Meriton Apartments Pty Limited v Fairfield City Council - [2004] NSWLEC 423 - NSWLEC 2004 case summary — Zoe

NSWNSWLEC

Meriton Apartments Pty Limited v Fairfield City Council

[2004] NSWLEC 423

Land and Environment Court (NSW)|2004-06-07|Before: Pain J, Mr P

View original source

At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2004-06-07

Before

Pain J, Mr P

Source

Original judgment source is linked above.

Judgment (75 paragraphs)

[1]

Background 3 Based on the Points of Claim prepared by the Applicant and an agreed chronology prepared by the parties a substantial part of the relevant background history is agreed as follows: The County of Cumberland Planning Scheme Ordinance 4 On 27 June 1951, the land was reserved under Division 2 of Part II of the County of Cumberland Planning Scheme Ordinance ("the CCPSO") for the purposes of "parks and recreation area" as indicated by dark green colouring on the scheme map. A caravan park was permissible on the land subject to the grant of development consent from the Cumberland County Council. The 1954 Consent 5 On 15 January 1954, the then owner of the land applied to Cumberland County Council pursuant to the CCPSO and Part XIIA of the Local Government Act 1919 for approval to establish a "tourist-caravan park" on the land.

[2]

6 On 19 February 1954, Cumberland County Council resolved that approval be given to the proposed development subject to a number of conditions including: … (d) Except for a caretaker, the caravan park is to be used for accommodating tourists, travellers and other transient persons only and shall not be used, leased or occupied for permanent residence. 7 On 1 March 1954, Cumberland County Council wrote to Mr and Mrs J.C. Olsson referring to the application "to establish a caravan park" on the land and advising that Cumberland County Council, at its meeting held on 19 February 1954, resolved that approval be given to the "proposed development" subject to the conditions including (d) quoted above ("the development consent").

[7]

13 Section 106 of the EP&A Act defines "existing use" as follows: (a) the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for Division 4A of Part 3 or Division 4 of this Part, have the effect of prohibiting that use, and (b) the use of a building, work or land: (i) for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and (ii) that has been carried out, within one year after the date on which that provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse. The Issues 14 The Applicant and the Respondent agreed that the relevant date for determining whether existing use rights attach to the land is the date on which the FPSO came into force, being 3 May 1974 ("the relevant date"). This was the date on which development for the purpose of caravan parks first became prohibited within the relevant zone. Following the hearing I requested the parties to provide the Court with submissions addressing aspects of the operation of cl 27 of the FPSO. The parties agreed that while cl 27(1) states that "an existing use of land may be continued notwithstanding that such existing use is for a purpose for which … land may not be used under Part III in respect of the zone in which … such land is situated" and cl 27(2) has the effect that the development consent continues, this did not remove the prohibition on caravan parks contained in part III of the FPSO. Further, the parties agreed that cl 27 did not mean that the appropriate test for determining the scope of any existing use rights attaching to the land, as at 3 May 1974, was that contained in the FPSO. Accordingly, the parties agreed that the test for determining the scope of the existing use right is that contained in s 106 of the EP&A Act.

[33]

38 Condition (d) does not provide any guidance as to the length a visitor to the caravan park may stay before they are regarded as being permanent residents. The letter dated 15 January 1954 written by the then owner of the land to the Council seeking consent to establish a "Tourist Caravan Park", in response to which letter the Council granted the development consent, stated that "Tourists will only be allowed to stay for a maximum term of 3 weeks …". On 5 July 1965 the Council wrote to the then owner of the land advising that the Caravan Park would be required to comply with certain standards, applicable to all caravan parks within the local government area, and attaching a copy of the applicable standards, including a document entitled "Regulations to be adhered to by the Licensed Person Permitting the site to be occupied". Condition 9 of the "Regulations to be adhered to by the Licensed Person Permitting", as amended in 25 August 1965 states that: (a) The Proprietor shall not allow occupants of overnight vans to remain in the park for a period exceeding one month. (b) Tourist vans shall not remain on the park for a period exceeding one month. (c) Where overnight vans are vacated the same occupant shall not be granted overnight occupancy in the park until a period of at least three months has expired unless the Chief Health Inspector is satisfied that they have not been occupying an overnight van for more than one month. 39 In August 1974 the Council adopted a Code for Minimum Standard for Caravan Parks pursuant to s 288A of the Local Government Act 1919. Clause 6 of this code provided that: (a) The licensee shall not permit any person to occupy the same caravan site for a continuous period exceeding six weeks. (b) The licensee shall not permit any caravan other than an on-site caravan, to occupy the same site for a continuous period exceeding six weeks. 40 On 25 October 1974 the Council granted a development consent for works to upgrade the caravan park subject to a condition that the "maximum period of occupation per van is to be one month." It is clear from the above that no consistent test of what amounts to permanent residency in the caravan park has been adopted by the Council either pursuant to condition (d) or otherwise. It is however clear that the notion of permanency involves long term stays of months and years rather than short term stays of weeks.

[58]

64 The cases relied on by the parties in relation to this issue, such as Eaton & Sons Pty Limited v The Council of the Shire of Warringah (1972) 129 CLR 270 ("Eaton") and Steedman, are authority for the general proposition that, where an existing use is physically limited to a portion of land forming part of a single unit, the whole of the land forming that single unit can be regarded as being subject to that existing use right if the whole is held for a purpose associated with the existing use. In Eaton an existing use right for a timber and hardware selling business was held to exist over vacant land which was owned by the applicant and which was not used previously for the storage of wood as there was evidence that the vacant land was being kept for future use as the applicant's operations required. In Steedman the Court of Appeal applied Foodbarn to find that a use which is minor, but not merely ancillary to another use, is no less a use for the purposes of existing use rights. Stein J had held at first instance that the use of the land for extractive industry was "subsumed" into an 'incidental or ancillary' use to the 'dominant' use of orcharding or small farming. Kirby J, with whose reasons Meagher JA agreed, held at 575 that: The question is whether there is room for a principle that a minimal or trivial use is to be disregarded, and if so where the line between "use" for the purpose of the EPAA and minimal use is to be drawn. It is the clear view of this Court that a minor use is not to be ignored simply because it is minor. In Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 (CA), Glass JA said (at 161) that: "it is immaterial that [one use] may be overshadowed by the others whether in terms of income generated space occupied or ratio of staff engaged." One might add that it is immaterial that other contrasts of a similar nature might be drawn between the various uses of land. Merely because orcharding was carried out every day (assuming it was) and floaters were cut only occasionally, the conclusion cannot be drawn that the extractive use can be ignored. … … The use here, although concededly minor, certainly existed, was real and was not merely ancillary to another "true" use of orcharding or small farming. In the words of Glass JA in Foodbarn, the fact that it was a use overshadowed by others did not make it less a use. The relativities were "immaterial".

[65]

71 The Council relied on the affidavit of Lester Kelly dated 31 May 2004 and documentary evidence, including the following, to support its argument that the Applicant had abandoned any existing use rights attaching to the land after the relevant date: (a) a letter from Mr and Mrs Hooley dated May 1977 indicating that, while there were 270 caravan sites at the caravan park a friend had been told by the office that there were 470 caravans currently at the park and that they are "confident that at least 90 of the sites are occupied by permanents"; (b) a note made by a Council officer regarding an inspection carried out on 30 June 1977 to the effect that "about 80% of vans are permanent"; (c) a letter from the Applicant to the Council dated 16 December 1986 stating that "the … caravan park contains 275 van sites and has been operating for many years. Of these sites, 95% (260) sites are occupied by permanent dwellers either in owner occupied or park owned vans and this has been the situation since the park opened."; (d) the "caravan park licences" granted to the Applicant by the Council pursuant to s 289H of the Local Government Act 1919 (since repealed) for the periods between: (1) 26 May 1989 to 26 May 1990; (2) 22 May 1990 to 31 December 1990; (3) 1 January 1991 to 31 December 1991; (4) 1 January 1992 to 31 December 1992; (5) 1 January 1993 to 31 December 1993; each licence 260 long term sites and 15 short term sites at the caravan park; (e) the "caravan park licences" granted to the Applicant by the Council pursuant to part F of s 68 of the Local Government Act 1993 for the periods between: (1) 1 January 1994 to 31 December 1994; (2) 1 January 1995 to 31 December 1995; (3) 1 January 1996 to 31 December 1996; each licence 260 long term sites and 15 short term sites at the caravan park; and (f) the "caravan park licence" granted to the Applicant by the Council pursuant to part F of s 68 of the Local Government Act 1993 for the period between 1 January 1997 to 31 December 1997 licences 251 long term sites and 15 short term sites at the caravan park; (g) the "caravan park licence" granted to the Applicant by the Council pursuant to part F of s 68 of the Local Government Act 1993 for the period between 1 January 1998 to 31 December 1998 licences 267 long term sites and 5 short term sites at the caravan park; (h) the "caravan park licences" granted to the Applicant by the Council pursuant to part F of s 68 of the Local Government Act 1993 for the periods between: (1) 1 January 1999 to 31 December 1999; (2) 1 January 2000 to 31 December 2000; each licence 268 long term sites and 5 short term sites at the caravan park; and (i) the "caravan park licences" granted to the Applicant by the Council pursuant to part F of s 68 of the Local Government Act 1993 for the periods between: (1) 1 January 2002 to 31 December 2002; and (2) 1 January 2003 to 31 December 2003; each licence 265 long term sites and 8 short term sites at the caravan park.

Parties

Applicant/Plaintiff:

Meriton Apartments Pty Limited

Respondent/Defendant:

Fairfield City Council

Cases Cited (14)

CITATION : Meriton Apartments Pty Limited v Fairfield City Council [2004] NSWLEC 423 APPLICANT: Meriton Apartments Pty Limited PARTIES : RESPONDENT: Fairfield City Council FILE NUMBER(S) : 11478 of 2003 CORAM: Pain J KEY ISSUES: Existing Use Rights :- whether existing use rights for tourist caravan park - whether abandonment of existing use rights County of Cumberland Planning Scheme Ordinance Environmental Planning and Assessment Act 1979, s 106, s 107(1) Environmental Planning and Assessment Regulation 2000, Pt 5 LEGISLATION CITED: Fairfield Local Environmental Plan 1994 Fairfield Planning Scheme Ordinance Local Government Act 1919 Local Government Act 1993 ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 64 LGRA 177; Baulkham Hills Shire Council v O'Donnell (1990) 69 LGERA 404; Dosan Pty Limited v Rockdale City Council (2001) 117 LGERA 363; Eaton & Sons Pty Limited v The Council of the Shire of Warringah (1972) 129 CLR 270; Foodbarn Pty Limited v Solicitor General (1975) 32 LGRA 157; House of Peace Pty Limited v Bankstown City Council (2000) 48 NSWLR 498; Hudak and Woollahra Municipal Council v Banool Developments Pty Ltd (1973) 129 CLR 138; Jeblon Pty Limited v North Sydney Municipal Council (1982) 48 LEGRA 113; Lane Cove Municipal Council v Lujeta Pty Limited (1986) 58 LGRA 157; CASES CITED: Northern Territory Planning Authority v Murray Meats (NT) Pty Ltd (1983) 51 LGRA 158; North Sydney Municipal Council v Boyts Radio & Electrical Pty Limited (1989) 16 NSWLR 50; RCM Constructions v Ryde City Council [2004] NSWLEC 266; Rose Bay Marina Pty Ltd v Minister for Urban Affairs and Planning (2002) 122 LGERA 255; Royal Agricultural Society v Sydney City Council (1987) 61 LGERA 305; Shire of Perth v O'Keefe (1964) 110 CLR 529; Steedman v Baulkham Hills Shire Council (No 2) (1992-3) 31 NSWLR 562; Stubberfield v Brisbane City Council (1969) 24 LGERA 286; Sydney City Council v Ke-Su Investments Pty Ltd (No 2) (1983) 51 LGRA 186; Woollahra Municipal Council v TAJJ Investments Pty Ltd (1982) 49 LGRA 123 07/06/2004 DATES OF HEARING: 19/07/2004 23/07/2004 16/08/2004 DATE OF JUDGMENT: 11/05/2004

(1990) 69 LGERA 404

(2001) 117 LGERA 363

(1972) 129 CLR 270

(2000) 48 NSWLR 498

(1973) 129 CLR 138

(1989) 16 NSWLR 50

(2002) 122 LGERA 255

(1987) 61 LGERA 305

(1964) 110 CLR 529

(1969) 24 LGERA 286

(1993) 79 LGERA 321

(2001) 114 LGERA 345

[2004] NSWLEC 266

Cited By (1)

AMT Planning Consultants Pty Ltd t/as Coastplan Consulting v Central Coast Council