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[2009] NSWCA 39
Court of Appeal (NSW)
2009-02-25
Spigelman CJ, Ipp JA, Tobias JA, Lloyd J
Original judgment source is linked above.
The applicant's submission should be rejected 25 In my view the fact that SEPP 21 did not purport to override any prohibition in an environmental planning instrument of development for the purposes of a caravan park is illustrated by the fact that where any such override was proposed, SEPP 21 specifically so provided: see cl 9(3). 26 Apart from cl 8(1), the other subclauses of cl 8, as the respondent submits, provide for certain matters to be taken into account by a council before or at the time of granting development consent to the use of land for the purposes of a caravan park. To that extent it supplements the matters that a council is required to take into account under s 79C of the Act when determining a development application. 27 Clause 8(4) contains its own prohibition on allowing a person to occupy a site within a caravan park for a continuous period of more than three months without development consent. Clause 8(4A) is predicated upon development for the purposes of a caravan park being lawfully carried out: i.e. with development consent. In such circumstances a separate development consent for installation of a moveable dwelling is not required. None of these provisions purport to permit development for the purposes of a caravan park where this is otherwise prohibited by an environmental planning instrument. 28 The controlling provision of SEPP 21 is cl 8(1), the terms of which I repeat: "Development for the purposes of a caravan park may be carried out only with the development consent of the council." (emphasis added) 29 As the Chief Justice observed during argument, had the word "only" been omitted there may have been some force in the applicant's submissions. But its inclusion is, in my opinion, antipathetic to those submissions. Its effect is to require development consent for the development where otherwise it is not required.
30 Clause 8(1) neither expressly nor impliedly provides that development for the purposes of a caravan park may be carried out with development consent notwithstanding that such development is prohibited by an environmental planning instrument. On the other hand, as the primary judge noted at [20] of his judgment, cl 8(1) would be inconsistent with a provision of an environmental planning instrument which provided that development for the purposes of a caravan park may be carried out without consent. The clause says nothing with respect to an environmental planning instrument which prohibits such development with or without consent. 31 What effect, then, does SEPP 21 have upon the fact that the definition of "tourist facilities" in the Dictionary to the LEP includes a "caravan park"? By force of cl 7 of SEPP 21, a caravan park which otherwise falls within the definition of "tourist facility" includes a "moveable dwelling" which, in turn, includes a "manufactured home" as defined in the Dictionary to the LG Act. 32 But it does not follow from the foregoing that a manufactured home, being part of a development for the purpose of a "tourist facility", may be used as a permanent or long-term residence. Its use still takes its meaning, as the primary judge held (at [13]), from the opening words of the definition of "tourist facility", namely, as "an establishment providing for holiday accommodation". There can be no doubt that a manufactured home as defined may so provide just as holiday cabins, hotels and motels can provide for holiday accommodation. 33 The point is that development for the purpose of a tourist facility comprising manufactured homes (as defined) can only be used for that purpose and may thus only provide for holiday accommodation and not for permanent or long-term residence. Manufactured homes could only lawfully be used for the latter if development for the purpose of a caravan park was permissible under the LEP or by force of SEPP 21. But, as I have indicated, in my view SEPP 21 does not determine the permissibility of development for the purposes of a caravan park: it only provides that such development can only be carried out with development consent. That is the fallacy in the applicant's argument. 34 The foregoing views are reinforced by some recent observations on the effect and operation of SEPP 21 by Jagot J in Wygiren Pty Ltd v Kiama Municipal Council [2008] NSWLEC 56. Although her Honour did not deal with the issue of whether SEPP 21 made permissible that which was prohibited by an LEP, the following remarks of her Honour are pertinent: "32 … SEPP 21 commenced on 24 April 1992 and has been amended since. It does not prohibit any development permitted under another instrument. The key provisions of SEPP 21 (cll 8 to 10) require development consent to be obtained for caravan parks, permit subdivision for lease purposes, and impose obligations on the consent authority to consider certain matters in determining whether to grant consent. Accordingly, and for example, the requirement for development consent in SEPP 21 would prevail over any instrument permitting such development without consent. Similarly, the capacity to subdivide caravan parks in cl 9 of SEPP 21 would prevail over any prohibition on such subdivision in another instrument. Clause 7 of SEPP 21 performs an important function in this context. It ensures that, whether or not other instruments define caravan park or camping ground and howsoever those terms may be defined, the provisions of SEPP 21 will operate. Accordingly, consent will be required for any such development. Any such land will be able to be subdivided for lease purposes. A consent authority will have to consider the matters nominated in SEPP 21 when deciding whether to grant consent. 33 The fact that cl 7 achieves this result by making the references in the other instrument include references to caravan parks within the meaning of SEPP 21 is consistent with the overall operation of the State policy. SEPP 21 assumes that other instruments will regulate caravan parks. It imposes an additional layer of regulation and provides greater flexibility in terms of title arrangements for caravan parks . …" (emphasis added) 35 Not only, as her Honour observes, does SEPP 21 not prohibit any development permitted under another instrument, but also the reverse is true: it does not permit any development that is prohibited by another instrument. SEPP 21 assumes that such other instruments will regulate development for the purpose of a caravan park but imposes an additional layer of regulation where development for that purpose is permitted with consent or is permissible without consent. But that is as far as it goes.
Conclusion 36 It follows in my opinion that the primary judge was correct in upholding the decision of the Commissioner to the effect that the development proposed by the applicant was prohibited. I would therefore propose the following orders: (a) Grant leave to appeal on condition that the applicant file and serve its Notice of Appeal within 7 days of the date of these orders; (b) Appeal dismissed; (c) The applicant to pay the respondent's costs of the Summons for leave to appeal and of the appeal.
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Najask Pty Ltd
Palerang Council
CITATION: Najask Pty Ltd v Palerang Council [2009] NSWCA 39
CASES CITED: Najask Pty Ltd v Palerang Council [2008] NSWLEC 160 Wygiren Pty Ltd v Kiama Municipal Council [2008] NSWLEC 56
(1990) 21 NSWLR 532
(2003) 124 LGERA 208
(2002) 124 LGERA 349
(2001) 115 LGERA 130
(1908) 7 CLR 277
(2006) 148 LGERA 117