Evans and Anor. v Maclean Shire Council and Anor.

Evans and Anor. v Maclean Shire Council and Anor. - [2004] NSWLEC 512 - NSWLEC 2004 case summary — Zoe

[12]

9 According to the pleadings, the following issues require adjudication - (i) whether the proposed development to which the development consent was granted was relevantly development for the purposes of a " tourist facility " within the meaning of SEPP 71; and (ii) whether that development, if so characterised, was relevantly State significant development. 10 As will appear the manner in which the case was mutually conducted, issue (i) was not seriously in contest. Rather, having assumed an affirmative answer to the question, the competing cases explored the legal consequences of that affirmative answer for the second of the stated issues. In particular, the second Respondent's case was that in consequence of an affirmative answer to issue (i), it necessarily followed that the development consent had approved development that was prohibited development in terms of the Maclean Local Environmental Plan 2001 (the LEP) and that that result was only legally sustainable by reference to the power that is conferred by the EP&A Regulation concerning the expansion or intensification of "existing uses". The second Respondent argued that once the "existing use" power is necessarily invoked to sustain the development consent which authorised the carrying out of prohibited development, that development cannot in law be State significant development as defined by s 76A(7)(a). 11 If the Applicants are to succeed in their challenge to the validity of the development consent, both issues (which reflect the two ingredients of the statutory concept of State significant development) must be answered in the affirmative. B. THE LEGAL FOUNDATION FOR THE APPLICANTS' CLAIM 12 The Applicants' case is that no matter how the development consent granted by the Council is legally conceived in terms of the legal permissibility of the approved development (whether or not that permissibility is sourced in the LEP or existing use entitlements under the EP&A Regulation), the development consent nonetheless is a legal nullity because the approved development was relevantly State significant development and the Minister (and not the Council) was the relevant consent authority having the responsibility to determine the development application. 13 "State significant development" is defined by the EP&A Act, s 4(1) as having the meaning given by s 76A(7) which is in the following terms: (7) State significant development State significant development is: (a) development: (i) that is declared by a State environmental planning policy or a regional environmental plan to be State significant development, and (ii) that may be carried out with development consent, or (b) particular development, or a particular class of development: (i) that, under an environmental planning instrument, may be carried out with development consent, and (ii) that, in the opinion of the Minister, is of State or regional environmental planning significance, and (iii) that is declared by the Minister, by notice in the Gazette, to be State significant development, or (c) development that is proposed to be carried out in accordance with a development application that the Minister has directed, under section 88A, to be referred to the Minister for determination, or (d) prohibited development in respect of which a direction by the Minister under section 89 is in force. 14 In order to substantiate their legal claim that the approved development was relevantly State significant development, the Applicants who rely in this respect exclusively upon SEPP71, must establish that the approved development was relevantly (i) "development on land to which SEPP71 applies for the purpose of tourist facilities (except bed and breakfast establishments and farm stays)" as referred to in Schedule 2 to SEPP 71; and (ii) was "development that may be carried out with development consent". In this respect, cl 10 of SEPP 71 provides: State significant development (1) Pursuant to section 76A (7) of the Act, development specified in Schedule 2 is declared to be State significant development. (2) Pursuant to section 76A (9) of the Act, the Minister is the consent authority for State significant development. 15 Although in these proceedings the second Respondent has not sought to argue that the approved development was not relevantly development of land to which SEPP71 applies for the purposes of "tourist facilities" (it has argued that it was not relevantly State significant development because, in terms of the LEP, development for the purposes of a "tourist facility" was an absolutely prohibited purpose of development in respect of the subject land), it nonetheless is incumbent upon the Applicants to establish all elements of their claim to declaratory relief: see Jones v Sutherland Shire Council (1979) 40 LGRA 323 at 327 per Hutley JA: Where a person seeks a declaration, he has to prove all the facts which are necessary to enable that declaration to be obtained. This means that he takes upon himself to prove all the conditions necessary to be established, including matters which he could require the other party to prove, if he were the defendant. 16 In seeking to establish their claim that the development consent is a legal nullity because the approved development was relevantly a State significant development, the competing cases have commonly proceeded upon two unstated assumptions which are fundamental to the Applicants' claim, namely: - (i) that it is for this Court to determine for itself whether the approved development was relevantly development for the purposes of " tourist facilities " within the meaning of SEPP71, and (ii) that the effect of s 76A(7)(a) of the EP&A Act (repeated by cl 10 of SEPP71) declaring the Minister to be the consent authority for the State significant development specified in Schedule 2 to SEPP71 necessarily divested the Council of its function as the " consent authority " nominated by the LEP in respect of the development application to which it purported to grant the development consent. 17 Despite the fundamental importance of these two unstated assumptions, they were not the subject of any argument or debate at the hearing. It may be that without expressly so saying, all parties conceded that the correctness of both assumptions was supported by two recent decisions of the Court of Appeal, namely Chambers v Maclean Shire Council (2003) 126 LGERA 7 and Currey v Sutherland Shire Council (2003) 129 LGERA 223 insofar as they commonly held that a development application made to a body that is not the relevant "consent authority" in terms of the EP&A Act is of no legal effect. 18 In these circumstances, I do not think it necessary for me to closely examine the two assumptions other than what I now have to say in respect of the question of who in the present case was the relevant "consent authority" (this being something that was not discussed in either of the decisions of the Court of Appeal). 19 The statutory functions conferred upon a "consent authority" are of fundamental importance to the operation of Pt 4 of the EP&A Act. Thus, to note some of those functions, all development applications are made to the consent authority (s 78A), any procedural requirements relating to the development application must be undertaken by the consent authority (ss 79, 79A, 79B), the planning evaluation of the development application is undertaken by the consent authority (s 79C) and the development application is determined by the consent authority (s 80).

[15]

27 For all of the foregoing reasons, it would necessarily follow that if the Applicants establish that the development for which the development consent was granted by the Council is relevantly to be characterised as (i) development for the purposes of "tourist facilities" within the meaning of cl 10(1) and Schedule 2 to SEPP71; and (ii) State significant development, the relevant consent authority to determine that development application was the Minister and not the Council. The legal consequence of this fact would be that the development consent purportedly granted by the Council would be a legal nullity by dint of the jurisdictional error that was committed by the Council (albeit in all innocence in view of the advice that it had received from Planning NSW that the second Respondent's development application which had been referred to the Department was suitable for the Council to determine). 28 I am now in the position to separately determine the two issues upon which the Applicants must succeed if they are to substantiate their attack on the validity of the development consent. C. DID THE DEVELOPMENT CONSENT APPROVE DEVELOPMENT THAT WAS RELEVANTLY A "TOURIST FACILITY" WITHIN THE MEANING OF SEPP71? 29 In posing the question in this manner and directing attention to the operation of SEPP71, I am acutely aware that the Council, in granting the development consent did not go about its task of determining the second Respondent's development application by reference to SEPP71 presumably because of the advice that it had received from Planning NSW. Rather, its total focus was on the relevant provisions of the LEP. Nonetheless, it is clear that SEPP71 intersects with the operation of the LEP so as to materially affect its operation, most importantly, in the present case in its declaring of State significant development (specified in Schedule 2) and in its declaring the Minister to be the consent authority for that development vide: cl 10. 30 There are other direct impacts of SEPP71 on other environmental planning instruments that are provided for in Part 4 ("Development control") and Part 5 ("Master Plans") of SEPP71 in circumstances where the provisions of SEPP71 prevail over any inconsistencies with other environmental planning instruments (vide cl 5). However, there is no need in this case to consider impacts other than the impact of cl 10.

[26]

44 It is clear from the documentary avoidance that the Council, in granting the development consent - (i) was aware of the existence of SEPP71 but did not consider its impact on the question whether the proposed development was for a permissible purpose of development; (ii) had been ultimately notified by Planning NSW that the development application was " suitable for the Council to determine " (earlier Departmental advice had stated that the proposed development was State significant development for which the Minister was the consent authority); (iii) had considered legal advice on the permissibility of the proposed development which it had obtained from its Solicitors and separate legal advice received from the Solicitors acting for the second Respondent as agent for the owners of the subject land (which latter advice had included the advice that if the Council were to conclude that the proposed development was for a prohibited purpose, then it was open to the Council to grant consent to the expansion of the existing development pursuant to existing use entitlements applying to the subject land); and (iv) had decided that the proposed development was properly characterised as a permissible purpose of development of the subject land in terms of the LEP, namely " a caravan park " and was not a " tourist facility " or " total destination resort " (each of those terms being a prohibited purpose of development in terms of the LEP). 45 Clause 7 of the LEP contains the following definition of "caravan park": caravan park means land used for the accommodation of caravans or other moveable dwellings within the meaning of the Local Government (Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 1995 . 46 The Local Government (Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 1995 applies to "the operation of caravan parks and camping grounds and to the installation of moveable dwellings both in caravan parks and camping grounds and elsewhere" (cl 4) with the express object (cl 3) of providing opportunities for affordable alternatives in short term and long term accommodation: (a) by establishing standards for the design of caravan parks and camping grounds; (b) by establishing standards for the design and construction of moveable dwellings; and (c) by establishing standards to promote the health, safety and amenity of occupiers of moveable dwellings. 47 The Regulation defines "caravan" as meaning a moveable dwelling that is designed so as to be registrable as a trailer under the Traffic Act 1909, but does not include a camper trailer. 48 The Regulation defines "moveable dwelling" according to the meaning that is given that term by the Local Government Act 1993¸ namely 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. 49 The Regulation provides for both short-term and long-term dwelling sites to be established within a caravan park or camping ground, the former being defined as meaning "a dwelling site on which a moveable dwelling that is ordinarily used for holiday purposes may be installed…..". 50 It is apparent that in terms of the Regulation, a caravan park may be approved for either short-term or long-term uses or both and that a short term use would be typically used for holiday purposes. 51 In my judgment, the Applicants' contention that the approved development is relevantly characterised as a "caravan park type tourist facility" for the purposes of the LEP and SEPP71 (and as such concurrently falls within the permissible purpose of development, "caravan park" within the meaning of the LEP and the declared State significant development of 'tourist facilities" within the meaning of SEPP71) is entirely unpersuasive. Its attempt to achieve positive and harmonious outcomes concurrently under the LEP and SEPP71 fails for a number of reasons. Firstly, it fails because the suggested category of permissible development "caravan park type tourist facility" is a hybrid concoction that attempts to straddle the boundaries set by the LEP defined categories of "caravan park" and "tourist facility" resulting in the disingenuous avoidance of the essential question whether the approved development falls within one or the other category. Secondly, it does not demonstrate why the hybrid classification (even assuming its legitimacy) does not ultimately fall within the prohibited category of "tourist facility". The suggested hybrid solution is in truth no solution to the problem of construction posed by the LEP in specifying "caravan park" as a permissible purpose of development within Zone No 1(b) and 'tourist facility" (which includes a "caravan park") as a prohibited purpose of development within the same zone. 52 The question that arises is how the defined meaning of the term "caravan park" that is adopted by the LEP is to be understood and applied in the light of cl 31 of the LEP expressly providing (i) that "caravan park" is a permissible purpose of development within Zone No 1(b); and (ii) that "tourist facilities" (which may include "caravan parks") is a prohibited purpose of development within that same zone. The question must be resolved by the process of statutory interpretation 53 Having been unpersuaded by the Applicants' proffered construction, clearly the most obvious and preferred construction of the relevant provisions of the LEP is to regard "caravan parks" as being comprehended by the defined term "tourist facility" where the proposed development provides for "holiday accommodation or recreation" as the principal component of the use of the caravan park, and as not being so comprehended where the proposed development does not so provide for "holiday accommodation or recreation" as the principal component of the use of the caravan park.

[37]

68 In Section 4 of the Environmental Impact Statement, the proposed development was described in considerable detail. It is sufficient to quote a few extracts. Included within the stated objectives (Section 4.1) is the following: To create a caravan park that offers an attractive holiday environment and caters for the needs of holiday-makers in a way that recognises the documented recreational value of the Clarence River and is consistent with State, Regional and Local tourism initiatives. 69 Section 4.2 ("Accommodation and amenities") which immediately follows the stated objectives, opens with the following statement: The proposal aims to achieve these objectives by expanding the existing caravan park and creating a range of accommodation settings that are capable of fulfilling the requirements of visitors to the Maclean Shire. The proposal contains an achievable long-term vision for increasing the number of sites within the existing caravan park from 64 sites to 297 sites. The proposal is spacious in design and character in order to preserve the existing open qualities of the site and to give guests a holiday experience that reflects the ambience of the Clarence River environment. 70 Upon the basis of the documents supporting the development application, the character of the approved development is unquestionably that of a caravan park, principally providing "holiday accommodation". As such, the approved development unquestionably fell within the LEP definition of "tourist facility", being a prohibited purpose of development of the subject land. 71 The Council's decision that the proposed development was properly characterised as development for the purposes of a "caravan park" was not reasonably open to it, unless its understanding of the relevant provisions of the LEP controlling development within Zone 1(b) reflected the proper construction of those provisions. For the reasons that I have previously given, the proper construction of those provisions was not the construction that was adopted by the Council, acting upon the basis of the legal advices that it had received. 72 As I have held (properly construing the LEP), development for the purposes of a caravan park which was expressly permissible development within Zone No 1(b) was confined to such development where the principal use of the caravan park was for non-holiday accommodation. Clearly, the principal use of the proposed development was to provide holiday accommodation and no other view of the development application was reasonably available. It follows that the Applicants have not established that the approved development was for the permissible purpose of a caravan park.

[46]

82 But this conclusion leads to what became the focal point of the competing cases presented at the hearing, namely whether upon the basis that the development consent is only sustainable by reference to the "existing use" entitlements conferred by the EP&A Regulation, the second ingredient of the definition of State significant development has been substantiated by the Applicants, namely that development for the purposes of a "tourist facility" is relevantly development "that may be carried out with development consent" (vide s 76A(7)(a)(ii)). D. WAS THE DEVELOPMENT CONSENT GRANTED IN RESPECT OF DEVELOPMENT THAT MAY BE CARRIED OUT WITH DEVELOMENT CONSENT? 83 The question posed focuses attention upon the second ingredient of the relevant part of the definition of State significant development, that is alone relevant to the present case, namely that contained in s 76A(a)(ii) which provides as follows: State significant development State significant development is: (a) development: (i) ………….. (ii) that may be carried out with development consent, 84 The parties are in dispute as to the precise meaning of the statutory language and as to whether that meaning has any application to a case (such as the present) where the relevant development consent is sustained by the existing use entitlements conferred by the EP&A Act and Regulation. 85 The parties' competing submissions are to the following effect. The second Respondent submits that "State significant development" is a type or subset of development that "needs development consent". Such development is defined and provided for by the EP&A Act, s 76A, being one of the "threefold classifications" of development recognised and provided for by Division 1 of Part 4 of the EPA namely - (i) development that does not need consent: vide s 76 ; (ii) development that needs consent: vide s 76A (iii) development that is prohibited: vide s 76B . 86 As a type or subset of "development that needs consent" State significant development does not comprehend "prohibited development" except where the Minister has given a relevant direction under the EP&A Act, s 89: vide s 76A(7)(d). 87 Since the development consent properly understood granted consent to development that was prohibited by the LEP and was accordingly "prohibited development" (vide s 76B of the EP&A Act) to which no relevant direction pursuant to s 89 had been given, it does not, and cannot, qualify as "State significant development", because it was not relevantly "development that may be carried out with development consent" (s 76A(7)(a)(ii)).

[52]

93 Accordingly, I propose to adjudicate the case upon the following assumptions (which are favourable to the position of the second Respondent in relation to the question of existing use entitlements) - (i) the development consent approved a development that was prohibited by the LEP, namely a " tourist facility "; and (ii) although the consent was granted, upon the legally erroneous basis that the proposed development was development for a permissible purpose under the LEP, namely " a caravan park ", nevertheless the development consent is legally sustainable by virtue of the availability of the relevant entitlements conferred by the EP&A Regulation for the expansion or intensification of an existing use. 94 In order to arrive at the true meaning of the statutory expression "State significant development" as defined by s 76A(7)(a) and in particular, the second ingredient enunciated in subparagraph (a)(ii), it is necessary to appreciate the statutory context, which most immediately is s 76A, but also includes the whole of Division 1 of Part 4 which provides as follows - Part 4 Development Assessment Division 1 - Carrying out of development - the threefold classification 76 Development that does not need consent (1) General If an environmental planning instrument provides that specified development may be carried out without the need for development consent, a person may carry the development out, in accordance with the instrument, on land to which the provision applies. (2) Exempt development An environmental planning instrument may provide that development of a specified class or description that is of minimal environmental impact is exempt development. (3) If development is exempt development: (a) the development may be carried out, in accordance with the instrument, on land to which the provision applies without the need for development consent, unless that land: (i) is critical habitat, or (ii) is, or is part of, a wilderness area (within the meaning of the Wilderness Act 1987 ), and (b) Part 5 does not apply to the development. A provision made under subsection (2) has no effect at any time during which the land is land to which paragraph (a) (i) or (ii) applies. 76A Development that needs consent (1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless: (a) such a consent has been obtained and is in force, and (b) the development is carried out in accordance with the consent and the instrument. (2) For the purposes of subsection (1), development consent may be obtained: (a) by the making of a determination by a consent authority to grant development consent, or (b) in the case of complying development, by the issue of a complying development certificate. (3) Two types of development that need consent Development that may not be carried out except with development consent comprises 2 types, namely: (a) local development (which includes complying development), and (b) State significant development. (4) Local development Local development is development that is described in subsection (1) and that is not State significant development. (5) Complying development An environmental planning instrument may provide that local development that can be addressed by specified predetermined development standards is complying development. (6) A provision under subsection (5) cannot be made: (a) if the development is State significant development, or (b) if the development is designated development, or (c) if the development is development for which development consent cannot be granted except with the concurrence of a person other than: (i) the consent authority, or (ii) the Director-General of National Parks and Wildlife as referred to in section 79B (3), or

[56]

(c) development that is proposed to be carried out in accordance with a development application that the Minister has directed, under section 88A, to be referred to the Minister for determination, or (d) prohibited development in respect of which a direction by the Minister under section 89 is in force. (8) If: (a) a project comprises development part of which is State significant development, all other development comprised in the project is taken to be State significant development, and (b) but for this provision, part of State significant development would be subject to Part 5, this Part applies to the exclusion of Part 5 and the development may be carried out with development consent, and (c) but for this provision, part of State significant development would be prohibited, the development may be carried out with development consent. (9) The Minister is the consent authority for State significant development. 76B Development that is prohibited If an environmental planning instrument provides that: (a) specified development is prohibited on land to which the provision applies, or (b) development cannot be carried out on land with or without development consent, a person must not carry out the development on the land. 76C Relationship of this Division to this Act This Division is subject to the other provisions of this Act, unless express provision is made to the contrary. 95 It is also necessary to recite the relevant provisions of the EP&A Act and Regulation relating to "existing use". The relevant provisions of the EP&A Act are found in Div 10 of Pt 4 and provide as follows: - Division 10 - Existing Uses 106 Definition of "existing use" In this Division, existing use means: (a) the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for Division 4A of Part 3 or Division 4 of this Part, have the effect of prohibiting that use, and (b) the use of a building, work or land: (i) for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and (ii) that has been carried out, within one year after the date on which that provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse. 107 Continuance of and limitations on existing use (1) Except where expressly provided in this Act, nothing in this Act or an environmental planning instrument prevents the continuance of an existing use. (2) Nothing in subsection (1) authorises: (a) any alteration or extension to or rebuilding of a building or work, or (b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or (c) without affecting paragraph (a) or (b), any enlargement or expansion or intensification of an existing use, or (d) the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 80A (1) (b), or (e) the continuance of the use therein mentioned where that use is abandoned.

[59]

(2) The provisions (in this section referred to as the incorporated provisions ) of any regulations in force for the purposes of subsection (1) are taken to be incorporated in every environmental planning instrument. (3) An environmental planning instrument may, in accordance with this Act, contain provisions extending, expanding or supplementing the incorporated provisions, but any provisions (other than incorporated provisions) in such an instrument that, but for this subsection, would derogate or have the effect of derogating from the incorporated provisions have no force or effect while the incorporated provisions remain in force. (4) Any right or authority granted by the incorporated provisions or any provisions of an environmental planning instrument extending, expanding or supplementing the incorporated provisions do not apply to or in respect of an existing use which commenced pursuant to a consent of the Minister under section 89 to a development application for consent to carry out prohibited development. 96 The relevant provisions of the EP&A Regulation are found in Part 5 which provides as follows - 39 Definitions In this Part: changed existing use means a use to which an existing use is changed in accordance with this Part. relevant date means: (a) in relation to an existing use referred to in section 106 (a) of the Act - the date on which an environmental planning instrument having the effect of prohibiting the existing use first comes into force, or (b) in relation to an existing use referred to in section 106 (b) of the Act - the date when the building, work or land being used for the existing use was first erected, carried out or so used. 40 Object of Part The object of this Part is to regulate existing uses under section 108 (1) of the Act. 41 Certain development allowed (1) An existing use may, subject to this Division: (a) be enlarged, expanded or intensified, or (b) be altered or extended, or (c) be rebuilt, or (d) be changed to another use, including a use that would otherwise be prohibited under the Act. (2) A use to which an existing use is changed is itself taken to be an existing use for the purposes of the Act and may, subject to this Division, be changed to another use. 42 Development consent required for enlargement, expansion and intensification of existing uses (1) Development consent is required for any enlargement, expansion or intensification of an existing use. (2) The enlargement, expansion or intensification: (a) must be for the existing use, or for a changed existing use, but for no other use, and (b) must be carried out only on the land on which the existing use was carried out immediately before the relevant date. 43 Development consent required for alteration or extension of buildings and works (1) Development consent is required for any alteration or extension of a building or work used for an existing use. (2) The alteration or extension: (a) must be for the existing use of the building or work, or for a changed existing use, but for no other use, and (b) must be erected or carried out only on the land on which the building or work was erected or carried out immediately before the relevant date. 44 Development consent required for rebuilding of buildings and works (1) Development consent is required for any rebuilding of a building or work used for an existing use. (2) The rebuilding: (a) must be for the existing use of the building or work, or for a changed existing use, but for no other use, and (b) must be carried out only on the land on which the building or work was erected or carried out immediately before the relevant date 45 Development consent required for changes of existing uses Development consent is required: (a) for any change of an existing use to another use, and (b) in the case of a building, work or land that is used for different existing uses, for any change in the proportions in which the various parts of the building, work or land are used for those purposes. 46 Uses may be changed at the same time as they are altered, extended, enlarged or rebuilt Nothing in this Part prevents the granting of a development consent referred to in clause 42, 43 or 44 at the same time as the granting of a development consent referred to in clause 45. 97 Section 76A(7) creates four separate types or species of the class of development nominated as "State significant development" - each of the types specified in pars (a), (b), and (c), is clearly a type of development that "may not be carried onto except with development consent": vide s 76A(3). Exceptionally the type of "State significant development" specified in par (d) is "prohibited development" (a term that is defined by s 4(1)): vide s 76B - but where a direction has been given by the Minister pursuant to the EP&A Act, s 89 (a) a person may make a development application to the Minister to carry out the prohibited development; and (b) that development may be carried out if development consent is granted to that application "despite any other provision of this Act or an environmental planning instrument": vide s 89(2). 98 The question ultimately at issue in the present case is whether the type of State significant development specified in par (a) of s 76A(7) includes "development" (that is relevantly declared to be State significant development such as is provided by cl 10(1) of SEPP71) "that may be carried out with development consent" where that consent is granted pursuant to the existing use provisions of the EP&A Regulation.

[69]

109 In the second decision, Golden Fleece Petroleum Pty Ltd v Rockdale Municipal Council (1984) 52 LGRA 202, Cripps J, in the following extended passage at 205/206 considered and rejected the argument which had sought to distinguish an application for consent pursuant to the existing use provisions of the Regulation from a development application for consent under the EP&A Act: Section 97 gives a right of appeal to an applicant who is dissatisfied with a determination of a consent authority with respect to his development application . Mr Campbell has submitted that because development application is defined by s 4 to mean an application for consent under Division 1 of Part IV to carry out development and development consent is similarly defined, it is not competent for this Court to entertain an appeal arising under what he submits is an application and consent under Div. 2 Pt IV, i.e. against the refusal by the council to consent to an extension of a building. Mr Campbell submits that because s 97 gives a right of appeal only against a determination of the consent authority with respect to his development application there can be no appeal in respect of an application for change of an existing use or the alteration or extension of existing buildings. The consequence of this submission is, of course, not only that this appeal is incompetent but that there are no rights of appeal in respect of applications to councils for any of the matters referred to in the regulations relating to existing uses. In my opinion, this submission must be rejected. It is expressly provided in s 108 that the regulations making provision for the carrying out of alterations or extensions to buildings shall be deemed to be incorporated in every environmental planning instrument: see s 108(2). Accordingly, Regulation 52 is, among others, deemed to be incorporated in the deemed environmental planning instrument, i.e. the Rockdale Planning Scheme Ordinance. In Hurstville Municipal Council v L. & D. R. Bindon (23 March 1981, unreported), this Court rejected a submission that because environmental planning instruments no longer contain existing use provisions, no consent could be given to applications under Regulations 52, 53 and 54. In the course of rejecting this submission, it was said: .… This submission overlooks s 108(2) which provides that the relevant regulations shall be deemed to be incorporated in every environmental planning instrument'. Consequently, an application for the alteration or extension of a building or the rebuilding of a building or for the change of an existing use to another use would be a development application' within the meaning of the Act and would be determined in accordance with the relevant provisions of the legislation. Section 76(2) (which is part of Div. 1 of Pt IV) provides that where an environmental planning instrument provides that development specified therein may not be carried out except with consent under the Act being obtained, a person shall not carry out development unless consent has been obtained. Properly understood, the application to the council was an application for development consent within the meaning of Div. 1 of Pt IV and accordingly, the appeal is competent.

[74]

113 Whereas the existence of statutory definitions obviously does not conclusively determine the matter, a consideration of the substantive provisions of the EP&A Act relating to development consents conclusively indicates that there is no conceptual or practical distinctions concerning development consents generally or concerning in particular a development consent granted pursuant to the existing use provisions of the EP&A Regulation which provisions are deemed to be incorporated in all environmental planning instruments by force of the EP&A Act, s 108(2). Thus, and by way of illustration (which is not intended to be exhaustive) it can be said of all development consents in terms of the EP&A Act - (i) they require the existence of a development application made pursuant to s 78A ; (ii) they come into existence by virtue of a determination of a development application by the relevant consent authority pursuant to s 80 ; (iii) the determination of a development application involves a planning appraisal of relevant considerations pursuant to s 79C ; (iv) a development consent for the erection of a building is sufficient to authorise the use of the building when erected pursuant to s 81A(1) ; (v) a development consent becomes effective from the date determined in accordance with s 83 ; (vi) a development consent is liable to lapse pursuant to s 95 ; and (vii) a development consent may be modified in accordance with s 96 . 114 There is simply nothing in the EP&A Act, which provides any foundation or support for the second Respondent's argument that a development consent granted pursuant to existing use entitlements conferred by EP&A Regulation is a different factual or legal phenomenon or entity from a development consent not granted pursuant to existing use entitlements. Indeed, the EP&A Act recognises a development consent granted under that Act as a single conception. 115 Accordingly and for all of the foregoing reasons, the Applicants have established that the development approved by the development consent was relevantly "development that may be carried out with development consent" within the meaning of s 76A(7)(a)(ii), and that therefore the second ingredient of the definition of State significant development relevant in the present case has been satisfied. E. CONCLUSIONS AND ORDERS 116 In view of my earlier conclusions that the development approved by the development consent was relevantly development for the purpose of a "tourist facility" within the meaning of SEPP71 and that that development was relevantly "development that may be carried out with development consent", it follows that the Applicants have established that the development approved by the development consent was relevantly State significant development as declared by cl 10(1) of SEPP71 for which the Minister (and not the Council) was the relevant consent authority. It follows that the development consent purportedly granted by the Council was a legal nullity because the Council was not the relevant consent authority and had no power to determine the second Respondent's development application. 117 No question of discretion has been raised in the proceedings and the contest has focussed exclusively on the single disputed question whether the approved development was relevantly State significant development. 118 The Applicants, having been successful on this issue, are entitled to the declaratory and consequential injunctive relief claimed.

At a glance

Court

Decision date

Before

Source

Judgment (76 paragraphs)

Parties

Cases Cited (4)

Cited By (2)