Long v Hornsby Shire Council

Land and Environment Court (NSW)|2006-12-12|Before: Mr P

The application of Section 94 contributions to caravan parks is governed by Sections 1.4.3 of the Contributions Plans. Under these sections, Council exercises discretion as to whether or not contributions may be levied against certain developments. 38 In relation to the demand for services, Mr Ouma-Machio stated that when the caravan park closed it was licensed for 98 long term sites, however, the number of long term residents is unknown and there is no assessment of the impact of residents on local services. He stated that:

a reasonable assumption would be that the residents of the park would have placed limited demands on Council's services and facilities and that the new and more permanent residents would increase the demand for services and facilities. 39 Mr Ouma-Machio referred to the decision of Hoffman C in Jefferson M Robinson & Associates Pty Ltd v Sutherland Shire Council v Sutherland Shire Council (2004) NSWLEC 261 which supported this opinion.

The council's submissions 49 Mr Jackson accepts that cl 2.7 of the Contributions Plan makes allowances/credits for existing development in circumstances set out in the clause. He submits that to understand the meaning of the clause it should not be looked at in isolation but in the context of the Contributions Plan as a whole within the regime of the EPA Act. In Mr Jackson's submission it is not appropriate to rely on licences or provisions of the LG Act to reach a conclusion that the structure on the site are "other dwellings" within the meaning of LEP 1994 and the Contributions Plan. The heading and content of cl 2.7 refers to "existing development", "development" in Mr Jackson's submission relates to the use of the land not to the "structures" erected on it. 50 The legislative regime under the LG Act and the EPA Act are different. In Mr Jackson's submission the approved development on the site is that approved under the EPA Act and is properly categorised as a "camp or caravan site" not a "dwelling" or "dwelling house". If the applicant's submission is accepted other different uses on the site, such the administration building could arguably also attract a credit. It is not appropriate to separately define each use on the site but to define the totality of the use, which is a caravan park on five allotments. 51 There is no credit or allowance given in respect of camp or caravan parks under cl 2.7. Council has allowed credits for existing allotments on the site for each application (a total of eight credits equating to about $100,000). 52 In Mr Jackson's submission a reference to "other dwellings" means "Medium/High Density Multi Unit Housing" as set out in the schedule of contribution rates at A5 of the Contributions Plan. The schedule of rates makes no reference to a rate for a "camp or caravan site" and in such circumstances, the council has a discretion whether to levy a contribution pursuant to cl 1.4.3 of the Contributions Plan when development of land is for a "camp or caravan site". 53 Mr Jackson noted that no contribution had been levied for the caravan park on the site as it was approved prior to EPA Act. Nor had a levy been applied to the long term dwellings on the site as no development consent was required. 54 Further, Mr Jackson submitted that such an interpretation of cl 2.7 would lead to the "absurd result that no s 94 contributions would be paid [nor have any been paid for previous development]". 55 Under cl 2.7 of the Contributions Plan council has given credits for previous allotments on the site. If the Court finds that under cl 2.7 the category of existing or approved development is "other dwellings" the council submits that the evidence does not support a credit for the number of "other dwellings" ie 205 persons. Findings 56 Because of the dispute over the meaning of "other dwellings" in the Contributions Plan, the judgement of Cripps J in Hecar Investments No. 6 Pty Ltd v Lake Macquarie Municipal Council 53 LGRA 322 is helpful where he states (at 323): I adopt, with respect, the observation of Lord Reid in Gill v Donald Humberstone & Co Ltd [1963] 1 WLR 929 at 923, 924 that when interpreting delegated legislation, the court ought be concerned with practical considerations rather than construing it by meticulous comparison of the language of the various provisions such as might be appropriate in construing sections of an Act of Parliament and that if that language is capable of more than one interpretation, a court ought discard the more natural meaning if it leads to an unreasonable result, and adopt that interpretation which leads to a reasonably practical result . 57 In balancing the evidence and submissions from the parties, I accept the conclusions reached by the council for number of reasons. Part A1 identifies the primary purpose of the Contributions Plan as enabling the council "to require a contribution towards the provision, extension augmentation of public amenities and public services that will, or are likely to be required, as a consequence of development in the Shire of Hornsby local government area". A reference to "development" must be a reference to those land uses identified in LEP 1994 as development may only occur in accordance with LEP 1994. The Contributions Plan is clearly a document that relies on and is supported by the provisions of LEP 1994. 58 Existing development on a site may have been approved prior to LEP 1994 or with no requirement for development approval. Nonetheless, it is appropriate for the purpose of cl 2.7 to categorise an existing development in accordance with the definitions that exist within LEP 1994. In these appeals this task is simplified as a development consent was granted in 1972 for the use of the site as a caravan park. This is the approved and existing development on the site. LEP 2004 includes the following definition:

"camp or caravan site" means a site used for the purpose of: (a) placing moveable dwellings (within the meaning of the Local Government Act 1993) for permanent accommodation or for the temporary accommodation of tourists, or (b) the erection, assembly or placement of cabins for the temporary accommodation of tourists. 59 This definition specifically allows the use of a caravan site for placing movable dwellings (within the meaning of the Local Government Act 1993) for permanent accommodation. The definition of moveable dwelling in the LG Act includes a range of accommodation, including tents, caravans and manufactured homes. I do not accept that a "moveable dwelling" under the LG Act equates to a "dwelling" in LEP 1994, particularly as no subsequent development consent for the "movable dwellings" on the site was required under the EPA Act. I accept Mr Jackson's submission that there is a different legislative regime for "dwellings" which form part of a caravan park and that it is not appropriate to apply this regime to interpret cl 2.7. I note that the definition of "movable dwelling" in the LG Act referred to in the definition of "camp or caravan site" in LEP 1994 is different to the definition of a "movable dwelling" in LEP 1994. 60 The definition of "dwelling" in LEP 1994 does not include any requirement for long term or permanent habitation. The applicant's submission would therefore arguable include as "other dwellings" structures on short term sites provided they are capable of occupation as a separate domicile. 61 Although the issue is not without some doubt, I am satisfied that a practical and reasonable reading of the Contributions Plan supports the council's argument that a reference to "other dwellings" does not include a "movable dwelling" installed as part of a caravan park. I accept that in examining the aims and structure of the Contributions Plan the practical and reasonable meaning of "other dwellings" is "Medium/High Density Multi Unit Housing" as set out in the schedule of contribution rates at A5 of the Contributions Plan. It is appropriate that if there is a levy for new residential development there should also be a credit for that type of existing residential development. A5 does not require a contribution for caravan parks and as a "movable dwelling" does not require development consent no s94 contribution can be levied. 62 Cl 1.4.3 allows other uses which generate a demand for services not listed in A5 to be levied at the discretion of council. No s94 contribution has been levied for the site. It is not clear whether cl 2.7 would permit the same discretion for credits. It would appear consistent with the overall purpose of the plan and the wording of cl 2.7 if such discretion were permitted to ensure that a contribution is only levied for development that generates an increased demand for services. However, the wording of cl 2.7 is ambiguous in this respect and it is not a matter that I am asked to adjudicate upon as the applicant is only seeking a credit on the basis of the definition of "other dwellings'' not on the exercise of discretion based on the likely demand for services. 63 In not accepting the applicant's submission I am mindful that the applicant's interpretation of cl 2.7 would result in no contribution being paid for the subdivision applications. I accept that the existing "dwellings" would provide permanent accommodation for a number of people which would have utilised services in the area. However, there is no evidence to support the contention that this would be greater than the demand generated from the proposed developments of the site for permanent accommodation sufficient to justify no s 94 contribution being paid. 64 The applicant's case relied on the interpretation of cl 2.7 and the number of "dwellings" on the site rather than the demand likely to be generated. While the evidence is clear that in April 2000 there were about 98 "dwellings" on the site there is no evidence that these were all capable of being occupied or used as a separate domicile. The 2003 approval includes 98 long term residence sites of which 72 are for self contained dwellings and 7 have ensuite facilities. It would appear that the other 19 rely on communal facilities and are therefore, not even on the applicant's submission, "dwellings" as defined under LEP1994. 65 Even if it is accepted that there are 98 self contained dwellings, no conclusion can be drawn from the evidence as to the occupancy of these dwellings, the permanency of residents or their demand for services. While it is a simple exercise to apply an occupancy rate to the number of dwellings, this rate should be based on a realistic occupancy. I do not accept that an occupancy of 205 people is appropriate. This is based on a rate of 2.1 persons per dwelling which Mr Minto states is averaging a population based upon development types rather than an assessment of the exact population at a given time. While this would be an appropriate average rate for Medium/High Density Multi Unit Housing it would appear not to reflect an average occupancy rate for "movable dwellings" given the size of the dwelling. The rate of 1.5 persons for SEPP 5/Seniors Living may be more applicable. 66 Further the SEE which accompanied DA 2228/03 stated that:

The caravan park up until the 30th October 2003 comprised of two hundred and eight (208) sites including:

Permanent sites - cabins 98 Tourist sites - onsite vans & cabins 50 Vacant tourist sites - campervan, tents 60

Permanent sites were those where leases were arranged for stays in excess of 30 days. Of the 98 permanent sites, 18 were relocatable homes occupied by the lessees, 17 were owned by the caravan park and leased. The remainder of the sites were unoccupied. 67 An occupancy of 2.1 persons would equate to about 73 people, however, the Mayoral Minute of 19 March 2003 refers to a population of 34 permanent residents. While these populations are not verified and may have been greater at other periods there is nothing to suggest that there was consistently a permanent population of 205 residents who utilised services in the area. This certainly was not addressed in the report to Council of 17 March 2004 in relation to DA 2228/03. The report discussed the social impact of the closure of the caravan park but I presume this assessment was based on the statements in the SEE which provided no indication of the removal of permanent accommodation for potentially 205 people. The displacement of such accommodation would have been a significant issue to be assessed in the determination of the original application. 68 Although, not raised in the hearing, it would appear that even if I accepted the applicant's interpretation of cl 2.7 this would permit a credit for "other dwellings" only for DA 2228/03, which once consent was granted, for the purpose of cl 2.7 would then be the "approved development". For the subsequent applications the credit would be based on this approved development, being the number of allotments in the approved subdivision. This is consistent with council's determination of these applications.

Orders 69 For the above reasons the Orders of the Court are:

The applications under s 96(1) of the Environmental Planning and Assessment Act 1979 that seek to modify condition 105 of DA 2228/03 (Appeal No 10799 of 2004), condition 33 of DA 1150/04 (Appeal No 11553 of 2004) and condition 62 of DA 957/05 (Appeal 10800/2006) that require the payment of contributions under s 94 of the Environmental Planning and Assessment Act 1979 for subdivision of land at 901 - 903 Pacific Highway, Berowra, are refused.

The exhibits, except Exhibits 1, 2, 3, 4, 5 and 6, may be returned.

      Annelise Tuor
      Commissioner of the Court

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.

CITATION : Long v Hornsby Shire Council [2007] NSWLEC 267

Jefferson M Robinson & Associates Pty Ltd v Sutherland Shire Council [2004] NSWLEC 261; CASES CITED: Masterbuilt Pty Ltd v Hornsby Shire Council [2005] NSWLEC 212; Hecar Investments No. 6 Pty Ltd v Lake Macquarie Municipal Council 53 LGRA 322

JUDGMENT 1 COMMISSIONER: These are three separate, but related appeals against the deemed refusal by Hornsby Shire Council (the council) of applications under s 96(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) that seek to modify a condition of each consent that requires the payment of contributions under s 94 of the EPA Act for the subdivision of land at lot 100 DP 1034450, lots 59, 60, 639 and 912 DP 752053 known as 901 - 903 Pacific Highway, Berowra (the site). The proposal 2 The site has an area of 6.4ha and consists of five lots which were used as a caravan park until October 2003. The s 96 applications relate to the consents for the following development applications: · DA 2228/03 - the subdivision of five existing lots to provide for 33 community title lots. The application was approved by council on 17 March 2004. Condition 105 required a contribution of $338,923 for 29 lots at a rate $11,687 per lot (including a credit for four existing lots). The contribution has been paid. · DA 1150/04 - the construction of two dwellings and the community title subdivision of approved lot 32 into two lots (a total of 34 lots). The application was approved by the Court on 18 May 2005 (Masterbuilt Pty Ltd v Hornsby Shire Council [2005] NSWLEC 212). Condition 33 required a contribution of $12,858 for the additional lot (including a credit for one existing lot). The contribution is outstanding. · DA 957/05 - the subdivision of approved lots 30, 31 and 33 into 29 community title lots (a total of 60 lots). The application was approved by council on 19 October 2005. Condition 62 required a contribution of $342,687 for 26 lots at a rate $13,180 per lot (including a credit for three existing lots). The contribution has been paid. 3 The separate applications under s 96(1) of the EPA Act seek to modify the condition of each consent requiring a contribution under s 94 of the EPA Act. Each modification would result in a nil contribution. The conditions in dispute are:

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Judgment (13 paragraphs)

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