Lindstro Pty Ltd v Tweed Shire Council - [2017] NSWLEC 1150 - NSWLEC 2016 case summary — Zoe

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Lindstro Pty Ltd v Tweed Shire Council

[2017] NSWLEC 1150

Land and Environment Court (NSW)|2016-09-16

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2016-09-16

Source

Original judgment source is linked above.

Judgment (29 paragraphs)

[1]

Judgment

This is a development appeal following the refusal by Tweed Shire Council (the Council) of the Development Application No 15/0742 (the DA) for the conversion of an existing boathouse to a combined boathouse and dwelling on land located at Lot 602 in DP 1098619. The address is Lot 602, SALT NSW 2487 (the Site).
Although privately owned, the Site is within the SALT resort precinct and subject to the SALT Masterplan. It has frontage to Cudgen Creek and adjoins a public reserve owned by the Council (Lot 221 DP 1069887 and Lot 601 DP 1098619). There is a public right of access (for both vehicle and pedestrian) across Lot 221. There is a public right of footway burdening the Site allowing the public to enter onto the Site and use the boat ramp that extends from Lot 602 into Cudgen Creek.
The Council owned land surrounding the Site namely, Lot 221 (Lot 221) and Lot 601 (Lot 601) is classified as "community land" and by operation of s 31 (2A) of the Local Government Act 1993, pending the adoption of a Plan of Management for the community land, the nature and use of the community land must not be changed. Section 45 the Local Government Act identifies the dealings a Council may have in respect of community land.
The relevance of the public reserve land in this case rests upon the fact that Lot 221 is relied upon by the Applicant to access Lot 602 for the proposed development. The Council's consent has not been sought or provided in respect of the development's proposed use of Lot 221 under cl 49(1) the Environmental Planning and Assessment Regulation 2000 (the Regulation) and the lack of owner's consent is one of several issues raised by the Council in support of a refusal of this application.

[2]

Overview

Before I deal further with the contentions in this appeal it necessary to set out some background information.
The Site is identified as a "Deferred matter" under cl1.3 of the Tweed Local Environmental Plan 2014 (TLEP2014). Consequently, the Site falls within zone 2(f) Tourism under the Tweed Local Environmental Plan 2000 (TLEP).
Dwellings are prohibited in the 2(f) Tourism zone under TLEP 2000 unless the dwelling is for a "Caretaker".
A "boathouse" however, is a permissible use in the 2(f) Tourism zone under the TLEP 2000.
Development within the surrounding area - the SALT Village residential precinct, to the west of Snapper Avenue and to the south of Kingscliff business and commercial precinct - is characterised by low density residential dwellings. The community land / public reserve adjoining the Site has improvements such as a public footway, jetty, toilets, covered barbecue and seating.
The Site is currently occupied by a building used for the storage and hire of non-motorised watercraft (a boathouse). As I said, a boat ramp and jetty enter Cudgen Creek from the subject Site. Council holds Crown Licence No L1379377 in respect of the boat ramp. The boat ramp is currently accessed, by way of a right-of-footway which burdens the Site (and benefits the Council) along the northern deck of the boathouse. The public are free to use the right of footway to access the boat ramp or simply sit or picnic on the deck and the evidence is that they do.
At times a local water sports operator called the "Water Guru" operates a paddle board hire business on Cudgen Creek from the boatshed. When the business is operating, generally on the weekend and school holidays, the Water Guru accesses the boatshed on (Lot 602) by vehicle along the easement on the Council reserve land (Lot 221). His use of the boatshed is subject to an informal arrangement with the Applicant. I also understand from the Applicant's planner, Adam Smith that corporate and group events use the boathouse when weather conditions require persons to disembark from this location, and that the facility, has been used by Surfing Australia for training purposes associated with the Surfing Australia High Performance Centre at Casuarina. According to the Applicant, these activities at the boathouse will not cease if the dwelling house use is approved although, I understand the Applicant may take over the operation of the water sports hire business when in residence.

[4]

Remaining Contentions

While the amendments to the plans have reduced the contentions between the parties, as identified in the Council's Statement of Facts and Contentions dated 24 March 2016 (SOFC) there remains significant local opposition to the proposed development and, on the Council's case, a number of legal and merit reasons why the application should be refused by the Court.
Apart from the owner's consent issue, the Council contends, on the evidence of its Senior Planner, Joanne Kay, that the proportion of the building allocated for the purposes of accommodation (at 50% of the total internal floor space), and bedding for 8 people means that the development cannot be characterised as a "Caretaker's dwelling" - which is a permissible use of the Site within the 2(f) Tourism zone TELP but instead must be characterised as a stand - alone residential dwelling which is a prohibited use of this Site. Moreover, such a prohibition cannot be overcome - as the Applicant contends, by characterising the development as tourist development within the SALT village which includes the Peppers (previously Outrigger Hotel) and Mantra resorts thereby meeting the requirement of cl53 and Schedule 3 of the Tweed LEP 2000. In short, Ms Kay's evidence is that the development is not consistent with the primary objectives of the 2(f) Tourism zone as the conversion of the boathouse is to a residential dwelling not a tourist development and is thereby a prohibited use.
It is also contended by the Council that the DA proposes the use of the public footpath along the right of access on Lot 221 as a residential driveway to access the Site. That part of Lot 221 on which the footpath is situated is zoned RE1 Public Recreation and dwellings (including ancillary development such as a driveway) are innominately prohibited within the RE1 zone.
In the alternative, if the Court finds that the development is permissible, the Council contends that the development is inconsistent with the ESD objectives of the TLEP and the objectives of the 2F - Tourism zone and the RE1 - Public Recreation zone. It is also contended that the development is not suitable within the Coastal Zone or adjacent to a water body/waterway. In the ultimate, it is submitted that the development should be refused in the public interest because it will have unacceptable impacts on public amenity and safety, the use of the adjoining community land/public reserve and public infrastructure.

[7]

Zoning

The Site has a total area of about 814 square metres and is rectangular in shape. The land surrounding the Site is zoned, variously, as follows: 1. The adjoining Lot 601 (Council-owned public reserve) is zoned RE1 - Public Recreation under Tweed Local Environmental Plan 2014 (LEP 2014); 2. Part of the adjoining Lot 221 (Council-owned public reserve) is identified as "deferred matter" under the LEP 2014 and is thereby zoned 2F - Tourism under Tweed Local Environmental Plan (LEP 2000); 3. Part of the adjoining Lot 221 (Council-owned public reserve) is zoned RE1 - Public Recreation under LEP 2014; 4. The neighbouring "SALT Village" residential area is zoned R2 - Low Density Residential under the LEP 2014; and 5. Cudgen Creek to the west is zoned W1 - Natural Waterway under LEP 2014.
Apart from LEP 2000 (and LEP 2014, which applies to land adjoining the Site), the land is also affected by a number of State Environmental Planning Policies:

State Environmental Planning Policy No 14 - Coastal Wetlands SEPP 14);
State Environment Planning Policy No 55 - Remediation of Land (SEPP 55);
State Environmental Planning Policy No 71 - Coastal Protection (SEPP 71);
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP);

Development of the Site is also affected by:

Tweed Development Control Plan (DCP);
New South Wales Coastal Policy 1997: A Sustainable Future for the New South Wales Coast (Coastal Policy);
Tweed Shire Coastline Management Plan 2005 (Coastline Management Plan);
Coastal Zone Management Plan for the Tweed Coast Estuaries (Estuaries CZMP);
2004-2008 Tweed Coast Estuaries Management Plan;
New South Wales Rural Fire Service Planning for Bushfire Protection (PFBP);
Department of Primary Industries "Policy and Guidelines for Fish Habitat Conservation and Management" 2013;
New South Wales Sea-Level Rise Policy Statement 2009
National Parks and Wildlife Act 1974;
Environment Protection and Biodiversity Conservation Act 1999 (Cht);
Threatened Species Conservation Act;
Department of Environment and Conservation "Threatened Biodiversity Survey and Assessment: Guidelines for Developments and Activities", November 2014; and
Identification Guidelines for Endangered Ecological Communities.

[10]

The evidence

It is plain that DA 2005 in the Council's bundle (Exhibit 1) expressly incorporates references in the Statement of Environmental Effects (SEE) to movements across Lot 221 to access the boatshed. The easement over the Council's land, Lot 221, registered in favour of the Applicant, allows vehicular access. It is not limited to foot access. The expert planners agree that the DA 2005 allows vehicular access (Exhibit 5, Joint Report, Planning, page 8: see also Transcript 97/24 to 26, Transcript 76/46-47). The experts also agreed, ultimately, that the inclusion of the proposed residential use within the boatshed would generate 13 trips per day for the overall development. (Noting that Mr Smith regarded this as an overestimate if the dwelling was approved because the boatshed operator may stay on site and thereby reduce the trip numbers). That said, it was accepted, and the Court accepts, that 13 additional trips are generated by the boatshed/dwelling house development if approved. This "additional trips" figure, in the absence of other material such as a formal traffic study or assessment, was based on the s 94 Contributions Plan. Regard was also had to Exhibit N, being the worksheet for the 2005 DA, with an agreed split that 6.5 trips per day related to the dwelling component, assuming that 50% was boathouse, and the other 50%, dwelling; collectively, the figure of 13 trips is arrived at. Accepting that 13 trips was the originally assessed traffic anticipated for the boatshed alone, the Applicant argues that an approval of the proposed dwelling house use within the existing boatshed footprint cannot be described as constituting intensification over and above what is already in existence in respect of the use-in-transit across Lot 221 to access the Site. Thirteen trips remains 13 trips.
The Applicant submits that the fact that there is already an existing private use on Lot 602 does not make the Site less suitable for a modification of the private use. Indeed, it is the existence of the private use in the boathouse building that allows this proposal at all, as this proposal is seeking modification of that building to accommodate an associated dwelling. What is situated there, which is the same as what DA 2005 approved, is a mandatory s 79C consideration, being an aspect of the suitability of the Site (Applicant's written submission [30]).
While the Applicant submits that this is a proposal seeking modification of the approved boathouse building, I do not understand it to be saying that this is a modification of the 2005 DA. Rather, this is a new development application for the conversion of an existing boathouse building into a boathouse and dwelling house, a new development which must be assessed on its merits.
Ms Kay, on behalf of the Council, is of the opinion that the proposed use of the existing public footway on Lot 221 as a residential driveway to the proposed dwelling is prohibited for the following reasons. Lot 221 is zoned RE1 - Public Recreation under the LEP 2014. The Land Use Table in LEP 2014 identifies those uses that are permitted without consent (Item 2) and permitted with consent (Item 3) and states that any development not specified in Items 2 or 3 is prohibited. Dwelling houses and ancillary development, such as driveways, are innominate uses within the RE1 zone and are consequently prohibited in the zone. No alternative vehicular (or other) access has been proposed in respect of the subject development and in Ms Kay's opinion no alternative legal physical access exists. Accordingly, in her assessment, the proposed vehicular access to the Site cannot be approved as it must be characterised as a dwelling, being the access to the dwelling house.

[13]

Secondary objectives 1. To permit high-quality residential development as being integral and supportive of the primary intent of this zone (tourist-orientated development) in terms of design and management structure and only at a scale this enhances the proposed tourist resort character.

Ms Kay is of the opinion that the proposed development is not consistent with any of the objectives of the 2F - Tourism zone as the conversion of the boathouse to a residential dwelling cannot be characterised as tourist development. In her opinion, tourist development must, within the SALT Village, include The Peppers (previously known as The Outrigger Hotel) and the Mantra Resort. The primary objective of the zone is to encourage integrated tourist development. The proposed conversion to a dwelling is contrary to this objective as it will not, in her view, encourage tourist development (and could discourage use of the boathouse for tourism purposes). The proposed dwelling is not integral to any existing tourist development. The conversion is therefore considered contrary to the primary objective of the zone as it is not associated with or supportive of any tourist development in the locality, such as Peppers or the Mantra Tourist Resorts adjacent to the SALT Village precinct to the east. While the existing boathouse may be associated with tourist development in the area, the conversion to include a dwelling, given the proportion of the building proposed to be allocated for the dwelling, will, in her view, prejudice the ability of the boathouse to operater as a tourist facility as intended by the 2005 Boathouse Consent.
A secondary objective of the 2F zone is to permit high-quality residential development as being integral and supportive of the primary intent of this zone, namely, tourist-orientated development. The proposed dwelling is not considered to be high-quality residential development of a scale which enhances the proposed tourist character of the zone. Further, the SEE has not satisfactorily demonstrated how the dwelling will be integral and supportive of the existing boathouse. The SEE does not provide detail of how the dwelling will enhance the proposed tourist resort character of the zone. In Ms Kay's opinion, the development will be contrary to the objectives of the 2F zone as it will change the character of the subject site and the surrounding public reserve from an area of passive and active recreation enjoyed by all visitors, including residents and tourists, to a location that is not clearly identified as public domain and has conflicting public and private uses being conducted from the Site. In her opinion, the proposed development is also inconsistent with the objectives of the RE1 - Public Recreation zone because the proposed development is inconsistent with the current use of the adjoining community land. Lots 221 and Lot 601 are zoned RE1 - Public Recreation under LEP 2014, the objectives of the zone are: 1. To enable land to be used for public open space and recreational purposes; 2. To provide a range of recreational settings and activities and compatible land uses; and 3. To protect and enhance the natural environment for recreational purposes.
In Ms Kay's assessment, the use of the existing footpath on Lot 221 for the purposes of a residential driveway will adversely impact upon the public amenity and use of the land for public open space and recreational purposes. For example, the residents and other users wishing to undertake recreational activities upon the public reserve and use the public facilities on Lot 601 will be detrimentally impacted and in conflict with vehicles using the existing footway. The use of an existing footway for a private vehicular driveway will be completely incompatible with the proposed recreational use of the subject site and the adjoining Lots 221 and 601. Vehicles using the public reserve on a regular basis, as the only point of access to a dwelling, are not considered safe or desirable within this public open space. It is clear from the zoning in the previous approvals, according to Ms Kay, that the Site and the adjoining Council land was not intended to be used for a private purpose, such as a dwelling house and associated ancillary development.

[14]

Permissibility

The term "boathouse" is defined in the RE1 Zoning Table as follows: "boatshed" means a building or structure used for the storage and routine maintenance of a boat or boats and that is associated with a private dwelling or non-profit organisation and includes any skid used in connection with the building or other structure.
The Applicant contends that its proposal comes within the definition of "boatshed" in the RE1 zone. The dwelling use and the boatshed use are associated. They are alongside each other. They are co-used and comingled. The kitchen and bathroom facilities and accommodation facilities will be used by those using the boathouse and those occupying the dwelling component. The raison d'etre of the proposed development is an association between the approved boathouse and adding a dwelling component.
It is not a tenable submission, according to the Applicant, to contend that what is proposed is not a "boatshed" within the meaning of the definition. Moreover, the proposal appropriately recognises the relationship between the two uses by preserving the southern viewing deck, by not erecting any fence or gate to the boat ramp in order to allow public access to the boat ramp and by maintaining the use of the private land as a boathouse so that the public may use (by entering into arrangement with the local hirer that operates on the Site or the owner, from time to time) by coming directly onto the land with their own boat and using the boat ramp. According to the Applicant, there is nothing in this proposal which precludes, prevents, impedes or restricts the public access. The Applicant contends that the concerns expressed by Council's expert, Ms Kay, and the local residents about public /private land use conflict are not made out on the evidence and there is no principle of planning law that requires public uses to be on particular parcels of land and private uses to be on a distinct parcel of land. Ultimately, the Council, it is submitted, is asking the Court to refuse this development application because it is said there is a grey area between public and private use. No planning or policy principle has been cited by Council as requiring the exclusion of private use from areas accessed by the public or vice versa. The Applicant submits this would be the antithesis of good planning.
According to the Applicant, the development will be used by those occupying the SALT precinct. The boat ramp will continue to be used by those occupying SALT as well as other members of the public. No suggestion can be made out on the evidence that there is any amendment to the SALT Masterplan. In any case, the SALT Masterplan, annexed to Mr Smith's Statement of Evidence, specifically allows a boatshed or boathouse on Lot 602. That is the nature of what is proposed, together with any ancillary dwelling component. Furthermore, it does not matter whether the dwelling component is characterised as an independent use, as cl 53 Tweed LEP 2000 in Schedule 3 permits the dwelling associated with the tourist use of the overall SALT development - which is the case at hand.
Mr Smith explains this in the joint report in the follow terms (Exhibit 5 contention 1). By virtue of cl53 and Schedule 3 of the TLEP 2000, dwelling houses are permissible on portions 194,301 and 312 King Beach, South Kingscliff. These proportions are the original "parent "parcels of what is referred to as the SALT village and which Lot 602 is located on (or created from). In other words, Lot 602 has been crated from the subdivision of the parent parcels listed above. It is noted that Schedule 3 of the Tweed LEP 2000, states, inter alia:- (1) An application made pursuant to this item must not be granted unless the consent authority is satisfied that the development , whether or not to be carried out in stages, will include a hotel, motel or tourist resort as the primary development and the number of units /rooms in that hotel , motel or tourist resort will at all times exceed the number of dwellings or dwelling houses included in the completed development . (2) If a subdivision is proposed to create an allotment for a dwelling house as part of the proposed development then such allotment must have a minimum area of 450m2" Currently, the SALT development comprises 665 units /rooms in the hotel /motel/tourist resort components (by reference to development consents publically available on the Council and Department of planning websites) and a total of 622 dwellings. The addition of a dwelling house within the existing structure on Lot 602, which is zoned identical to each of the residential lots approved above, will see the number of dwellings in SALT village increase to 623 dwellings. Accordingly, the number of rooms in the hotel /motel /tourist resort component will continue to exceed the number if dwellings and therefore a "dwelling house" is considered to be permissible development with consent under clause 53 of Schedule 3. The numbers above were sourced from a copy of the latest updated and approved version of the SALT Masterplan before the Court.
Ms Kay rejects Mr Smith's interpretation of cl 53 and Schedule 3 and contends that the development properly characterised is development for the purposes of a dwelling house and is therefore prohibited within the 2(f) Tourism zone.
In her opinion Column 2 of Schedule 3 is conjunctive such that the proposed development must be for the purpose of dwelling house and a hotel, motel and /or tourist resort. Ms Kay does not believe that the proposed development is for a dwelling and hotel, motel or tourist resort (or any combination of them). In her assessment Schedule 3 of the TLEP 2000 facilitated the SALT development within the 2(f) tourism zone. The 2005 consent (DA02/1422) was approved in accordance with the provision of this Schedule, balancing the number of dwelling against the number of tourist units. The SALT Staging Plan when examined in conjunction with the development consent did not identify the subject lot for residential purposes. To use the Schedule as a means to permit a dwelling house within the 2(f) zone is contrary to the intent of the additional uses permitted within the parent lots, despite the ratio of dwellings to tourist remaining less than the number of tourist units.
In response to the suggestion that the Schedule 3 is conjunctive, Mr Smith said that following the Council's logic any development application that has been lodged on the 2(f) zoned lands, including each of those for separate dwelling houses on each residential lot, must also have to contain a hotel, motel or tourist resort. Clearly, this has not occurred and nor could have occurred on residential lots in the vicinity of 500m2 to 600m2 in area, being the area of the majority of lots developed for residential purposes. It is his belief that the reference to "uses" is more appropriately aligned to the wording in Column 3, and "the development", being taken as that to which the master plan covering each of the parent parcels , must provide for a Hotel , Motel or Tourist Resort as the primary development and that the number of units /rooms in that Hotel , Motel or Tourist Resort will at all times exceed the number of dwellings or dwelling houses included in the completed development . The intent of the reference to the completed development is for a mixed development comprising hotel, motel, tourist and residental uses was one relating to the broader completed development and not one that was intended for each and every single allotment created from the original master plan.
Ms Kay, to some extent, concurred with Mr Smith's view that the intent for a mixed development comprising hotel, motel tourist and residential uses was one relating to the broader completed development and not one intended for each and every single lot created by the master plan - a mix over the parent parcels. However, this mix did not identify the subject lot for the purpose of residential.

[15]

Caretaker

While the Applicant's principle case is that the proposed boat house with dwelling component is permissible under clause 53 and Schedule 3 of the 2000 LEP, the Applicant said it would accept the limiting of the boathouse dwelling component to operation as a caretaker's dwelling to resolve the permissibility issue on the Site if the Court forms the view that but for such a condition, the proposal should not be granted development consent (AWS 29/8/2016 at [22]-[23]).
In respect of the Caretaker function, Mr Smith's evidence is that the proposed development is to provide a residential element to the existing structure in order to ensure that the site is properly managed, cared for and maintained. The Applicant gave evidence that there have been instances when property damage associated with parties or general anti-social behaviour in the reserve adjacent has occurred. The integrated design of the residential and boat house use in one building demonstrates that the proposal is defined as "caretaker "dwelling in accord with the definitions accepted by the parties ; the Oxford and Macquarie Dictionaries.
Ultimately, the Council's further submissions on legal issues at paragraph 18 conceded that limiting the boathouse dwelling component to the operation as a "caretaker's dwelling" would resolve the permissibility issue on the Site . Although, Ms Kay and the local residents were not aware of any need for a caretaker for security reasons. The Council's Recreation Services Unit reported only minor vandalism since refurbishment of the amenities five years ago and that was limited to graffiti. In Ms Kay's opinion there is ample passive surveillance from the residential properties near the Site.
In conceding the permissibility of the caretaker dwelling on the Site the Council submitted that the Applicant would need to exclude and abandon any reliance on Lot 221 as the driveway servicing the Site , because the use of Lot 221 for any residential purpose including the purpose limited to a caretaker dwelling is prohibited.

[17]

The Applicant's position

The Applicant maintains that the amended plans, the DA form itself, and Statement of Environmental Effects (SEE) make it expressly clear in terms that the development application relates only to the Site, the private land owned by the Applicant. No consent is sought for any activity on Lot 221. While the SEE notes, in s 1.2, that the site has direct access "to a three-metre wide access driveway that services the site and surrounding public reserve facilities", the Applicant maintains that this statement of fact does not mean that Lot 221, or that access driveway, is part of its development application.
In short, no work is proposed on Lot 221. The Applicant also asserts that vehicles already use the access path to the private boathouse on the site under the 2005 development consent. The Applicant holds keys that allow it to lawfully negotiate the bollards installed by Council where Lot 221 adjoins Point Break Circuit. Lot 221 is subject to a right-of-access in favour of Lot 602 and there is no need for any deferred commencement condition requiring that an s 88K easement be sought for example.
The existing right-of-access extends to both pedestrian and vehicular access and covers the whole of Lot 221. Clause 49 of the EP&A Regulation only requires the consent of the owner of land to which a development application relates (cl 49(1)(a)). The meaning of that statutory phrase was considered by the High Court in North Sydney Council v Ligon 203 Pty Ltd (1996) 185 CLR 470 at 475-476. The Applicant maintains that the reasoning in the decision in that case is determinative of the owner's consent contention in the present circumstances.
In Ligon, the DA was for the redevelopment of land on which the North Sydney Club was built. It was to add a 10-storey, new residential block to the club premises. Access to the land required crossing adjoining land owned by Century Plaza, over which the club held an easement, being a right-of-carriageway, and two easements conferring rights-of-footway. At the time, s 77 of the EP&A Regulation required that a development application be made only with the consent in writing of the owner of the land to which the development application related, using identical language as the present cl 49 of the Regulation . The contention of the Council in Ligon was identical to the contention of the Council here and, in summary, was that development consent can only be granted with the consent in writing of the owners of Century Plaza, the servient tenant. The Applicant submits that the answer to the question, whether the owner's consent of Council (as the owner of Lot 221) is required in the present circumstances, does not depend on the terms of the right-of-access or easement over Lot 221. The fact that a development application relates to one parcel of land does not mean that that development application relates to the adjoining land, even if consent is required for development on the adjoining land: Ligon at [476].
In the present case, the development application relates to a particular parcel on which work is being carried out, namely, Lot 602. The change to the use of Lot 602 on any measure is modest - a dwelling component (a set of beds) is being added to an existing boatshed. That is the land to which the development application relates. That is not to say the impact (if any) on adjoining land is not relevant to the assessment of the development application. Plainly, this aspect may be considered under s 79C. As in Ligon, the development consent at issue in this appeal is sought for work and use of the subject site and not for the ultimate associated use that will be made of the right-of-carriageway on adjoining land. The issue of whether a development consent is required for the use of Lot 221 only ever arises if the use of that lot is intensified. As noted in Ligon, at [481], the prospect of intensifying the use of Lot 221 may be relevant to the exercise of the planning discretion to grant or refuse consent to the development application but does not go to the issue of cl 49 owner's consent. The consideration of off-site environmental impact is distinct from the contention that Council's consent as owner is required and is addressed by the Applicant's planner, Mr Smith, in a joint report under Contention 3. According to the Applicant the amendment of the Asset Protection Zone (APZ), which was the subject of Contention 1.3, to remove any works on adjoining land, makes it plain that the development application for the purposes of this appeal in respect of the Site. In any event, if the Court were to find against the Applicant on that point, the Applicant submits that the Court has power to grant owner's consent under s 39(2) of the Land and Environment Court Act 1979 (the Court Act), as Council is the landowner: Sydney City Council v Ipoh (2006) 149 LGRA 329.

[18]

The Council's position

The Council contends that the development application does propose a change of use of Lot 221. Council relies on the contents of the Applicant's SEE dated August 2015 at [2.2], where it says: Car parking and access Currently, the existing operations utilise car parking within the public car park off Point Break Circuit. There is an existing right-of-way over the reserve between the boathouse and the public car park and it is used from time to time by the owners for the purpose of access to the boathouse and for parking vehicles in the boathouse. The Applicant proposes to maintain the use of the public car park for car parking associated with the existing boat hire use whilst allowing limited use of the right-of-access solely for the purposes of the residential access to the boatshed. This will require the maintenance of the existing bollard restrictions at the boundary of the public car park and for their removal to be limited solely to the residence of the boathouse. In the interest of ensuring safety and security of both the boathouse and their vehicle this proposal seeks to have the car parking within the boatshed as shown on plan. Accordingly vehicle access to the boathouse dwelling will be provided from the existing driveway - right-of-way off Point Break Circuit. A car will be able to park within the existing structure by the existing roller door. There is sufficient space within the building to park one car. A separate vehicle will also be able to park on the driveway within the site. The parking and turning areas are demonstrated within Appendix A.
The development application which involves an additional proposed land use on Lot 602, being a residential dwelling use or Caretaker use, proposes the use of Lot 221 as the residential driveway servicing Lot 602. Currently, as the Applicant's consultant states above, it is only used for a boathouse and the development application seeks: 1. To add a residential land use; and 2. Allow the use of Lot 221 as the residential driveway for that new use.
The Council contends, for those reasons, there can be no doubt that Lot 221, and its use as the residential driveway to Lot 602, is an integral part of the development and is therefore part of the development application. It is also submitted that there can be no doubt that by introducing an entirely new, different and additional use of Lots 221 and 602 that the use of that land is proposed to be intensified if this development application is approved. The extent or degree of any change or additional land use is not relevant to the question of whether there has been intensification. If land is used for one purpose and a new use is introduced in addition to the other use then the use of the land is intensified. Intensification is different to the impact of a use. Intensification embodies a mere notion of increase: Sydney City Council v Houlakis & Anor (1996) 92 LGERA 401 at 404-405; Auburn Council v Constani & Anor [2000] NSWLEC 194 at [42] and [46].
The Applicant submits that the Ligon case is indistinguishable. However, the Council contends that is wrong. As a consequence, Ligon is not determinative of the owner's consent issue in this case. As the High Court said in Ligon: An intensification of the use of the easement for access and consequent upon the development of "dominant tenement land" would constitute a development of the land the subject of the easements for which consent would be required.
Furthermore, the Court said, (at p481): The use of the servient tenement land to give access to the dominant tenement land is an existing use and unless that use be intensified no question of consent to a development of the servient tenement land will arise. It may be expected that the use will be intensified but it does not follow that the prospect of intensification makes the application already lodged by the dominant tenement invalid for want of consent of the servient tenement. The prospect of intensification of use is capable of affecting the discretion to grant or refuse the dominant tenement application but that is a different problem.
In the present case the Council submits that there is no doubt that the use of Lots 221 and 602 will be intensified, consistent with the principles in Houlakis. In Ligon, the Court distinguished the prospect of intensification which did not mandate owner's consent. The Council submits that the development application undoubtedly intensifies the use of Lots 221 and 602 and therefore the requirement for owner's consent under cl 49(1) of the EP&A Regulation is triggered. It is submitted that the Applicant falls into error by not recognising the clear distinguishing features between the subject development and the circumstances in Ligon. Although the Applicant recognises the concept of intensification - Applicant's submissions at [25]) they do not grapple with the distinguishing circumstance in Ligon compared to the present case, vis-à-vis, and the prospect of intensification. Furthermore, although the Applicant is correct to observe that the Court has power under s 39(2) to give owner's consent, the present case is fundamentally distinguished. Lot 221 is classified as "community land" under the Local Government Act and its use is subject to the provisions of that legislation. The Court has the same powers as the Council by operation of s 39(2) of the Court Act. The Council's powers to give owner's consent in relation to community land under the Local Government Act are fundamentally tempered by s 45. It must be noted that s 45(3) provides that: A council may grant any other estate in community land to the extent permitted by this division or under the provisions of another Act,
The word "estate" is defined in s 21(1) of the Interpretation Act 1987 (the Interpretation Act) as including "an interest, charge, right, title, claim, title demand, lien and encumbrance whether at law or in equity."
According to the Council it can only grant owner's consent (being a right of law to the lawful lodgement of the development application) to the extent permitted under Div 2 Pt 2 ch 6 of the Local Government Act or the provisions of another Act. No provision has, or can be identified, under Div 2 Pt 2 ch 6 of the Local Government Act or the provisions of another Act permitting Council to grant owner's consent to the lodgement of the application in this case. It necessarily follows, from s 39(2) of the Court Act, that the Court, on this appeal, likewise does not have any power to grant owner's consent to the development application.

[19]

Findings - The contentions relating specifically to the use of Lot 221

Clause 49(1) EP&A Regulation provides 49 Persons who can make development applications: (1) a development application may be made: (a) by the owner of the land to which the development application relates, or (b) by any other person, with the consent in writing of the owner of that land.
It is the fact that Council's consent as owner of Lot 221 has not been sought or given in respect of the use of Lot 221 for vehicular access to Lot 602.
It is also the fact that the DA clearly includes the use of Lot 221 as a means of vehicular access to Lot 602, as outlined in the SEE dated August 2015 within the terms of an existing registered easement.
In my assessment of the evidence the use of the existing easement over Lot 221 as a means of access to the development (to either the proposed dwelling component of the boat shed or Caretaker) cannot be characterised as a residential driveway. Simply put, there is no evidence of any intensification of the use of Lot 221 by the additional use of the easement proposed by this development application such as to require consent from the Council as owner. The application documentation before the Court does not propose any works or unreasonable use of Lot 221 outside of the existing easement burdening that lot and benefiting Lot 602.
In the present circumstances, the occasional use by vehicles to access the private boathouse/dwelling/ Caretaker dwelling on the Site does not change the nature of the use of the pathway across Lot 221, as it is an activity entirely subsumed by the ordinary use of the public reserve for which transit will be part. Such use will be entirely ancillary to the overall use of the public reserve's driveway as one used for miscellaneous purposes on Lot 221. The transit of a private vehicle going to and from a dwelling across a public reserve is not inconsistent with the status of land as a public reserve and members of the public will still be able to use Lot 221 in exactly the same way as they do now: City of Canterbury v Saad [2013] NSWCA 251 at [43] to [44]. There is no evidence of any change of overall use of Lot 221. The frequency of trips is not likely to increase or, if it does, it will be entirely subsumed by the current use of the pathway by Council vehicles and the use of Lot 221 by adjoining owners. Unlike Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114, the use of Lot 221 as access does not characterise the access way as a residential driveway. I accept, on the evidence of 13 trips per day, such use is subordinate and an occasional activity to the dominant purpose of the use of Lot 221 as a public footway and area for Council vehicles to drive to collect rubbish from the park or carry out maintenance in the reserve.
In those circumstances I do not accept that there is a need for the Council's consent (as owner of Lot 221) to the lodgement of this application.
However, if I am wrong on that matter and owners' consent is required I cannot accept the Council's submission that the Court does not have power under s39 (2) of the Court Act to give owners consent in this case.
Lot 221 is zoned RE1 Public recreation and the boatshed (which is defined to include a private dwelling) is expressly permissible with consent. Apart from that, a road, which is defined to include public and private road, is expressly permissible with consent in the RE1 zone.
Based on the Court's reasoning in Ipoh, there is no difficulty here in the Court standing in the shoes of Council as a property owner in this respect and granting owner's consent for any further development consent that may be required for the additional use of Lot 221 for the dwelling component of the boatshed. In my considered opinion, the consent to the lodgement of a development application is not a grant of an interest in land within the definition of the provisions of the Local Government Act and the Interpretation Act and, therefore, there is no prohibition under the Local Government Act in granting owner's consent in relation to the use of Lot 221, having regard to the reasoning set out by the Applicant in its Further Written Submission dated 8 June 2016 at [13] - [15]. Accepting as I do that Lot 221 is a public reserve and no interest in land can be granted over the public reserve without a Plan of Management in the present case, the proposition that this precludes the grant of owner's consent cannot be sustained on the reasoning of the Council's case. Consent to lodge a DA is not the creation of an interest in land within the meaning of s 45 and s 21. The right to lodge a DA is a right to take an administrative step and it cannot be properly characterised as an estate in land in the terms within the meaning of s 45 of the Local Government Act.
In the circumstances, the Applicant is not seeking to extend the current easement or travel outside the existing path by increasing its width which, without question, would be an interest in land under cl 45 of the Local Government Act, in my view, and require an amendment to the 88B Instrument on title. As the Applicant submits, the terms of the right of access across Lot 221 are the deemed terms in Part 14 of Schedule 8 of the Conveyancing Act 1919, and allow passing across Lot 221 by any reasonable means and also doing of anything reasonably necessary for that purpose, including taking onto Lot 221 and carrying out any work on Lot 221 such as constructing, placing, repairing or maintaining trafficable surfaces, driveways or structures. The Applicant's proposed use of Lot 221 by crossing with vehicles is a use well and truly within what is permitted by these terms. No construction work of any kind is proposed on lot 221 (Applicant's Further Written Submissions and Reply on Legal issues dated 29 August 2016 at [1]).
There can be no dispute that the terms of the existing easement extend to the use proposed by the owner of the land to access the boathouse/dwelling for use by a caretaker. Ms Kay ultimately agreed with Mr Smith that the likely trips to be generated by both uses will be in the order of 13 trips per day and no more. There is no identified increase in trips over and above those approved under the 2005 development consent based on the planning evidence. While I accept that the impacts of such use go to the merits of the application, as I've said in respect of the legality of owner's consent excepting if the new use were intensification, on that basis any consent required is given by the Court under s 39(2) of the EP&A Regulation.
For the reasons stated I am satisfied that I have power to determine this DA.

[20]

Contention 2

The development application should be refused because it is for prohibited development.
After careful consideration of the TLEP and the other evidence and the parties' competing oral and written submissions, I accept that the proposed boathouse with dwelling component is permissible under cl53 and Schedule 3 of the 2000 TLEP. Mr Smith's analysis and interpretation of the planning instrument summarised in the joint report and referred to earlier is correct.
I do not agree with the Council that for a proposed development to be permissible with consent under that clause it must, in effect, be part of a DA for the entire SALT development. I agree with the Applicant that a DA can relate in the relevant sense of that term under s76 A of the EPA Act and the EP &A Regulation (clause 49 and Schedule 1) to a lot within SALT and take advantage itself of clause 53. The Council's construction of clause 53 is in my assessment incorrect as it would render the clause meaningless. It is not an interpretation which is in my opinion a proper purposive construction nor is it one that is open on the plain words of the clause 53.
This is not a development which can be divorced from its context. This was apparent during the view of the site and locality. It is a development that will be used by those occupying SALT. The boat ramp will continue to be used by those occupying SALT, as well as other members of the public. The SALT Master plan does not need to be amended to accommodate the proposed use because the SALT Masterplan (annexed to Mr Smith's statement of Evidence) allows for a boatshed together with an ancillary dwelling component. I agree with the Applicant that it does not matter whether the dwelling component is characterised as an independent use, as clause 53 specifically allows dwellings and the tourist resort. Clause 53 applies to the subject land.
If I am wrong in that interpretation then I am satisfied on the evidence that the development is clearly permissible for the purpose of a dwelling house for a "Caretaker" under the 2 (f) Tourism zoning in TLEP. In reaching that conclusion I have had regard to the ordinary meaning of "Caretaker" as "a person who takes care of a thing or place" (Macquarie Dictionary). Those persons using the accommodation will perform this caretaker role by ensuring that the site is properly managed. Cared for and maintained.

[21]

The Merits of the proposal

Based on the evidence before me I do not consider that there will be any alteration in respect of public access to the foreshore or to the public areas as a result of the part conversion of the structure to a combined residential and boat house use.
After a consideration of the amended DA plans and the Applicant's draft conditions of consent it is my opinion that there will be no external feature which will indicate that the boathouse building includes residential accommodation or that a residential use is occurring over and above what is able to occur now. The general public including the Applicant can place a chair or umbrella on the public deck now - nothing will change in that regard. While there may in the future be some evidence of domestic use on the northern side of the Site that is presently a private area and not open to the general public or readily visible from the picnic area and deck on the southern deck. Importantly, the consent provides that no landscaping, fences or similar are to be installed on Lot 602 or along the boundary between Lot 601 and Lot 602 that would restrict public access to any public facilities including the jetty and boat ramp (Condition 42 Exhibit 8). Importantly, the consent restricts the use of the building as a dwelling. It is only permitted while a commercial business for hiring of water craft is operational (condition 43). The use of the building for residential purposes will only be permitted in conjunction with the approved commercial use by DA 05/0028 (condition 39). The consent mandates that public access to the public boat ramp is to be retained at all times (condition 41).
Clause 8 (1) (b) of TLEP allows this development to be approved after a consideration of the relevant aims and objectives of the TLEP. I have undertaken that task based on the evidence.
Council asserts that the development is inconsistent with the principles of intergenerational equity as defined in cl5 of the TLEP. I cannot accept that assertion on the evidence before me. In my assessment none of the matters listed in contention 3.1(a) of the SPOFC isolate areas of departure from the principles of intergenerational equity as distinct from alleged environmental impacts which are in my assessment not made out on the evidence. As the Applicant submits, the principle of intergenerational equity requires consideration of maintaining the health, diversity and productivity of the environment for the "benefit of future generations." Environment is defined in s4 of the EPA Act as embracing built environments as well as the natural environment. The boathouse /dwelling will in my assessment have a positive impact on health, diversity and productivity of the environment. It allows the future use of the foreshore area and those staying over at the boathouse /dwelling and the general public to use the footway easement over the Site, and the boatshed facilities (hiring craft). It does not impede or impact negatively on the use of the surrounding foreshore, based on my assessment of the evidence which includes a consideration of the opinions expressed by the local residents. I accept that they have fears about noise and wild parties, vandalism, safety concerns about traffic conflicts. However, such fears are not supported by any objective evidence in this case. Unsubstantiated fears cannot be relied as evidence of a fact. The vehicle trips to and from the boatshed/ will be unchanged in number based on the Council's evidence. Accordingly, there is no basis to accept that an approval of this DA will generate unacceptable safety concerns along the access path lover Lot 221.
Importantly, the evidence supports a finding that the development will not reduce public access to the foreshore. The easement burdening the Site ensures this and so do the conditions of consents. The signage heralds the public use of the boat ramp and the open access means it will remain accessible at all times. I cannot agree with Ms Kay's concerns as expressed at p4 of the joint report. There is no objective evidence to support a conclusion that the approval of this DA will reduce the public use of the boat ramp. It is reasonable to expect that the residential use will increase security in the public domain around the boatshed and help avoid incidents of property damage and graffiti of the adjoining public amenities, as acknowledged by the planners at (p13 exhibit 5).
The primary use of the Boathouse will not be changed by this development the boathouse will remain an integral part of the tourist development within SALT.

[22]

Coastal Policy

I have considered the matters raised by the Council in contention 5. The New South Wales Coastal Policy is a high level planning policy document. Objective 3.2.4 does require consideration of the design and locational principles in Appendix C Table 3. The setback line referred to in table 3 is concerned with a setback from the seaward boundary of the Coastal Zone and not an internal creek such as Cudgen Creek as the Applicant contends. That said, the principle that no new development will be permitted to impede public access to foreshore applies to new development and to the built form. In this instance the building remains the same in location, appearance, bulk and scale. I do not accept on the evidence that any part of this development will impede public access to the foreshore of Cudgen Creek. The development if approved will leave the existing public access arrangement in place namely, via the existing right of footway easement combined with signage required by draft condition 15 of the consent.
In short, I agree with Mr Smith's assessment that after approval the boatshed will be largely as was approved in 2005. I do not consider the proposed shutters or window and door treatments will alter the appearance of the building, and be contrary to the aesthetic qualities prescribed within Objective 3.2 of the Coastal Policy as contended by Ms Kay. Rather I accept Mr Smith's assessment that Goal 3 of the Coastal policy has been carefully assessed in this application. The public setback lines for the building were carefully assessed and accepted for the boathouse in conjunction with the original DA 2005 has not changed. Despite the concerns expressed by Ms Morrow on behalf of Lifebridge East Inc the existing public access to and along the coastal foreshore for pedestrians and persons with a disability will be retained and in my opinion cl8 (b) of the Coastal policy remains satisfied as it was when the original DA was assessed. There will be no change by an approval of this DA given the fence has been removed and the draft conditions. There is of course the argument for improved passive surveillance as Mr Smith states which may improve the amenity and reduce anti-social behaviour.
The existing visual appearance and impact of the boatshed building were deemed acceptable at the time of the 2005 consent and will be unchanged. Objective 7.1 of the Coastal Policy concerns a broad strategic objective related to acquisition of significant sites and the provision of public access to the foreshore. The proposed development will continue to provide the existing level of access to the public foreshore across the Site via the easement. There is no reasonable identified noncompliance with this policy objective in my opinion.

[25]

SEPP 71

Mr Scott Hetherington is an ecologist employed by the Council in the position of Senior Program Leader Biodiversity. His statement of evidence is Exhibit 3. He was engaged to address Contention 5.7 (c) regarding vegetation damage and bank erosion along the foreshore of Cudgen Creek and Contention 6.2 regarding the impacts of the vegetation surrounding the subject site as a result of bushfire protection. (However, Contention 6.2 is no longer in issue given the amendment to the plans).
SEPP 71 applies to the land within the coastal zone (as defined in the Coastal Protection Act 1979) and it is accepted that the Site is within the coastal zone. Having regard to the aims of the SEPP set out in cl2 and the matters for consideration in cl 8, Mr Hetherington states in his written evidence that the ramp into Cudgen Creek accessed across the Site is designed to minimise the impact of the public access to the waterway by preventing erosion and damage to the vegetation. And, that the significance of this facility is acknowledged in the Cudgen Creek Public Access Plan as a public access facility that suitably recognises recreational access and environmental values protection.
In the absence of access structures (such as boat ramps and jetties) public use of foreshore areas results in the direct and cumulative loss if vegetation.
The Applicant submits that Mr Hetherington's evidence is not relevant if I accept that there is no impact of the proposed development on Lot 602 that forces members of the public to use areas of Cudgen Creek to the jetty on Lot 601 or other areas for access to water. In short, by accepting this fact then I would be satisfied that there is nothing being done on Lot 602 in this application that would result in the encouragement of usage of other areas. Mr Hetherington's evidence assumes that an approval of this application impacts on other area but identifies no evidence to support his assumption.
I must agree with the Applicant's submission as outlined above because there is simply no satisfactory basis on which to conclude on the evidence that a conditional approval of this dwelling on the Site within the existing structure of the boat house is likely to generate any change to the public's use and access to the boat shed and ramp or to encourage the use of other areas of Cudgen Creek for access to the water such as to generate environmental harm.
The development does not impede or restrict public access of use to the jetty and ramp and the boatshed and the draft conditions will in my assessment ensure such unimpeded and unrestricted access to the jetty and ramp and the boatshed into the future.
Mr Smith's evidence is that the proposed development offers a building that provides a modest private dwelling and an area for the continued storage and routine maintenance of boats/paddle boards. There is an intermingling of the boatshed and the private associated dwelling in the one building. The kitchen, bathroom facilities will be used by those using the boatshed component and those occupying the dwelling component (Joint report Exhibit 5 at contention 1).
There is no evidence to support a finding that the boatshed use - the paddle board hire business (whether operated by the water Guru or the Applicant when he is residing at the boathouse) or any other boatshed use will be compromised or changed by an approval of this DA. Nor is there any satisfactory evidence to suggest that public access to the boat ramp and southern viewing decking will be impeded by an approval of this application. The easement burdening Lot 602 ensures that the public have access to move on and over part of that private lot. The current position, as the Applicant submits, already recognises interaction of the Site between public and private uses. Nothing will change with an approval of this DA. Ms Kay and several of the residents have expressed the view that the dwelling use, if approved, will be perceived by the general public as private and as a result of that they will "shy away" from using the boat ramp and viewing deck. The public deck is already hard up against the wall of a private boatshed. The evidence is that the public already use this deck which adjoins a private use - they do not shy away from it because of private ownership. The DA proposes modest internal and very few external changes to the built form. In my assessment of the evidence an approval of this DA will not be readily perceived by the public. They will continue to see and be able to use the southern deck and boat ramp without impediment. It is unlikely that they will perceive any change to the built form as the works are in the main internal - apart from some new metal blinds on some highlight windows. There is no satisfactory evidence to conclude that the development will compromise the public use of that area.
In my assessment the draft conditions proposed by the Applicant (Exhibit 8) such as those numbered 36-43 will assist to ameliorate any environmental impact or any concern about environmental impact generated by the use of the development. Condition 38 requires the use of the building for residential purposes shall only be permitted in conjunction with the approved commercial use by DA 05/0028 and this in my opinion reinforces the integrated use intended by this application.
In my opinion the boatshed will continue to be part of the wider SALT development precinct and available for use by local residents and tourists as anticipated by the Masterplan. The nature of the Site is that it involves an interaction between the public and private uses and as the Applicant submits a proper planning outcome in this case requires that that relationship be recognised. In my assessment there is no evidence to conclude that the development is inconsistent with the primary objective of the 2 (f) tourism zone to encourage integrated tourist development and ancillary and supportive facilities where these facilities are an integral part of the tourist development. As Mr Smith states there are two levels at which the development supports tourist development (Smith statement Exhibit C). Firstly, as part of the boathouse, which is described on the SALT Masterplan as the SALT boathouse, and secondly as part of the overall SALT development. I accept on the evidence of both planners that the development does provide an integral and supportive facility to the SALT development and the dwelling is integral and supportive to the tourist development being the boathouse itself. Ms Kay agrees that the boathouse is integral and supportive to the overall tourist development, being the SALT resort development (Joint report Exhibit 5 p6). While there is no requirement to be satisfied of the consistency with the secondary objectives of the 2(f) Tourism zone in cl8 (1) (a) and (b) these objectives must be considered.
After such consideration I am of the opinion that the secondary objectives are supportive of this development and its residential component in that it identifies the objective of 2 (f) Tourism zone as being "to permit high quality residential development". The objective identifies this as being integral and supportive of the primary intent of the zone provided it is at a scale that enhances the tourist resort character. The modest scale residential component in this case does enhance the tourist resort character of the overall SALT development. It intermingles a residential component within an existing boathouse tourist facility and at a broader level adds another small scale dwelling to the SALT village. The area of the whole development is 151m2 and on the Applicant's calculation less than 40% of the area is occupied by the residential use. The SEE for the DA 2005 anticipated a boathouse with an office and staff amenities at 150m2 (p2 Tab 35 Bundle). The SEE anticipated that one employee would be present 7 days per week all year round. The consent to this DA ensures the continued commercial use and a modest residential component.
Having determined that the DA is not in respect of the land zoned RE1 on Lot 221 I do not need to deal with contentions 3.3 concerning the objectives to that zone in the 2014 TLEP. In any case it is my opinion on the evidence that the development is consistent with them as it will not compromise the ability of Lot 221 to be used as public open space for recreational purposes. As stated there is no evidence of an increase in vehicle use of that land by this development. Vehicle access across community land is not contrary to the provisions in s47 D of the LGA: Saad at [56]-[58].

Lindstro Pty Ltd v Tweed Shire Council

At a glance

Court

Decision date

Source

Judgment (29 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (6)