Madsen v Baulkham Hills Shire Council

CASES CITED: Blackington Pty Limited v Tweed Shire Council [2006] NSWLEC 158

DATES OF HEARING: 11, 12 and 13 September 2006

APPLICANT Ms S Duggan, barrister INSTRUCTED BY Mr H Robilliard, solicitor Robilliard Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr A Galasso, barrister INSTRUCTED BY Mr M Pearce, solicitor Baulkham Hills Shire Council

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

20312 of 2006 Benny Madsen v Baulkham Hills Shire Council

JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

COMMISSIONER: This is an appeal pursuant to s 176 of the Local Government Act 1993 (the Act) against the deemed refusal by Baulkham Hills Shire Council (the council) of an application pursuant to s 68 of the Act to erect two two-storey cabins at the Ko Veda Holiday Caravan Park at Wiseman's Ferry (the caravan park). The caravan park was granted devlopment consent, No: 2430/03 (the development consent), for the relocation to the caravan park of a number of a number of sites, including the sites which are the subject of this appeal, from the property upon which they were formerly located.

The caravan park is a comparatively level property (at the point where these sites are located) with an immediate frontage to the Hawkesbury River. It is adjacent to and to the south of the existing developed element of the caravan park. The existing developed element of the caravan park has a number of single storey cabins erected upon it.

The development application for the relocation of the sites was accompanied by an Environmental Impact Statement in two volumes and including a number of plans annexed to and forming part of that environmental impact statement.

As part of the council's consideration of that application, the council wrote on 28 March 2003, to Mr Bardsley-Smith, the director of the applicant's town planning consultants, seeking further information on a number of listed issues. That information was provided, with a number of attachments (including schematics and conceptual plans), in a letter dated 8 April 2003 from Mr Bardsley-Smith to the General Manager of the council.

On 2 August 2003, the council granted the development consent, subject to conditions. The relevant condition that I need consider in this appeal is Condition 1. It is headed "Development in accordance with submitted plans" and it reads: "The development being carried out substantially in accordance with development application number 2430/03HE and accompanying environmental impact statement (EIS) prepared by Integrated Site Design dated June 2002 and also supplementary and additional information received by Council except where amended by the following conditions of consent.

The approval allows the relocation of 47 short term sites from Lot 5 DP729341 and Lot 1 DP783552 to lot D. The Ko Veda holiday park is restricted to a total of 112 short term sites, 10 long term sites and 20 camping sites. A separate application is to be lodged and approved by council for any alterations and/or expansion to the approved proposal." 6. It is agreed between the parties that the supplementary and additional material mentioned in Condition 1 includes the correspondence of 8 April from Mr Bardsley-Smith to the council in response to the council's 28 March inquiry.

7. The question that is involved, it being conceded by the applicant that the materials contained in those documents were provided to the council and were considered by the council, is to what extent, if any, were what are described as the typical details of a cabin imported into the development consent.

8. The reasons for that arise out of a consideration of the provisions of State Environmental Planning Policy 21 - Caravan Parks (SEPP 21) and the provisions of a number of regulations in the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005 (the regulations).

9. With respect to SEPP 21, the provisions of cl 8(4A) read as follows: "Except as provided by subclause (4), nothing in this policy or any other environmental planning instrument requires separate development consent to be obtained for the installation or placement of a movable dwelling on land which development for the purposes of a caravan park is being lawfully carried out."
10. Whether or not the approval of the s 68 application would result in an activity which was lawfully being carried out consistent with the development consent is the crux of these proceedings as to permissibility.

11. The provisions of the regulations contain, in Part 3, Caravan Parks and Camping Grounds and Movable Dwellings, a number of subdivisions. Subdivision 2 is intituled "Installation of movable dwellings and associated structures in caravan parks and camping grounds" and comprises regs 74, 75 and 76 - reg 76 being that which enlivens a discretion in the consent authority to consider matters of impact and amenity on adjacent sites and on occupiers of land adjoining the caravan park or camping ground.

12. Subdivision 3 is intituled "Installation of movable dwellings elsewhere than in caravan parks or camping grounds." It commences with reg 77 and the next division in the regulations, Division 3, commences at reg 83.

13. Critical to my consideration of the importation of a requirement for consistency (prior to considering the terms of what might be imported by the development consent) is whether or not the provisions of reg 80 effectively permit me to consider those matters.

14. Reg 80 reads, "In considering an application for approval to install a movable dwelling or associated structure on any land, the council must take the following matters into consideration, (a) whether any development consent required under the Environmental Planning and Assessment Act 1979 for the installation of the movable dwelling or associated structure on the land has been given, "

and then (b) which is presently irrelevant. 15. Ms Duggan, barrister for the applicant, urges on me, as a proposition flowing from the provisions of s 35 of the Interpretation Act 1987, that not only should I regard the heading of Subdivision 3 as being part of the instrument to be considered but that it has the effect of limiting all of the provisions of the regulations which follow to the end of Division 2 as applying only to the installation of movable dwellings elsewhere than in caravan parks or camping grounds.

16. Mr Galasso, barrister for the council, draws my attention to the fact that regs 81 and 82 both include an exception which limits their activities or application to land other than in a caravan park or camping ground, and that reg 80 is expressed as applying to any land.

17. He takes me to a paragraph of a decision of Jagot J in Blackington Pty Limited v Tweed Shire Council [2006] NSWLEC 158 where, at para 107, Her Honour says: "Having regard to cl 80 of the 2005 regulation, I consider that it would be inappropriate to grant approval to an application under the Local Government Act in circumstances where I am not satisfied that the approval would accord with the requirement of the development consents applying to the land."
18. I am satisfied that adequately expresses the discretion that it would be appropriate for me to consider exercising, in broad terms (and be, perhaps, guided by Her Honour's comments) once I have determined whether or not I ought have regard to the terms of the development consent and whether or not the requirements for the typical cabin are imported into it.

On the first issue, I am satisfied that any logical consideration of the regulations makes it clear that, between reg 78 and reg 79, there is an expressly implied transition that necessarily follows from the structure of the regulations.

Reg 79 sets out the nature of the plans that must be provided for any application for approval to install a movable dwelling. The word "any" is not there. It is an application for approval but it clearly applies, I am satisfied, to any application because there is no other provision in the regulations (or anywhere else that the parties are able to take me to) that provides for any provision of plans to the council for such installations on caravan parks or at camping grounds (if reg 79 did not have universal applicability to any such application).

I am satisfied that that transition makes it appropriate to regard the words "on any land" in reg 80 as having their normal and natural meaning and not meaning any land with the implied importation of the words "elsewhere than in a caravan park or camping ground."

I am therefore satisfied that I am obliged to have regard to the provisions of the development consent and the lawfulness of the proposed activity pursuant to cl 8(4A) of SEPP 21.

That takes me to the provision of the material in the Environmental Impact Statement and the extent to which anything contained in it or the supplementary material imports a restriction on the structures to be erected.

The cabins which are proposed to be erected by this application are two-storey cabins with associated carports. There are two of them at sites 31 and 32 in the staged development.

The question of the staging of the development does not arise for consideration at this point in my determination but is a matter that subsequently requires to be dealt with.

The Environmental Impact Statement includes a number of references to what is proposed.

On p (viii) of the executive summary it says, inter alia: "Accordingly, details of the typical cabin forms and sitings are provided together with this application." 28. Further into the Environmental Impact Statement, it says, on p 17: "Given the intention to place relocatable homes of known dimensions on the site, a standard site size with standard proportions is proposed." 29. It then adverts to the regulations. That site size conforms with what is proposed in this application.

30. On p 18 comes the first detailed mention, in the body of the Environmental Impact Statement, of typical cabin design. It says: "It is intended to place relocatable homes or cabins of known design and proportions [emphasis added] on each of the sites. The cabins incorporate a covered deck area which is oriented to face the river. A photograph of a typical cabin is included in this submission."
31. That photograph appears on p 19 and is clearly a single storey structure. The descriptor of the photograph is "Photograph of an existing relocatable home (cabin) currently located at Ko Veda Holiday Park which is similar to those proposed for installation on the relocated sites". That is, it is a photograph, referring back to p 18, of a cabin of known design and proportions.

Then, relevantly, a number of matters appear in the EIS relating to staging, vegetation and the like.

There are a number of other places, forming part of the documentation that was considered by the council and which is swept up by cl 1 of the conditions of consent, which provide information about the typical cabin.

The first of those is the final attachment to Mr Bardsley-Smith's letter of 8 April 2003. This is a depiction, including elevations, of a cabin. It was drawn by the Aegean Group Pty Limited and is a plan dated 8 June 2001. It shows four elevations and a cross section of what is clearly a single storey cabin.

The next place, in addition to that plan, where what the council submits a typical cabinis shown, is on sheet 2 of the Ko Veda Holiday Park Typical Landscape Detail by John McIntyre and Associates dated February 2002 where there are two elevations shown for two separate sections depicting different vegetation types in the riparian zone. Each of those cabins depicted is clearly a single storey cabin.

The next document is a Wall Bracing Detail Plan by Kneebone Beretta and Hall Pty Limited, consulting structural and civil engineers, drawing number 68695-2, issue C of 1 May 2002, which also clearly shows a single storey cabin.

Finally, there is a series of photomontages dealing with screening by vegetation plantings which are prepared by Haycraft Duloy. Here it is clear, from a photomontage intituled "Two year tree growth with cabins and pontoons", that the ridge height of the cabins depicted on the southern section of the caravan park is, to all intents and purposes for this appeal, identical to the ridge height of those cabins able to be observed as existing in the portion of the caravan park to the north.

Each of those documents, I am satisfied, must lead me to the conclusion as a matter of fact that the terms of Condition 1 of the development consent was given solely on the basis of a typical cabin of the nature to be derived from all of those elemental sources to which I have referred.

I am therefore satisfied that, having regard to the provisions of cl 8(4A) of SEPP 21, it would not be lawful activity for the erection of a two storey cabin at the locations proposed.

That, however, is not the end of matters in this appeal.

Ms Duggan draws my attention to the ability of the Court to consider the merits of the appeal and the question of whether or not, having considered those merits, I ought grant a deferred s 68 approval in order to permit the applicant to apply to the council to modify the development consent pursuant to s 96 of the Environmental Planning and Assessment Act 1979.

In considering that, I return to the comments by Jagot J in Blackington.

The questions that arise for my consideration are: - should I exercise that discretion and consider the merits of the application? or - should I consider the merits of the application so on the basis I may wrong about the effect of the provisions of reg 80 and cl 8(4A) of SEPP 21? 44. I am satisfied that it would not be appropriate for me to do either.

I have reached that conclusion on a very narrow basis. The provisions of the Environmental Impact Statement show, on p 25, a staging proposal for implementation of the development.

I am being asked to assess the acceptability of what I am satisfied is a significant or potentially significant variation on the impact when viewed from the river. It is for two sites that would only have cabins erected on them at Stage 3 of the development application.

I am not asked to consider (nor is it appropriate that I speculate on what might be) the impact of a two-storey cabin erected at the first site where cabins are to be installed. I am being asked to consider the question of the erection of two two-storey cabins in the centre of the proposed development.

The question of precedent was not specifically raised by the respondent in its Statement of Issues and I am not prepared to speculate on whether or not any approval I might otherwise consider appropriate would act as a precedent.

I am, however, satisfied that it would be appropriate to require a modification application for the development consent to be taken to the council in the first instance.

I do so, first, because I am not satisfied that a s 68 approval would accord with the requirements of the development consent. Indeed, I am satisfied to the contrary.

Second, I am satisfied that, as a matter of discretion, it would be premature for me to consider, on the more narrow compass available for consideration of my discretion pursuant to reg 76, the question of these proposed two-storey cabins when, on a s 96 modification application to the council, arguably broader matters of consideration arise pursuant to s 79C of the Environmental Planning and Assessment Act 1979.

I am satisfied that if I were to deal with the matter on the basis of considering the merits, that is expressing any opinion on the merits, and if I were otherwise to find it acceptable in some form or another (and I have no doubt that, given the way the proceedings have been conducted, it would have been possible for me to reach a determination on the specific merits of these two cabins in isolation), then that would have had the effect of pre-determining the s 96 application to the council, and as a matter of discretion I am satisfied that I ought not do so.

The result is that the appeal will be dismissed and the exhibits will be returned.

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.