Lonergan v Byron Shire Council

CHRISTOPHER RAYMOND LONERGAN Applicant v BYRON SHIRE COUNCIL Respondent

This is an appeal under s 56A of the Land and Environment Court Act 1979 brought by Mr C R Lonergan against the decision of Commissioner Bly. The Commissioner dismissed an appeal against the refusal of Byron Shire Council to grant development consent for the use of certain structures as "beach amenities" on land at The Esplanade, New Brighton.

An appeal under s 56A is confined to an error of law. The grounds of appeal as finally formulated are as follows:

(1) The Commissioner erred in law by asking himself the wrong question, being which of "dwelling" and "beach amenities" was the more likely category. (2) The Commissioner erred in law by treating "beach amenities" and "dwelling" as mutually exclusive categories of land use. (3) The Commissioner erred in law by not finding, on the primary facts found by him and on the proper construction of the Byron Local Environmental Plan 1988, that the development was "beach amenities" and therefore development permissible with consent. (4) The Commissioner erred in law by misconstruing the term "dwelling" in the Model Provisions by finding that a structure which could be adapted or modified for permanent occupation was a "dwelling"; (5) The Commissioner erred in law by not finding, on the primary facts found by him, that: (i) The structures were not or did not contain a room or rooms; (ii) The structures were not dwelling houses because they did not have walls.

For the purpose of this s 56A appeal, the relevant facts are as follows. A development application was made by Mr Lonergan for consent to use certain structures as "beach amenities". The land upon which the structures are erected ("the site") is within zone No 7(f1) (Coastal Land Zone) under the Byron Local Environmental Plan 1988 ("the LEP"). Under the zoning table, a number of specified purposes are listed as being permissible with consent. All other purposes are prohibited. One of the specified purposes permissible with consent is "beach amenities".

The Commissioner noted (on p 2 and p 3) five issues as arising in the case, only the first of which is presently relevant and which he formulated as being "whether the proposal comprises "beach amenities" or a "dwelling house" ". On p 3 of his judgment, he commenced his discussion of the first issue and referred to it as follows: Beginning with the first issue, this essentially involves the question of whether the proposal comprises a "beach amenities" or a "dwelling house" . Pursuant to the 7(f1) zone in the LEP, the former are permissible and the latter is prohibited.

After making findings of fact as to what was involved in the proposed development, and discussing the ordinary meaning of "amenity", the Commissioner concluded, at p 5, that "the structure and facilities which presently exist on this site could be categorised as beach amenities". He continued, again on p 5, by stating that "[t]his brings me to the question of whether or not the use of the structures and facilities on the site also comprise a "dwelling house" in terms of the provisions of the LEP".

The Commissioner referred to the definition of "dwelling house" in terms of the LEP. That expression is defined in cl 5 of the LEP to mean "… a building or buildings containing one but not more than one dwelling". The expression "dwelling" is not defined in the LEP but the LEP adopts the Environmental Planning and Assessment Model Provisions 1980 ("the Model Provisions") in which "dwelling" is defined to mean "… a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile". Applying these definitions to the facts which he found, the Commissioner at p 7 concluded that "… the existing structures and facilities comprise a "dwelling house" ". Having reached that conclusion, he then asked himself which of the characterisations, "beach amenities" or "dwelling house" should prevail, and he stated, on p 8, that "I propose to decide this question on the basis of which of the two categorisations is more likely given the nature of the use and the existing structures and facilities". He concluded, again at p 8, that the proposal should be categorised as a "dwelling house" and that it was accordingly a prohibited purpose.

The case put by Mr Robertson for the applicant may be shortly stated as follows:

(a) On no view of the facts could either of the structures on the site constitute a "room" within the meaning of "dwelling" in the Model Provisions, and a decision to the contrary was not reasonably open and that constitutes an error of law; (b) The Commissioner in any event misconstrued the definition of "dwelling" in the Model Provisions by finding that a structure could be a "dwelling" if it could be adapted by improving or adding to it for residential use. That constitutes an error of law; (c) The Commissioner defined otherwise than in accordance with the law the question that he was required to answer. He defined that question as to whether the proposed use was "beach amenities" or a "dwelling house". Rather, the question was simply whether or not the proposed use was "beach amenities".

Mr Clay, for the council, submitted that the question before the Commissioner was simply one of characterisation of a use, and that involved a factual determination in relation to words ("dwelling house" and "beach amenities") which bear their ordinary and natural meaning. This was a factual exercise for the Commissioner alone to determine, and no error of law is disclosed.

In Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156, Glass JA formulated tests for establishing an error of law in a well-known passage as follows: A finding of fact … may nevertheless reveal an error of law where it appears that the trial judge has misdirected himself ie has defined otherwise than in accordance with law the question of fact which he has to answer …. Further an ultimate finding of fact, even in the absence of a misdirection, may reveal error of law if the primary facts found are necessarily within or outside a statutory description and a contrary decision has been made. 10. I have concluded, applying the first test outlined by Glass JA, that the Commissioner erred in law. He defined otherwise than in accordance with law the question which he had to answer. The first question posed in these proceedings was whether or not the purpose for which the site was to be used was permissible with consent. Put another way, the question was whether or not the proposed use could be properly characterised as "beach amenities". However, that is not the question which the Commissioner asked himself. Rather, he asked himself whether the proposed use could be properly characterised as "beach amenities" or as a "dwelling house". Whether or not the proposed use could be properly characterised as a "dwelling house" was irrelevant. If the proposed use could not be properly characterised as "beach amenities" then it was prohibited whatever its proper characterisation. It was not correct to regard the question for determination as requiring a choice between "beach amenities" or "dwelling house', it was simply whether or not the proposed use was "beach amenities".

I have considered whether the conclusion I have reached adopts a too literal approach to the reasoning of the Commissioner as a lay person. After all, his final finding of fact was that the proposed use of the structures on the site was as a "dwelling house" and the consequence of such a finding must be that the proposed use was not "beach amenities" and was therefore prohibited. But the Commissioner reached a decision that the proposed use was prohibited, not because it failed to meet the appropriate description in the list of permissible uses, but because it was a "dwelling house". That demonstrates the Commissioner's misdirection to himself, and it infected the whole of the Commissioner's reasoning. Having posed the question for determination as being whether the proposed use was "beach amenities" or "dwelling house", he proceeded to determine that the proposed use could be "beach amenities". But since he considered that he was dealing with two separate categories, he did not stop there, but went on to determine that the proposed use could also be a "dwelling house", and that it was, on the facts, "more likely" to be a "dwelling house".

It is important to bear in mind that the zoning table does not, as Mr Robertson pointed out, specify two mutually exclusive purposes, one of which is permissible and the other prohibited. Rather, it nominates those purposes which are permissible, and any purpose not so nominated falls into an innominate class of prohibited purposes. That is why the proper question for determination was simply whether or not the proposed use fell within a nominated purpose.

The conclusion I have come to is similar to the conclusion reached by the former Chief Judge, Cripps J, in Doyle v Newcastle City Council (1990) 71 LGRA 55. There the proposal was to use half of a domestic garage as a pigeon loft in pursuit of the hobby of one of the occupants of the dwelling. The relevant zoning table in that case (being cl 12 of the relevant planning instrument) was similar to that under consideration here. Use for the purpose of dwelling house was permissible without consent, and a number of nominated purposes were specified as being permissible with consent, whilst all other purposes of an innominate class were prohibited. The assessor had found that the purpose of a pigeon loft was not ancillary to the dwelling house use, and that the proposed use was prohibited because it fell within the definition of "agriculture" under the relevant instrument.

At p 60, his Honour said: Thereafter, in my opinion, the assessor … asked the wrong question. The question should have been: is the proposed activity one of the permissible uses referred to in cl 12 and not: does the proposed activity come within the definition of "agriculture" . It must be remembered that it is innominate uses that are prohibited being those which are not nominated as permissible in cl 12. As I have said the word "agriculture" is not mentioned in cl 12.

The conclusion I have reached establishes in the applicant's favour the first two grounds raised in this appeal, and it becomes strictly unnecessary to deal with the remaining grounds of appeal. However, they were fully argued, and it is appropriate that I express an opinion in regard to them.

This is not a case, in my opinion, where the facts as found necessarily fall within the description of "beach amenities" so that a contrary conclusion would constitute an error of law (I am referring to the third ground of appeal and to the second test formulated by Glass JA in the passage I have previously quoted from Azzopardi v Tasman UEB Industries at p 156). The expression "beach amenities" is an expression of ordinary speech, and minds might reasonably differ as to whether or not the proposed use of the site is encompassed by that expression. Since different conclusions on that question are reasonably possible, the decision as to which is the correct conclusion is one of fact, which is solely within the province of the Commissioner and does not involve a question of law. For this reason, I conclude that the applicant has not established the third ground of appeal.

Nor do I think that the fourth and fifth grounds of appeal have been made out by the applicant. Those grounds relate, as can be seen, to the Commissioner's application of the definition of "dwelling" to the facts in this case, and, for the reasons which I have outlined, that question is irrelevant.

However, as to the fourth ground of appeal, I conclude that the Commissioner did not misconstrue the term "dwelling" in the Model Provisions by finding that a structure which could be adapted or modified for permanent occupation was a "dwelling". The Commissioner found, at p 6, that the existing structures on the site were "… capable of being occupied or used on a permanent basis for residential accommodation". He was referring to the existing structures and was not referring to any adaptations or modifications which could render the structure capable of being so occupied or used. He went on (at pp 6 - 7) to mention modifications which could be made to the structures but only in the context that the existing structures might not be "entirely acceptable" to many people and might for that purpose be "improved".

As to the fifth ground of appeal, my conclusion is similar to that regarding the third ground of appeal. The definition of "dwelling" in the Model Provisions refers to "a room or a suite of rooms" and they are words of ordinary expression. Whether the facts of this case fall within that expression as a matter of common understanding is a question of fact ( Londish v Knox Grammar School and Ors (1997) 97 LGERA 1 at 7). Minds might reasonably differ as to whether the proposed use is encompassed by the definition of "dwelling" in the Model Provisions. Whether or not the proposed use is so encompassed was a question of fact for the Commissioner and does not reveal an error of law.

In summary, the applicant has established the first two grounds of appeal, and accordingly, the decision of the Commissioner must be set aside. I therefore make the following orders:

(1) The appeal is upheld. (2) The determination of the Commissioner made on 8 April 1999 is set aside. (3) The proceedings are remitted to the Commissioner for determination in accordance with this judgment. (4) The proceedings should be listed for callover as soon as convenient so that a date for further hearing may be fixed. (5) The council must pay the costs of the applicant of this s 56A appeal, as agreed or as assessed. (6) The exhibits must remain on the file pending further determination of the proceedings.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

16. This is not a case, in my opinion, where the facts as found necessarily fall within the description of "beach amenities" so that a contrary conclusion would constitute an error of law (I am referring to the third ground of appeal and to the second test formulated by Glass JA in the passage I have previously quoted from Azzopardi v Tasman UEB Industries at p 156). The expression "beach amenities" is an expression of ordinary speech, and minds might reasonably differ as to whether or not the proposed use of the site is encompassed by that expression. Since different conclusions on that question are reasonably possible, the decision as to which is the correct conclusion is one of fact, which is solely within the province of the Commissioner and does not involve a question of law. For this reason, I conclude that the applicant has not established the third ground of appeal.

17. Nor do I think that the fourth and fifth grounds of appeal have been made out by the applicant. Those grounds relate, as can be seen, to the Commissioner's application of the definition of "dwelling" to the facts in this case, and, for the reasons which I have outlined, that question is irrelevant.

18. However, as to the fourth ground of appeal, I conclude that the Commissioner did not misconstrue the term "dwelling" in the Model Provisions by finding that a structure which could be adapted or modified for permanent occupation was a "dwelling". The Commissioner found, at p 6, that the existing structures on the site were "... capable of being occupied or used on a permanent basis for residential accommodation". He was referring to the existing structures and was not referring to any adaptations or modifications which could render the structure capable of being so occupied or used. He went on (at pp 6 - 7) to mention modifications which could be made to the structures but only in the context that the existing structures might not be "entirely acceptable" to many people and might for that purpose be "improved".

19. As to the fifth ground of appeal, my conclusion is similar to that regarding the third ground of appeal. The definition of "dwelling" in the Model Provisions refers to "a room or a suite of rooms" and they are words of ordinary expression. Whether the facts of this case fall within that expression as a matter of common understanding is a question of fact (Londish v Knox Grammar School and Ors (1997) 97 LGERA 1 at 7). Minds might reasonably differ as to whether the proposed use is encompassed by the definition of "dwelling" in the Model Provisions. Whether or not the proposed use is so encompassed was a question of fact for the Commissioner and does not reveal an error of law.

20. In summary, the applicant has established the first two grounds of appeal, and accordingly, the decision of the Commissioner must be set aside. I therefore make the following orders:

(2) The determination of the Commissioner made on 8 April 1999 is set aside.

(3) The proceedings are remitted to the Commissioner for determination in accordance with this judgment.

(4) The proceedings should be listed for callover as soon as convenient so that a date for further hearing may be fixed.

(5) The council must pay the costs of the applicant of this s 56A appeal, as agreed or as assessed.

(6) The exhibits must remain on the file pending further determination of the proceedings.