Moore and Anor v Yarrowlumla Shire Council

GILBERT MOORE and PHYLLIS FLEMING Applicants v YARROWLUMLA SHIRE COUNCIL Respondent

By notice of motion, the respondent, Yarrowlumla Shire Council, seeks an order striking out these class 1 proceedings.

The proceedings have been brought by the applicants, Mr G Moore and Ms P Fleming ("the objectors"), by way of appeal against the determination of the council to grant development consent to J and A Hyles ("the adjoining owners"), who are neighbours of the objectors. That development consent, numbered 1999/DA-012, was granted subject to conditions in relation to land described as lot 61, DP 801234 Parkwood Road, Parish of Weetangera ("the site"). The development to which consent was granted was described in the notice of determination as follows: Stage 1 Upgrade of Ginninnderra Falls Tourist Facility comprising:

• upgrading of Trails Carpark;
• construction of ridge carpark;
• upgrading of roads in animal enclosure;
• upgrading and relocation of river toilet block; and
• upgrading of entrance drive.

The dispute between the parties centres on whether the objectors have a right of appeal in relation to a development consent granted to persons other than them. Put another way, are the objectors, as third parties, invested with a right of appeal to this Court against the determination of the council to which they objected?

Section 97(1) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") confers upon an applicant for development consent a right of appeal to this Court in circumstances where the applicant is dissatisfied with the determination of a consent authority with respect to that applicant's development application.

The objectors were not the applicants for the development consent. Rather, they lodged an objection with the council in respect of it. However, a right of appeal to this Court is also conferred, by s 98(1) of the EP&A Act, upon "[a]n objector who is dissatisfied with the determination of a consent authority to grant consent to a development application for designated development …". Section 4(1) defines an "objector" as "… a person who has made a submission under section 79(5) by way of objection to a development application for consent to carry out designated development".

The question, then, is whether the adjoining owners made a development application for consent to carry out "designated development". The objectors contend that the application was for consent to the upgrading and relocation of the river toilet block as an independent use of the site, and that was designated development. Accordingly, the objectors claim that they have a right of appeal. The council contends that it the upgrading and relocation of the river toilet block was a subordinate use of the site, and that the development the subject of the development application was not designated development. Hence, the council claims that no right of appeal accrues to the objectors.

"Designated development" is defined by s 77A to mean development that is declared to be designated development by an environmental planning instrument or by the regulations. Clause 49 of the Environmental Planning and Assessment Regulation 1994 ("the 1994 regulation") provides that development described in sch 3 of the regulation is declared to be designated development. (By reason of transition provisions, the 1994 regulation applies in this case and not the current regulation).

Schedule 3 of the regulation comprises a list of types or purposes of development. The objectors claim that the river toilet block falls within one of the following types of development appearing in sch 3: Composting facilities or works that:

(2) are located: (a) in or within 100 metres of a natural waterbody, wetlands, coastal dune fields or an environmentally sensitive area; …

(3) temporarily or permanently store sewage, sludge or effluent: (b) at a location: (i) within 100 metres of a natural waterbody or wetlands … (4) release or reuse more than 20 persons equivalent capacity or 6 kilolitres per day of sewage, effluent or sludge at a location: (a) in or within 100 metres of a natural waterbody, wetlands, coastal dune fields or an environmentally sensitive area …

Waste management facilities or works that store, treat, purify or dispose of waste or sort, process, recycle, recover, use or reuse material from waste and that:

(4) are located: (a) in or within 100 metres of a natural waterbody, wetlands, coastal dune fields or an environmentally sensitive area …

The proposed development is described in a plan numbered 99-0406-MP3. It shows that upgrading, extension and modification is to be made to a number of facilities within the site. A legend indicates the parts of the site that are to be modified, removed, upgraded and constructed. Specifically, the map outlines the proposed development as follows: Existing residence and entry station

Existing Manager's residence with proposed additional screen planting … existing public toilet to be removed from public use. Shed to be modified to garage equipment.

Existing car park to be upgraded & extended to better service picnic areas, including screen planting of trees & shrubs. Day walks start from this car park with upgraded signage.

Upgrade existing roads through enclosure to create one way loops to view animals.

New access road, car park [up to 40 cars] and associated screen planting of trees & shrubs.

Upgrade existing trail to lookout with surfaces & grades for ease of disabled access & interpretive signage.

Existing trails to be upgraded as necessary. New signage to be placed for guidance & interpretation. New trails to link existing routes.

The map also shows, in a location adjacent to the Murrumbidgee River, a "proposed river toilet block".

In relation to the river toilet block, the council on 26 March 2002 granted approval to the adjoining owners under s 68 of the Local Government Act 1993 for the construction of a septic tank system. That approval was based on a site and soil assessment for on-site effluent disposal prepared by Mr P Fogarty and dated March 2002. It contains an assessment and description of a "composting toilet system". Essentially, this comprises a composting toilet with a pump-out storage tank for the liquid waste. Its size (and the council's conditions of approval) is based upon 100 visitations per weekend and 20 per day during the week. The report notes that the Australian Standard for Waterless Composting Toilets (AS 1546 part 2) assumes 25 litres of liquid are generated by 100 visits.

There is no dispute that the river toilet block is to be located within 100 metres of the Murrumbidgee River, nor that the river is a natural waterbody.

Having regard to the characteristics of the river toilet block which I have outlined above, it is possible to find, and I so find, that the development so characterised falls within the definition of a sewerage system that temporarily stores sewage, sludge or effluent at a location within 100 metres of a natural waterbody. It may also fall into the other definitions mentioned, but I make no finding in this regard.

However, the finding that the river toilet block is designated development is not the end of the matter because, as appears from the facts I have outlined, the river toilet block was a part but not the whole of the development for which consent was sought. As a consequence, it is necessary to classify or characterise the development for which consent was sought, since the right of appeal under s 98(1) arises only if the objectors, pursuant to the definition in s 4(1), have made an objection "to a development application for consent to carry out designated development". In this connection, the Court of Appeal, in Penrith City Council v Waste Management Authority and Anor (1990) 71 LGRA 376, outlined the proper approach in the following passage from the judgment at p 384: Because the words of the statutory definition may relate to parts only of a development as proposed, it is necessary, in performing the task of characterisation to consider the ' character and extent and other features of the activities' proposed to decide whether, properly classified for legal purposes, they fit into the definition against which they are being measured. This is what Glass JA suggested in Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 at 161. It is what Hope JA said explicitly in CB Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA 270.

The passage from the judgment of Glass JA in Foodbarn v Solicitor-General is a classic and oft-cited statement of the test to be applied where the task is to characterise the development which is proposed. At p 161, his Honour said: It may be deduced that where a part of the premises is used for a purpose which is subordinate to the purpose which inspires the use of another part, it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being used … Where the whole of the premises is used for two or more purposes none of which subserves the others, it is, in my opinion, irrelevant to inquire which of the multiple purposes is dominant. If any one purpose operating in a way which is independent and not merely incidental to other purposes is prohibited, it is immaterial that it may be overshadowed by the others whether in terms of income generated, space occupied or ratio of staff engaged.

Furthermore, as Meagher JA pointed out in Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 at 409, a use which can be said to be ancillary to another use is not thereby automatically precluded from being an independent use of the land. His Honour said that "[I]t is a question of fact and degree in all the circumstances of the case whether such a result ensues or not".

Although the task of characterisation is one in which minds may sometimes differ (see Penrith City Council v Waste Management Authority at p 384), it seems to me that the facts and circumstances of this case yield a ready answer. In my opinion, the river toilet block is a subordinate or ancillary use of the site. The development for which consent was sought was the upgrading, extension and modification of the tourist park, and the river toilet block is ancillary to that use. It is ancillary because its purpose is to serve the visitors and occupants of the tourist park. But, by reason of its scale, design and relationship to the whole tourist park, it cannot be said to be an independent use of the site. It is appropriate to find that the dominant purpose for which the site is to be used is that of a tourist park. Accordingly, I find that the development for which consent was sought was not designated development.

It follows, from my conclusion that the proposed development in this case is for upgrading, extensions and modifications of the tourist park and not for designated development, that the right of appeal conferred by the operation of s 98(1) of the EP&A Act does not extend to the objectors. It is sometimes the case that persons become concerned about a proposed development upon adjacent property, but the rights of third parties to appeal to this Court are limited in the way that I have outlined, and the Court does not have jurisdiction to entertain an appeal which is not properly constituted. Hence, it follows that the class 1 proceedings must be struck out.

In accordance with the foregoing, my formal orders are as follows:

(2) The applicants, Mr G Moore and Ms P Fleming, must pay the costs of the respondent, Yarrowlumla Shire Council in respect of the proceedings, as agreed or as assessed.

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