Minister for Planning v. Rose Bay Marina Pty. Limited [2003] NSWCA 119

LOWER COURT Land & Environment Court JURISDICTION : LOWER COURT LEC 40191/01 FILE NUMBER(S) : LOWER COURT Pearlman J JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40725/02 LEC 40191/01

MEAGHER JA HODGSON JA SANTOW JA

Monday 19 May 2003 MINISTER FOR PLANNING (FORMERLY MINISTER FOR URBAN AFFAIRS AND PLANNING) V. ROSE BAY MARINA PTY. LIMITED Judgment 1 MEAGHER JA: I agree with Hodgson JA. 2 HODGSON JA: On 9 August 2002, in proceedings brought by the respondent Rose Bay Marina Pty. Ltd. (RBM) against the appellant Minister for Planning (the Minister), Pearlman J in the Land & Environment Court made the following declaration: DECLARE THAT the use of the land delineated in red on the plan attached hereto was immediately before 13 July 1990 and remains a use of that land for the purpose of a "large marina" within the meaning of Sydney Regional Environmental Plan No. 23 - Sydney and Middle Harbours and such constitutes a lawful "existing use" of that land within the meaning of s.106 of the Environmental Planning and Assessment Act, 1979. 3 The Minister appeals to this Court from that declaration.

CIRCUMSTANCES 4 RBM wishes to carry out a development on certain land at Rose Bay, including certain waters of Sydney Harbour. It seems clear that the development it has proposed is such as to fall within the definition of "large marina" under Sydney Regional Environmental Plan No.23 - Sydney & Middle Harbours (SREP23). "Large marina" is defined in cl.5(1) of SREP23 as follows: "large marina" means: (a) a boat storage facility; or (b) some other permanent boat storage structure, located on the waterway which contains 30 or more berths (or other storage facilities) and associated support facilities and which may include shops, restaurants, offices and a manager's residence on an adjoining area of land or the waterway. 5 Under SREP23, the site of the proposed development falls within Zone No.W1 - General Waterways, and within that zone development for the purpose of "large marina" is prohibited. 6 RBM has attempted to overcome that prohibition by seeking to establish an existing use of the site. An "existing use" is defined in s.106 of the Environmental Planning & Assessment Act 1979 (EPA Act) as follows: 106 In this Division, "existing use" means: (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. 7 If RBM was able to establish an existing use, then s.107 of the EPA Act would authorise continuance of that use, though not any enlargement or expansion or intensification of that use, or any increase in the area of the use from "the area actually and physically used" at the relevant time: s.107(2)(b) and (c). However, s.108 of that Act and cl.41-42 of the Environmental Planning & Assessment Regulation 2000 (EPA Regulation) would mean that the enlargement or expansion or intensification of that existing use would be possible with development consent, so long as it was "carried out only on the land on which the existing use was carried out immediately before the relevant date" (here, 13 July 1990): see EPA Regulation cl.42(1) and Lemworth Pty. Ltd. v. Liverpool City Council (2001) 53 NSWLR 371. 8 RBM does not own the land on which it proposes to carry out the development. The owner is the Waterways Authority. RBM has a lease over part of the land, but the rest of the land is public waterway, in respect of which RBM's only rights are derived from a licence to place and use 72 swing moorings, which swing moorings have in fact been in place in the public waterway. 9 The EPA Act and EPA Regulation require a development application to contain a statement signed by the owner of the land on which the development of the land is to be carried out to the effect that the owner consents to the making of the application: EPA Act s.78A(8), and EPA Regulation cl.50(1)(a) and Schedule 2 par.2(1). 10 On 27 September 2001, the Waterways Authority notified RBM that it would not consent to RBM making the application for the proposed development. However, on 10 October 2001, RBM lodged a development application with the Minister, who was the consent authority. On 11 October 2001, the Minister returned the development application stating that, without the Waterways Authority's consent, it was not properly made. 11 RBM then brought proceedings in the Land & Environment Court seeking declaratory relief that the development application was competent and also a declaration as to existing use. On 26 July 2002, Pearlman J held that RBM was not entitled to declaratory relief that the development application was competent, and that the Minister was entitled to reject the development application in circumstances where it did not contain the owner's consent and such consent was not likely to be forthcoming. However, the primary judge also decided that RBM was entitled to the declaration as to existing use, from which this appeal is brought. 12 RBM also brought proceedings in the Supreme Court of New South Wales seeking judicial review of the Waterways Authority's decision not to consent to the making of the development application. On 27 October 2002, Cripps AJ dismissed those proceedings, holding that it had not been shown that the Waterways Authority's decision process was tainted.

DECISION OF PRIMARY JUDGE 13 In dealing with the question of existing use, the primary judge noted that it depended on three lines of enquiry: (1) What "land" was the subject of the claimed existing use at the date immediately before the coming into force of the instrument prohibiting that use ("the relevant date")? (2) What was the purpose for which the land was being used at the relevant date? (3) Was that purpose lawful? 14 On the first question, the primary judge noted that RBM occupied Lot 1 in Deposited Plan 1014928 pursuant to a registered lease, and that marina structures, including building ramps, jetties and 29 fixed berths were situated on Lot 1. Also, the primary judge noted that RBM "occupied" 72 swing moorings pursuant to Commercial Mooring Licence No.CL1011, and noted the submission for RBM that the whole of the 360 degrees swept paths of boats moored at swing moorings was used for the relevant purpose. She continued: 43. Mr Preston conceded that, if there was an existing use at the relevant date, it related to the area within lot 1. But he contended that it has not been established that the moorings area was so used at the relevant date because, firstly, there is no evidence that each swing mooring was occupied on the relevant date, secondly, there is merely a hypothetical depiction of the swept path in the absence of the actual path (since the actual path depends upon the size and capacity of each moored boat), and, thirdly, that the moorings area was and is a public waterway and not in the exclusive occupation of the RBM or its predecessors.

44. I do not accept Mr Preston's submission. A parcel of land could properly be regarded as being used for the purpose of a car park even if, at any given date, cars did not actually occupy every single car space. The 72 swing moorings were in position at the relevant date, and, according to the evidence of Mr R G Westbrook to which I refer in par 47, they were being used on a regular basis for the mooring of boats from about 1971 onwards. Furthermore, the fact that members of the public also used the waterway at the relevant date does not derogate from the fact that it was at the same time used by RBM or its predecessors for the movement of boats and the provision of tender facilities.

45. Accordingly, I find that, if there was an existing use at the relevant date, it was a use of land comprising the whole of the site - that is, the area within lot 1 and within the moorings area as outlined in red on plan 1077-01. 15 The primary judge then considered the history of use of the site, and continued: 48. I turn now to the remaining lines of inquiry, having regard to the above findings. The approach that the Court should take in this regard is not to pursue meticulous details of activities, transactions and processes on the site, but to construe "the use" broadly in terms of an appropriate genus which best describes the activities on the site: - see Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 at 310-311; and North Sydney Municipal Council v Boyts Radio and Electrical Pry Ltd and Ors (1989) 67 LGRA 344 at 353. Furthermore, whilst minds might differ and there might be gaps in the history of the site, the Court is entitled to make findings of fact on the balance of probabilities in order to make the necessary determination for the planning purpose which is required.

Use for a purpose 49.1 am satisfied on the balance of probabilities, and I so find, that the site was being used for the purpose of a large marina at the relevant date. At that date the following were constructed upon the site - jetties, 29 fixed berths, 72 swing moorings, slipways, ramps, decks, boatshed, restaurant and milk bar. The site was being used for activities which involved those structures - that is, including mooring and berthing of boats, tender services and slipway services, sale of fishing tackle, bait, fuel and boats, and provision of refreshments. Taken as a whole, the use of the site at the relevant date fell within the description of a large marina in SREP 23.

50. Mr Preston took the Court through each of the documents comprising the documentary evidence in an endeavour to show that there were gaps in the history, that it was not established that buildings marked on plan as "existing" were in fact existing, and that it was not established that approved works were actually carried out.

51. I reject that submission for three reasons. First, works that were shown as existing continued to be shown as "existing" on subsequent plans, and works that were the subject of approval were shown on subsequent plans as "existing". The inescapable inference is that "existing" works in fact existed, and proposed works in fact had been carried out. By way of example, the 1924 blueprint, the 1961 approved plan and the 1967 plan can be compared and they support the inference. They do not do so with precision, but they indicate, on the balance of probabilities, that what was proposed in 1924 was carried out by 1961, and that what was proposed in 1961 was carried out by 1967. Secondly, the evidence of Mr Westbrook, which starts with his observations in 1958, demonstrates generally what existed from time to time and it corroborates a finding that there were existing structures altered and extended over the whole period up to the relevant date generally in conformity with, or at least following upon, the various approvals. Thirdly, both Woollahra Council and the MSB granted approval to numerous alterations and additions from time to time over the whole period and an inference can be drawn that there were from time to time existing buildings which were to be so altered or extended or added to.

52. Mr Preston also submitted that the most that could be established at the relevant date was that parts of the site were used for independent purposes unrelated to the use of the site for the purpose of a marina. Those independent uses comprised a restaurant, a residential flat, a shop, a public waterway, and a marina (but not a large marina), and all these uses are permissible with consent under SREP 23. It is correct to say that these uses are so permissible, but I do not accept that they are, at least in relation to the purpose for which the site has been used, independent and unrelated uses. The submission, in my opinion, ignores the description of large marina in SREP 23. That description encompasses, not only the boat storage facilities, but also "associated support facilities" stipulated to include "shops, restaurants, offices and a manager's residence". The fact that the uses that Mr Preston listed may be carried out by different proprietors, or may be availed of by persons who are not necessarily using other components of the marina, does not derogate from a conclusion that they are facilities which are associated with and support the boat storage facilities and structures located on the waterway. The conclusion remains, in my opinion, that the site was used at the relevant date for the purpose of a large marina. 16 Finally, the primary judge considered the question of lawfulness, and found this question in RBM's favour. Accordingly, the primary judge made the declaration appealed against.

GROUNDS OF APPEAL 17 The Minister relied on the following grounds of appeal: 1. Her Honour erred in first determining the land upon which an existing use might exist before determining whether there even was a use or the purpose of the use, rather than first determining whether there was a use and the purpose of the use then determining the land upon which that use for that purpose was carried out.

2. Her Honour erred in characterising each of the uses conducted on different parts of the land, including a restaurant, a residential flat, a shop, a public waterway and a marina, as being a single, aggregate use for the purpose of "large marina" in that: (a) the planning purpose of "large marina" did not exist as a nominate permissible purpose of development until the coming into force of Sydney Regional Environmental Plan No. 23 - Sydney and Middle Harbours on 13 July 1990, yet the individual uses were for different purposes and necessarily predated the creation of that nominate purpose of "large marina"; (b) the individual uses were carried out as independent businesses by different people to the appellant on different parts of the land pursuant to sub-leases and licenses; (c) the character, extent and other features of the individual uses were such as to make those uses independent uses and were not subsumed into the single, aggregate use of "large marina", and they would not lose the characterisation as independent uses even if it could be said that they were ancillary to, or related to, or interdependent with the marina use.

3. Her Honour erred in finding that the area marked in red on plan 1077-01 was used immediately before the relevant date for the purpose of swing moorings.

4. Her Honour erred in finding that the area of land alleged to be used for the purpose of swing moorings (shown by red marking on the plan 1077-01) was used for the purpose of a "large marina" immediately before the relevant date.

SUBMISSIONS 18 Mr. Preston SC for the Minister submitted that, before one could determine on what land the existing use was carried out, it was necessary first to identify the use being considered: see Eaton & Son Pty. Ltd. v. Warringah Shire Council (1972) 129 CLR 270 at 291; Scully v. Leichhardt Council (1994) 85 LGERA 109 at 111. Accordingly, he submitted, the primary judge was in error in the order in which she addressed the questions. 19 Next, he submitted that the primary judge erred in retrospectively applying the definition of "large marina" in order to characterise the existing use. That definition was introduced for the first time by SREP23, so that the characterisation of the use immediately before SREP23 came into force could not be informed by reference to that category: North Sydney Municipal Council v. Boyts Radio Electrical Pty. Ltd. (1989) 16 NSWLR 50 at 61D; Dosan Pty. Ltd. v. Rockdale City Council (2001) 117 LGERA 363 at [174]. It was important, he submitted, that the use be identified at the appropriate level of generality: Woollahra Municipal Council v. Banool Developments Pty. Ltd. (1973) 129 CLR 138 at 146; cf. Royal Agricultural Society of NSW v. Sydney City Council (1987) 61 LGRA 305 at 310; Ashfield Municipal Council v. Armstrong (2002) 122 LGERA 105 at [15] and [16]. Mr. Preston submitted that if "large marina" was the appropriate class, this would permit the adding of shops and changing the type of shops, without development consent. 20 Also in relation to ground 2 of the appeal, Mr. Preston submitted that the primary judge erred in aggregating separate units of occupation used by occupiers for different purposes, to reach the conclusion of global use as a large marina. There were separate consents and approvals for different parts for different purposes, and these did not authorise the use of the whole as a large marina: Dosan at [77] and [78]; Lemworth at [40] and [46]. This confirmed that these different uses of different parts of the land should not be considered as subsumed into an overall purpose of use as a large marina: Foodbarn Pty. Ltd. v. Solicitor-General (1975) 32 LGRA 157 at 161; Baulkham Hills Shire Council v. O'Donnell (1990) 69 LGRA 404 at 409-10. 21 Turning to the third ground of appeal, Mr. Preston submitted that RBM needed to show that the land was "actually and physically used" at the material date: s.107(2)(b) of the EPA Act; Vaughan Taylor v. David Mitchell-Melcann (1991) 25 NSWLR 580 at 587; Lemworth at [36]. This was not shown by the existence of moorings and postulated swing paths: what was necessary was evidence of what areas were actually used by boats in the period leading up to July 1990. This he submitted was very different from the primary judge's example of a car park, where an occupier has a right to occupy the whole area whether or not cars are parked there. 22 On the fourth ground of appeal, Mr. Preston submitted that the waters of Sydney Harbour remain open to the public, so the proper planning purpose was that of public waterway, as with the public road in Mulcahy v. Blue Mountains City Council [No.2] (1995) 87 LGERA 422 at 429. Accordingly, these waters could not be treated as used for the purpose of a large marina. There would be no injustice from this: there being no prohibition of mooring in a public waterway, there would be no prohibition of this as being part of a "large marina". 23 Mr. Craig QC for RBM submitted that the definition in s.106 of the EPA Act relevantly posed the question, was there a use of land for a lawful purpose immediately before the coming into force of an environmental planning instrument (here, 13 July 1990 and SREP23) which would have the effect of prohibiting that use. SREP23 would have the effect of prohibiting use as a "large marina" as defined, so the question posed was whether there was a use of land as a large marina; and the primary judge correctly addressed that question. Her finding that there was such a use was a factual finding, and no appealable error was shown. 24 Mr. Craig submitted that the finding to the effect that the whole of the area identified in the order was used for that purpose was likewise a factual finding with no appealable error. If there was error to the extent that so much of the area as was used for a shop (a milk bar) and restaurant was not actually and physically used for the purpose of a large marina, then this Court should do no more than amend the order to exclude the area of the shop and the restaurant from that indicated by the order.

DECISION 25 In addressing the question of whether there is an existing use of land, it is necessary first to identify, at least in general terms, the area of land one is concerned with, so that one can proceed to ascertain just what are the activities and physical features relied on as amounting to such a use. However, a determination that there is such an existing use of land does not of itself determine either (a) "the area actually and physically used" within s.107(2)(b) of the EPA Act, or (b) the extent of "the land on which the existing use was carried out" within cl.42(1) of the EPA Regulation. If determination of those limits is required, then in my opinion that is a further exercise which can only be carried out after one has identified the use. 26 It appears that the primary judge did not undertake this as a separate exercise, and the declaration she made could be regarded as ambiguous. It defined an area on a plan, thereby suggesting it was specifying the area in category (a) above, or possibly the area in category (b) above; but the order does not clearly state this. As I understood it, it was agreed by both parties that in fact the primary judge intended to indicate the area referred to in (a) above, that is, the area actually and physically used, and I will proceed on that basis. In those circumstances, it was not strictly correct for the judge not to address squarely the question of the area actually and physically used, after determining what the existing use was. Whether or not this involved any error in the result is a question I will return to. 27 Turning to ground 2, on the question of characterisation of use, I accept Mr. Craig's submission that the definition of existing use in s.106 means that the first question is whether there was use of land immediately before the coming into effect of SREP23 which SREP23 would have the effect of prohibiting as being a "large marina" as defined in SREP23. In that sense, it is necessary to approach the matter in the light of the definition, and to give retrospective effect to the definition to that extent. 28 However, in my opinion that does not necessarily mean that one stops there. For example, suppose the relevant prohibition was against use for "heavy industry", and suppose that the existing use was one type of heavy industry, say metal manufacturing. In those circumstances, one would find that this use was a use for heavy industry, and so would be prohibited; but this would not necessarily mean that the existing use should be characterised in terms of "heavy industry" rather than metal manufacturing. If one gave the use the wider characterisation, that would mean that the land could later be used for the manufacture of chemicals, for example, without development consent; and I do not think that would be in accordance with the intention of the existing use provisions: cf. Banool at 146. 29 So the first question is whether there was use of this land as a "large marina" as defined. The Macquarie dictionary relevantly defines "berth" to mean "room for a vessel to moor at a dock or ride at anchor"; and it is not disputed that each of the 72 swing moorings is a berth. Further, it is clear that the 29 berths and 72 swing moorings were used as part of one enterprise. Accordingly, there was a use of the land for a boat storage facility, with over 30 berths and support facilities; and so, subject to the appellant's point concerning the status of Sydney Harbour as a public waterway, there was use of the land as a "large marina" as defined. 30 In effect, Mr. Preston submitted that this should be regarded as a boat storage facility with only 29 berths: it was necessary to disregard the use of 72 swing moorings, since it was wrong to say that a public waterway was used for the purpose of a marina. Although use in conjunction with the marina was authorised by the Waterways Authority, Mr. Preston submitted that this was consistent with and did not detract from the status of the relevant waters as a public waterway, and the area was correctly considered as used as a public waterway, and not as a marina or part of a marina. 31 In my opinion, it must be kept in mind that the question of use, and its relevance to town planning prohibitions, is a separate question from authorisation from the owner of land or from a person empowered as a matter of title to authorise use of land. If a public waterway is in fact used as part of a marina, this may overcome a town planning prohibition from continuing that use; but this says nothing about whether that use is authorised as a matter of title. 32 As a matter of town planning, if RBM did not have the benefit of an existing use, and if an injunction was sought against it on the basis that its use of 79 swing moorings in conjunction with 29 fixed berths meant that it was conducting a large marina, I do not believe it could defend that claim on the basis that the 79 swing moorings had to be disregarded, because the only use recognised for the waters they occupied was use as a public waterway. Even in relation to public roads, there could be uses in addition to the use as a public road, for example where a restaurant is given a licence to place tables and chairs on a footpath, or an advertiser is given a licence to place advertising signs. In my opinion, the status of the waters of Sydney Harbour as a public waterway does not mean that the swing moorings cannot be regarded as being used for the purposes of a marina. 33 Accordingly, in my opinion there is no doubt that the existing use can be characterised as use as a boat storage facility which contains more than 30 berths and associated support facilities. However, there is some question as to whether the use should be described as also including a shop and restaurant. In my opinion, that depends on whether the conduct of the shop and restaurant should be considered as sufficiently integrated into the operation of the marina. 34 The primary judge held that the shop and restaurant were not "independent and unrelated uses", but rather were "facilities which are associated with and support the boat storage structures". However, in so doing she may have placed some weight on the definition in SREP23; and in my opinion, at that stage of the enquiry, that would be an error. It would then be a question whether such an error would vitiate the decision. 35 There were a number of factors supporting the view that the shop and restaurant were sufficiently integrated into the marina. They were located in the same building as the shore facilities of the marina, and in areas of the building subleased from RBM. I think judicial notice can be taken of the fact that businesses of this type are quite often associated with marinas. Furthermore, the businesses of the shop and restaurant and the business of the marina were and are, to some extent at least, mutually supportive. On the whole, I am not satisfied that the primary judge's decision was vitiated by her reference to the definition in SREP23, and in any event, I think it was the correct decision. 36 In the declaration she made, the primary judge expressed the use in terms of "large marina" as defined in SREP23. I think it preferable to express it more directly in ordinary English, to make it clear both what I believe to be the appropriate level of generality, and also the extent to which the use did and does in fact include "shops" and "restaurants", that is, one shop (milk bar) and one restaurant. 37 Next, there is the question of what was the area actually and physically used at the relevant time. Mr. Preston submitted that this area did not include the shop and the restaurant; but that matter is determined by my decision of the previous question. Mr. Preston also submitted that it was not proved that the area of the harbour claimed to be associated with the swing moorings was actually and physically used at the relevant time: the evidence did not show what use was made of what moorings at what times, or with what boats; and accordingly, it was not possible to infer that the whole of the area was in fact actually and physically used at the relevant time. Mr. Preston submitted that this question was not squarely addressed by the primary judge, and that the correct answer was that it could not be said that the whole of the area was actually and physically used. 38 Although the question was not addressed in precisely those terms, in my opinion that is in substance the question addressed by the primary judge, and in my opinion her decision was correct. 39 Where the use in question is of a kind that a large area is needed for the use, but only part of that area is physically occupied at any one time, it would be an error to say that only the particular part physically occupied at that time is actually and physically used at that time. The primary judge gave the example of a car park; and although it could be said that there is some difference from the present case in that, in the case of a car park, the occupier has a right to occupy a whole defined area, even if cars are parked in only part of that area at any time, I do not think this consideration makes the analogy inappropriate on the question of what area is actually and physically used. Another example would be a sports field used for athletics training, or as a cricket ground. In all these cases, actual and physical use of a large area may be established, even though the activities and physical features relied on do not at the relevant time occur over the whole area. 40 Here, although the evidence is not as clear as it might have been, it did in my opinion support a conclusion that all of the moorings were occupied for some substantial time during (say) the year prior to the relevant date, and also that a substantial number were occupied at any one time. It was not proved what size boats occupied what moorings, in order that one could know what size circle would have been swept by those boats; but it is relevant that the red line defining the area is drawn between the outer moorings themselves, not between the outer limits of the swept circles associated with the outer moorings. Furthermore, any internal gaps that might be created, if circles smaller than those postulated were adopted for particular moorings, would reasonably be regarded as being used for boat movements associated with the marina. 41 In my opinion, it would be the correct conclusion, on the evidence, that the whole of the area within the red line was actually and physically used for the purposes of the marina. Accordingly, this point also fails; and it follows that the appeal in substance fails. 42 In my opinion, there should be substituted for the declaration made by the primary judge, in order to clarify the effect of the declaration, the following declaration: That the use of the land delineated in red on the plan attached to the order of the primary judge was immediately before 13 July 1990 and remains a use of that land for the purpose of a boat storage facility which contains more than 30 berths and associated support facilities and includes a shop (milk bar) and a restaurant, that the said area delineated in red was and continues to be actually and physically used for that purpose, and that such use constitutes a lawful "existing use" of that land within the meaning of s.106 of the Environmental Planning & Assessment Act 1979. 43 The orders I propose are: 1. Substitute for the declaration made by the primary judge the declaration set out in par.42. 2. Otherwise appeal dismissed. 3. Appellant to pay respondent's costs of the appeal. 44 SANTOW JA: I agree with Hodgson JA. **********

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