not only for short-term stays but also for long-term residential purposes.

23 The respondent submitted that it was not the purpose or effect of SEPP 21 to override any prohibition against development for the purpose of a caravan park in another environmental planning instrument but, rather, to require such development to be subject to a minimum requirement of a development consent, to introduce a uniform definition of “caravan park”, to require certain matters to be considered and to allow certain conditions to be imposed in the course of determining whether to grant any such consent. There was nothing, so it was submitted, in the aims, objectives or strategies set out in cl 3 of SEPP 21 that either expressly or inferentially contemplated that the purpose of SEPP 21 was to make permissible development for the purpose of a caravan park where it was otherwise prohibited under an applicable environmental planning instrument.

24 On the contrary, cl 8(1), as the primary judge held, was intended to require development consent to development for the purpose of a caravan park where otherwise such consent was not required by an environmental planning instrument. Furthermore, cl 8(2) proceeded upon the assumption that development consent was required for the purpose of a caravan park.

The applicant’s submission should be rejected

25 In my view the fact that SEPP 21 did not purport to override any prohibition in an environmental planning instrument of development for the purposes of a caravan park is illustrated by the fact that where any such override was proposed, SEPP 21 specifically so provided: see cl 9(3).

26 Apart from cl 8(1), the other subclauses of cl 8, as the respondent submits, provide for certain matters to be taken into account by a council before or at the time of granting development consent to the use of land for the purposes of a caravan park. To that extent it supplements the matters that a council is required to take into account under s 79C of the Act when determining a development application.

27 Clause 8(4) contains its own prohibition on allowing a person to occupy a site within a caravan park for a continuous period of more than three months without development consent. Clause 8(4A) is predicated upon development for the purposes of a caravan park being lawfully carried out: i.e. with development consent. In such circumstances a separate development consent for installation of a moveable dwelling is not required. None of these provisions purport to permit development for the purposes of a caravan park where this is otherwise prohibited by an environmental planning instrument.

28 The controlling provision of SEPP 21 is cl 8(1), the terms of which I repeat:

“Development for the purposes of a caravan park may be carried out only with the development consent of the council.” (emphasis added)

29 As the Chief Justice observed during argument, had the word “only” been omitted there may have been some force in the applicant’s submissions. But its inclusion is, in my opinion, antipathetic to those submissions. Its effect is to require development consent for the development where otherwise it is not required.

30 Clause 8(1) neither expressly nor impliedly provides that development for the purposes of a caravan park may be carried out with development consent notwithstanding that such development is prohibited by an environmental planning instrument. On the other hand, as the primary judge noted at [20] of his judgment, cl 8(1) would be inconsistent with a provision of an environmental planning instrument which provided that development for the purposes of a caravan park may be carried out without consent. The clause says nothing with respect to an environmental planning instrument which prohibits such development with or without consent.

31 What effect, then, does SEPP 21 have upon the fact that the definition of “tourist facilities” in the Dictionary to the LEP includes a “caravan park”? By force of cl 7 of SEPP 21, a caravan park which otherwise falls within the definition of “tourist facility” includes a “moveable dwelling” which, in turn, includes a “manufactured home” as defined in the Dictionary to the LG Act.

32 But it does not follow from the foregoing that a manufactured home, being part of a development for the purpose of a “tourist facility”, may be used as a permanent or long-term residence. Its use still takes its meaning, as the primary judge held (at [13]), from the opening words of the definition of “tourist facility”, namely, as “an establishment providing for holiday accommodation”. There can be no doubt that a manufactured home as defined may so provide just as holiday cabins, hotels and motels can provide for holiday accommodation.

33 The point is that development for the purpose of a tourist facility comprising manufactured homes (as defined) can only be used for that purpose and may thus only provide for holiday accommodation and not for permanent or long-term residence. Manufactured homes could only lawfully be used for the latter if development for the purpose of a caravan park was permissible under the LEP or by force of SEPP 21. But, as I have indicated, in my view SEPP 21 does not determine the permissibility of development for the purposes of a caravan park: it only provides that such development can only be carried out with development consent. That is the fallacy in the applicant’s argument.

34 The foregoing views are reinforced by some recent observations on the effect and operation of SEPP 21 by Jagot J in Wygiren Pty Ltd v Kiama Municipal Council [2008] NSWLEC 56. Although her Honour did not deal with the issue of whether SEPP 21 made permissible that which was prohibited by an LEP, the following remarks of her Honour are pertinent:

“32 ... SEPP 21 commenced on 24 April 1992 and has been amended since. It does not prohibit any development permitted under another instrument. The key provisions of SEPP 21 (cll 8 to 10) require development consent to be obtained for caravan parks, permit subdivision for lease purposes, and impose obligations on the consent authority to consider certain matters in determining whether to grant consent. Accordingly, and for example, the requirement for development consent in SEPP 21 would prevail over any instrument permitting such development without consent. Similarly, the capacity to subdivide caravan parks in cl 9 of SEPP 21 would prevail over any prohibition on such subdivision in another instrument. Clause 7 of SEPP 21 performs an important function in this context. It ensures that, whether or not other instruments define caravan park or camping ground and howsoever those terms may be defined, the provisions of SEPP 21 will operate. Accordingly, consent will be required for any such development. Any such land will be able to be subdivided for lease purposes. A consent authority will have to consider the matters nominated in SEPP 21 when deciding whether to grant consent.

33 The fact that cl 7 achieves this result by making the references in the other instrument include references to caravan parks within the meaning of SEPP 21 is consistent with the overall operation of the State policy. SEPP 21 assumes that other instruments will regulate caravan parks. It imposes an additional layer of regulation and provides greater flexibility in terms of title arrangements for caravan parks. ...” (emphasis added)

35 Not only, as her Honour observes, does SEPP 21 not prohibit any development permitted under another instrument, but also the reverse is true: it does not permit any development that is prohibited by another instrument. SEPP 21 assumes that such other instruments will regulate development for the purpose of a caravan park but imposes an additional layer of regulation where development for that purpose is permitted with consent or is permissible without consent. But that is as far as it goes.

Conclusion

36 It follows in my opinion that the primary judge was correct in upholding the decision of the Commissioner to the effect that the development proposed by the applicant was prohibited. I would therefore propose the following orders:

(a) Grant leave to appeal on condition that the applicant file and serve its Notice of Appeal within 7 days of the date of these orders;

(b) Appeal dismissed;

(c) The applicant to pay the respondent’s costs of the Summons for leave to appeal and of the appeal.

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LAST UPDATED:
10 March 2009