Coastplan Consulting v Central Coast Council [2018] NSWLEC 47 | Case summary

Scope of the relevant inquiry

Council submits, having regard to the definition of "existing use" in the EP&A Act, that the key date for the identification of the lawful purpose which is said to constitute an existing use right is that immediately before the environmental planning instrument which prohibited the use came into force.
In the present case, according to Council, the date for the identification and characterisation of the lawful use is therefore 5 May 1983. Anything which occurred after this date could not alter the characterisation of the existing use on the site.
Coastplan accepts that the use is to be characterised at the time it became a prohibited use, and submits that the definition of "caravan park" inserted into the IDO in 2000 therefore has no application (but notes that it encompasses permanent occupation even if it were relevant).
Coastplan submits, however, that the limitation of the consent for short-term use in the 1980 consent arose only by way of condition (aa) which required compliance with the Council's Code. Coastplan submits that this condition was ambulatory, such that compliance with the Code was required, but that the terms of compliance would change if the Code were modified.
Further, Coastplan submits that the grants of development consent to a use described as a "caravan park" in 1980, 1983, 1987, and in 2006 to use the whole site for long-term caravan parks gave rise to a presumption of continuance and lawfulness. To this end, Coastplan cited the comments of Davies AJA, with whom Mason P and Handley JA agreed, in Armstrong at [48]-[49]: [48] In my opinion, the facts raise a presumption of continuance and lawfulness. The use of the premises was the subject of a consent granted on 13 October 1953. In December 1985, on the coming into operation of the Ashfield LEP, the use of the premises met both the description "residential buildings" in that consent and the description "residential flat building" which appears to have been the use underlying the grant of the consent. The evidence does not suggest to me, nor did it suggest to the trial judge, that there was any such significant change of use during the period 1953 to 1985 that the 1953 approval was abandoned or, indeed, that the description "residential buildings" became inappropriate. As I have said, had the Council considered the use of the premises to be illegal, it had adequate means to prevent that illegal use. [49] The respondents had the overall onus of proof. However, the facts of the case raised a presumption of continuance. This is not a presumption of law but rather an inference of fact to be derived from the course and nature of events. There is often a pattern in the affairs of people. In the use of buildings, that pattern tends to be relatively stable.
In particular, Coastplan submits that an inference can be drawn from the 2006 consent that Council regarded the existing use to be a broad right to use the site as a "caravan park" and not a right limited to short-term caravan sites.
Further, Coastplan submits that the grant of approvals for long-term and short-term sites under the LG Act gives rise to a clear inference that the Council Code with respect to caravan parks had changed at some time before 1989.
Council responds that the applicant misapplies Armstrong. In Council's submission, the passage of Davies AJA's judgment extracted above should be properly read as part of his Honour's characterisation of the existing use in 1985 (the date at which residential flat buildings were first prohibited in the relevant zone) in circumstances where development consent was granted for "flatettes" in 1953. Council submits that the presumption of lawfulness is therefore limited to the period between 1953 and 1985 and that Armstrong is not an authority which would make the 1987 consent or 2006 consent relevant, but rather an authority which reinforces the proposition that the relevant date is that immediately prior to the use becoming prohibited.
Council further submits that the licences granted under the LG Act do not establish that consent was granted after 1983 for long-term accommodation on the site. Council submits that the LG Act approvals are subject on their face to a condition subsequent that such a development consent be granted, allowing an inference to be drawn that no development consent existed at the time the LG Act approvals were granted.
Further, Council submits that the presumption of regularity can only have application where the ultimate exercise of statutory power is legally available: Darley Australia Pty Ltd v Walfertan Processors Pty Ltd [2012] NSWCA 48; (2012) 188 LGERA 26 ('Walfertan') at [115]. In Council's submission, as caravan parks were prohibited in the zone and the existing use rights did not extend to long-term caravan sites, the presumption of regularity has no application in the present case.
I accept, as agreed between the parties, that the relevant date for the identification and characterisation of the use said to comprise the existing use right is that immediately before it was prohibited. In this case, that is the use as at 5 May 1983.
Coastplan's submission that condition (aa) of the 1980 consent was ambulatory is one of some nicety. Clearly if it were the case that compliance with the condition changed as the Council's Code was modified, that would be a relevant consideration for the characterisation of the existing use.
In Sutherland Shire Council v Benedict Industries Pty Ltd (No 8) [2017] NSWLEC 4 ('Benedict Industries'), a case to which I was referred by Council, Pepper J considered an argument that a condition of consent which required "compliance with any requirements of the Shire Engineer and the Department of Lands" should be given an ambulatory operation. After discussing the principles relevant to interpreting development consents, her Honour held at [359]: Applying these principles to condition 1 of the 1967 consent there is no warrant whatsoever for the construction of condition 1 posited by Benedict. This is because, first, to do so would result in a lack of clarity or certainty in the condition, as its content changed over time depending on the particular licence applying to the land. Far from achieving a practical result, impractical ambiguity would ensue. And second, the construction is premised on, by necessary implication, the incorporation into the 1967 consent of extrinsic material (permissive occupancy 76/31 and subsequent licences) which were not in existence before the 1967 consent was granted.
The wording of the condition considered by Pepper J in Benedict Industries is clearly not identical to the relevant condition in this case. However, the comments of her Honour are apposite to the present case. Further, I am influenced by the fact that condition (aa) required not only compliance with the Council Code but that it specifically identified a prohibition on long-term caravan sites as part of the Code with which compliance was required. In those circumstances, I find that condition (aa) did not have ambulatory effect.
With respect to the presumption of regularity, I accept Council's submission that Armstrong is not authority for the proposition that approvals made after the existing use was prohibited give rise to a presumption of regularity. Nor is the effect of that decision that approvals made after the prohibition of the existing use are relevant to the characterisation process. At [48], Davies AJA held that the evidence did not suggest there had been any "significant change of use during the period 1953 to 1985" (emphasis added). Council was correct to submit that Armstrong lends further weight to the view that the correct time to characterise the use is when it was prohibited; that is, 5 May 1983.
Whilst Coastplan conceded in oral argument that the conduct said to give rise to a presumption of regularity in Armstrong took place prior to the prohibition of the existing use, it submitted that the conduct in Walfertan was not so limited.
In Walfertan, McColl JA, with whom Macfarlan and Whealy JJA agreed, stated at [115]: The presumption of regularity has also been described as one which "arises from the ordinary course of business", being "a rule of very general application, that where an act is done which can be done legally only after the performance of some prior act, proof of the later carries with it a presumption of the due performance of the prior act": McLean Bros & Rigg Ltd v Grice [1906] HCA 1; (1906) 4 CLR 835 (at 850) per Griffith CJ (Barton and O'Connor JJ agreeing), citing Knox County v Ninth National Bank 147 US 91 (1893)…
In other words, it is to be assumed that the necessary precondition for the exercise of power has been performed. As McColl JA noted at [114], it has been referred to both as a "rebuttable presumption of law" and "a presumption of fact, associated with a reasonable inference based on what ordinarily happens in the ordinary course of human affairs".
In the application of the principle to the matter then before the Court, her Honour said at [120]: This was, in my view, an appropriate case for application of the presumption of regularity. It should not be assumed that Scone Shire Council and its officers so neglected their duties as to have granted four development consents and apparently given building approval for the construction of the tannery building without there having been development consent for the operation of the tannery itself: Brickworks Ltd v Warringah Corporation (at 577). The fact that one officer of the Council referred to the tannery as an "existing use" reflects the lack of a formal record and/or an inability to locate one - precisely the circumstance application of the presumption is intended to cure. That reference did not however, in my view, rebut the presumption that the Council as a whole would only have granted subsequent development consents and apparently approved the construction of the tannery building if original approval for the tannery's operations had been given.
As Council correctly submits, the presumption of regularity only has application insofar as the power to make the decision to which it applies was lawfully available. Tellingly, McColl JA in the above passage refers to the "lack of a formal record and/or an inability to locate one" as the circumstance which the presumption is intended to cure. That is not the circumstance of this case. The 2006 consent and the licences issued under the LG Act are incapable of retrospectively affecting the characterisation process which, as I have said, is to be undertaken as at 5 May 1983. Therefore, to the extent that the presumption of regularity applies to the 2006 consent, it will be rebutted by a finding that the existing use properly characterised did not permit long-term or permanent caravan sites. As Council correctly submitted, licences issued under the LG Act are subject to development consent being granted for the use.
I note that Coastplan submits that an alternative source of power available to Council was that the 2006 consent constituted an intensification of an existing use rather than a change of use. That submission depends on the correct characterisation of the existing use in the first instance, which I proceed to consider below.

Characterisation

Coastplan contends that the consents granted in 1980, 1983 and 1987 were not expressed to be for the purposes of "short-term caravan sites", but rather "caravan parks" simpliciter. Caravan parks were not defined in the IDO at the time the consents were granted, and Coastplan therefore contends that it should be given a broad meaning that encompasses all caravan uses.
Coastplan submits that the fact that the conditions contained limitations on the length of stay is not a relevant consideration when characterising the proposed use having regard to the accepted principles involving existing use rights. Rather, it says that condition (aa) of the 1980 consent and condition (i) of the 1983 consent did not have the effect of changing the characterisation of the use from "caravan park" to "caravan park for short term accommodation". In its submission, the conditions merely governed the manner of the use.
Further, Coastplan says that the 2006 consent had the effect of removing those conditions, a course of action which was available to Council because in doing so it did not change the characterisation of the use.
Council submits that the present case is one of the first kind in the dichotomy referred to by Leeming JA in Jojeni at [71]: The preferable way of analysing the ultimate question as to the nature of the existing use rights is that it does not turn on the ordinary construction of the terms of a development consent. This is not a case like Parangool or MM & SW Enterprises where the development consent prescriptively identifies the permitted use. It is instead a case like Ashfield Municipal Council v Armstrong or Woollahra Municipal Council v Banool Developments Pty Ltd where the lawful use is not derived from any consent or approval. The principles articulated by Kitto J in Shire of Perth v O'Keefe apply (emphasis added).
Consequently, Council submits that the relevant use is to be identified having regard to the constraints within the 1980 consent and the 1983 consent in conjunction with the genus test. Council submits that the result of applying this test is that the use is properly characterised as use of the land as a caravan park without long-term occupancy or permanent accommodation.
Council submits that Nelda Bay Pty Ltd v Sutherland Shire Council [2015] NSWLEC 95 ('Nelda Bay') is authority for the approach that where the existing use is referable to a development consent, as in the present case, characterisation requires a reading of the consent as a whole, including the conditions (at [53]), which is not to be done with too great a level of particularity (at [60]). Council submits that drawing a distinction between long-term stays and permanent accommodation on one hand and short-term stays on the other is not looking at the matter with too great a level of particularity.
To this end, Council refers the Court to Najask Pty Ltd v Palerang Council [2008] NSWLEC 160 ('Najask No 1') and Najask Pty Ltd v Palerang Council [2009] NSWCA 39; (2009) 165 LGERA 171 ('Najask No 2'). Najask No 1 concerned an application to expand an existing caravan park. At [40]-[43], Lloyd J held that the consent to use the site as a caravan park did not encompass use of the sites as permanent caravan sites, and that consequently there were no existing use rights for permanent caravan accommodation. In Najask No 2, the Court of Appeal at [36] dismissed an appeal against Lloyd J's decision.
Council relies upon this decision for the proposition that use as a caravan park containing only short-term stays is a materially different use to use of a caravan park which includes permanent or long-term stays. Coastplan says that the decision was particular to the planning instrument under consideration in that case under which use as a caravan park was a permissible use only as a species of "tourist facilities".
In Jojeni, Leeming JA referred to two cases of the type which Council contends the present case falls within: Botany Bay City Council v Parangool Pty Ltd [2009] NSWLEC 198 ('Parangool') and MM & SW Enterprises Pty Ltd v Strathfield Council [2010] NSWLEC 8; (2010) 172 LGERA 125 ('MM & SW Enterprises').
Parangool concerned existing use rights where the existing use was described by the consent as "use of existing warehouse building for the warehousing/storage and distribution of alcoholic goods." It was contended that under the liberal reading of existing use rights, this allowed use of the site as a warehouse generally. At [14], Lloyd J rejected this submission, holding that the use protected by s 106 of the EP&A Act was the use guaranteed by the terms of the development consent.
In MM & SW Enterprises, the development consent which gave rise to existing use rights described the approved use as being for "commercial offices". It was contended by the applicant that this extended to use of the premises as a brothel. Having regard to the conditions of consent at [92]-[94], Pepper J held that the consent did not extend to use of the premises as a brothel (at [94]).
Coastplan seeks to distinguish Parangool and MM & SW Enterprises from the present case. It says that neither stand for the proposition that one must look to the conditions of consent to characterise the use. Rather, Coastplan submits that the correct view is that the existing use rights are confined by the terms of the consent itself "on its face" (an expression employed by Sheahan J in Sevenex Pty Ltd v Blue Mountains City Council (No 2) [2010] NSWLEC 101 at [36] and by Pain J in Nelda Bay at [48]). Coastplan says that to the extent that the consent on its face limits what would otherwise be a broad use under the genus test in O'Keefe, the existing use right is the right so limited.
The difficulty with that submission is that it is unclear precisely what "on its face" means with respect to the conditions of consent. Mr Pickles, senior counsel for Coastplan, conceded during oral argument that it is probably not a term of art. I do not understand Sheahan J or Pain J to be using the term to advocate an approach which does not involve reading the consent carefully as a whole.
Rather, I understand the term "on its face" to mean the operation of the consent as a whole, read carefully but without the meticulous examination of the activities involved in the use as warned against by the authorities on existing use rights (O'Keefe at 534-5; Jojeni at [75]).
Whether examination of a particular condition constitutes meticulous examination of the kind warned against by the authorities is a matter of fact and degree. The relevance of Najask No 1 and Najask No 2 to the present proceedings goes to that question.
It is not necessary in the present case to form a view as to whether in the present circumstance the genus test is applicable. In Jojeni at [72], Leeming JA said: Further, if I were wrong about that, such that it is correct for the purposes of s 106 to rely on the second limb of the definition of "existing use" by reason of the fact that the 1933 approval impliedly authorises the use of the building for the purpose of flats, even so I would not consider what was said in Botany Bay City Council v Workmate Abrasives Pty Ltd (2004) 138 LGERA 120 to extend to the present case. The proposition in Workmate Abrasives at [14] that the reasoning in Shire of Perth v O'Keefe is "irrelevant" where an existing use is claimed to flow from an existing development consent is, in my opinion, too broad, if it is said to apply to a case where a development consent is silent as to use and purpose. In such a case, it is not foreign to the task required by the legislation to apply the principles of characterisation directed to identifying the appropriate level of particularity or generality.
Arguably, the conditions of consent are such that the development consents in this case dictate the appropriate level of use such that Workmate Abrasives applies to exclude consideration of the genus test. On that view of the case, only use for short-term caravan sites are included in the existing use rights.
However, even if the development consent was silent as to use, which I do not consider to be the case, and the genus test did apply, I find that use as a short-term caravan park is a materially different use to a caravan park involving long-term or permanent accommodation. I reach that conclusion for the following reasons.
First, I note that the characterisation of the use depends on the purpose of the use (O'Keefe at 535; Jojeni at [72]; Royal Motor Yacht Club (Broken Bay) Pty Ltd v Northern Beaches Council [2017] NSWLEC 56 at [28]). To that extent, I find that the decisions in Najask No 1 and Najask No 2 are of some assistance.
Coastplan is correct to submit that the planning instrument involved in Najask was different to that involved in the present case. The fact that permanent accommodation could not fit within the definition of "tourist facilities" was undoubtedly significant to the decision in that case.
However, more fundamental to the distinction between short-term and long-term or permanent caravan sites is that the two are relevantly different purposes. I find that use of a site for tourism purposes and use of a site as a primary residence is a key distinction of the kind alluded to by Kitto J in O'Keefe at 535.
Secondly, and to some extent similarly, use for long-term caravan sites is a use that gives rise to different environmental effects and town planning considerations compared to use for short-term caravan sites (Jojeni at [84]). For example, questions that go to the provision of services, access to amenities, parking, and noise are all different between short-term and long-term stays. Indeed, it is perhaps for this reason that the 1980 consent and 1983 consent were stipulated to be for short-term stays only.
Ultimately, once it is accepted that the entire consent must be read to govern the existing use, it does not matter whether the restriction on the use arose by way of the development's description or by way of the conditions of consent.
I therefore find that Coastplan's existing use rights did not extend to long-term or permanent caravan sites.

Coastplan Consulting v Central Coast Council

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