NSW Crown Holiday Parks Land Manager trading as Reflections Holiday Parks Terrace Reserve v Byron Shire Council

Land and Environment Court (NSW)|2021-03-09|Before: Pain J

SOLICITORS: Sparke Helmore Lawyers (Applicant) Marsdens Law Group (Respondent) File Number(s): 19/340060

Judgment on preliminary issue

NSW Crown Holiday Parks Land Manager trading as Reflections Holiday Parks Terrace Reserve (the Applicant) appeals against the deemed refusal of its activity approval application to operate an existing caravan park and camping ground on land known as the Terrace Reserve in Brunswick Heads. The application for the activity approval was made pursuant to s 68 (Pt F) of the Local Government Act 1993 (NSW) (LG Act). The activities in Terrace Reserve occur in the northern, central and southern precincts of the land. Of particular concern is the operation of the southern precinct as a camping ground given the presence of Coastal Cypress Pine Forest, an endangered ecological community.
Activity Approval Application No 88.2019.2.1 received by Byron Shire Council (the Council) on 7 August 2019 (Application) seeks approval to operate the existing caravan and camping ground at the Terrace Reserve, including within the southern precinct. The Applicant commenced these proceedings in Class 2 of the Court's jurisdiction appealing against the deemed refusal of the Application. A preliminary issue has arisen of whether the Applicant can rely on an amended site plan version K (Ex L) dated 18 February 2021 in these proceedings given the provisions of the LG Act and the Local Government (Manufactured Homes Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005 (LG Regulation 2005).

Local Government Act 1993 (NSW)

Relevant sections of the LG Act provide: Chapter 7 What are the regulatory functions of councils? … Division 1 What activities require approval? 68 What activities, generally, require the approval of the council? (1) A person may carry out an activity specified in the following Table only with the prior approval of the council, except in so far as this Act, the regulations or a local policy adopted under Part 3 allows the activity to be carried out without that approval. (2) This section does not apply to the carrying out of an activity specified in Part B of the following Table - (a) on land within the area of operations of the Sydney Water Board under the Sydney Water Act 1994, or (b) on land within the area of operations of the Hunter Water Board under the Hunter Water Act 1991. (3) This section does not apply to the carrying out of an activity specified in item 1, 2, 3, 4 or 6 of Part B of the following Table on land within the area of operations of a water supply authority constituted under the Water Management Act 2000. Table Approvals … Part F Other activities … 2 Operate a caravan park or camping ground … Chapter 7 What are the regulatory functions of councils? Part 1 Approvals … Division 3 Making and determination of applications for approval - generally 79 What is the form of application? An application must be made in the approved form. … 81 What matters must accompany an application? An application must be accompanied by such matters as may be prescribed by the regulations and such matters specified by the council as may be necessary to provide sufficient information to enable the council to determine the application. … 87 Amendment of applications (1) An applicant, at any time before the application is determined, may make a minor amendment to the application and may amend any matter accompanying the application. (2) The making of a minor amendment does not require the application to be further notified to anyone. (3) For the purposes of section 105, the application is taken not to have been made until the amendment is made. … Dictionary … approved form means - (a) the form prescribed by the regulations for the purposes of the provision in relation to which the expression is used, or (b) if no such form is prescribed, the form (if any) approved by the Director-General for the purposes of the provision in relation to which the expression is used, or (c) if no such form is prescribed and no form is approved by the Director-General, the form approved by the council for the purposes of the provision in relation to which the expression is used. …

Local Government (Manufactured Homes Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005

Relevant sections of the Local Government (Manufactured Homes Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005 (NSW) (LG Regulation 2005) provide: Part 1 Preliminary … 4 Definitions (1) In this Regulation - … camp site means an area of land within a camping ground on which a campervan or tent may be installed or, in the case of a primitive camping ground, on which a campervan, tent or caravan may be installed, and that is designated as a camp site by the approval for the camping ground. community map - … (b) in relation to a caravan park or camping ground - means a scale map that accurately shows - (i) the access roads, community amenities and community buildings within the caravan park or camping ground, and (ii) the number, size, location and dimensions of dwelling sites or camp sites within the caravan park or camping ground, and (iii) in relation to a dwelling site or camp site within the caravan park or camping ground, the particular off-site parking space or spaces (if any) designated for use by the occupier of the dwelling site or camp site. … Part 3 Caravan parks, camping grounds and moveable dwellings Division 1 Application of Part 70 Application of Part This Part applies to the operation of caravan parks and camping grounds, and to the installation of moveable dwellings (including manufactured homes) in caravan parks and camping grounds and elsewhere, but does not apply to the installation of manufactured homes in manufactured home estates. Division 2 Approvals and exemptions Subdivision 1 Operation of caravan parks and camping grounds … 72 Matters to be specified in approval (1) In addition to any other matters it must contain, an approval to operate a caravan park or camping ground must specify the following - (a) whether the approval allows - (i) the operation of a caravan park only, or (ii) the operation of a camping ground only, or (iii) the operation of both a caravan park and a camping ground, (b) in the case of an approval that allows the operation of a caravan park - (i) the number, size and location of long-term sites allowed by the approval, and (ii) the number, size and location of short-term sites allowed by the approval, and (iii) the number, size and location of dwelling sites (whether long-term or short-term) to be reserved for self-contained moveable dwellings, and (iv) the location of any off-site parking spaces for dwelling sites, (c) in the case of an approval that allows the operation of a camping ground - (i) whether the camping ground is to be a primitive camping ground, and (ii) in the case of an approval for the operation of a primitive camping ground that designates camp sites, the number, size and location of the camp sites allowed by the approval, and (iii) in the case of an approval for the operation of a primitive camping ground that does not designate camp sites, the maximum number of caravans, campervans and tents that are permitted to use the camping ground at any one time, and (iv) the location of any off-site parking spaces for camp sites, (d) the location of any flood liable land in the caravan park or camping ground. (2) The numbers, sizes and locations referred to in subclause (1) must be specified by reference to a community map. (3) The approval is to specify that, in the calculation for the purposes of subclause (1)(c)(iii) of the number of tents using a camping ground, 2 or more tents occupied by a group of not more than 12 persons camping together as a group are to be counted as only one tent.
Minor amendment of an application before determination is permitted under s 87(1) of the LG Act. Amendment of any matter accompanying the application before determination is also permitted under s 87(1). The Council argued that the change of a document which was part of the Application was not minor and therefore was not permitted under s 87(1). The Applicant submitted that the amended site plan was not part of the Application but was material accompanying it. Alternatively, the amendment was minor and permissible.

Evidence

Evidence relevant to the preliminary issue consists of (i) material lodged with the application form dated 7 August 2019; (ii) documents filed with the Class 2 application; and (iii) evidence sought to be relied on during the hearing, including site plan version K (Ex L).

(i) Activity approval application

The following documents were provided to the Council by the Applicant: 1. a three-page activity approval application form dated 7 August 2019. In the section titled type of activity requiring approval, it states "refer to Attachment A" for road works/driveway and under "description of development" it states, "operate a caravan park and camping ground". Attachment A is a lodgement checklist under s 138 of the Roads Act 1993 (NSW); 2. a document of site particulars providing details of the number and types of sites, available facilities and a list of non-compliances with the LG Regulation 2005; 3. a Reflections Holiday Parks Terrace Reserve site map illustrating the location of caravan and camping sites, roads, facilities and infrastructure in the northern, central and southern precincts; 4. a Reflections Holiday Parks Terrace Reserve visitors' guidelines; and 5. a fire safety certificate dated 23 April 2019.

(ii) Class 2 application

The Class 2 application dated 30 October 2019 consisted of the following documents (Ex A): 1. a cover email from the Applicant to the Council dated 7 August 2019 which states "please find attached Reflections Holiday Parks Terrace Reserve Section 68 Activities and Approval Application and supporting documentation"; 2. a three-page activity approval application form dated 7 August 2019. In the section titled "type of activity requiring approval", it states "refer to Attachment A" for road works/driveway and under "description of development" it states, "operate a caravan park and camping ground". Attachment A is a lodgement checklist under s 138 of the Roads Act; 3. a document of site particulars providing details of the number and types of sites, available facilities and a list of non-compliances with the LG Regulation 2005; 4. a Reflections Holiday Parks Terrace Reserve site map illustrating the location of sites, roads, facilities and infrastructure in the northern, central and southern precincts; 5. a Reflections Holiday Parks Terrace Reserve visitors' guidelines; 6. a fire safety certificate dated 23 April 2019; and 7. an email from the Council to the Applicant dated 4 September 2019 acknowledging receipt of the Application.
Items [9(b)]-[9(f)] are the same documents as in [8(a)]-[8(e)] above.

(iii) Evidence sought to be relied on during the hearing

The Council tendered a bundle of documents (Ex 2) which included the following relevant documents: 1. an email dated 20 February 2020 from the Council to the Applicant requesting further information from the Applicant; and 2. the minutes of the Council's Ordinary Council Meeting dated 17 December 2020. A site plan version E dated 17 August 2020 is attached to the minutes.
During the first day of the hearing the Applicant sought to rely on site plan version K (Ex L) dated 18 February 2021. Site plan version K has three sheets reflecting the northern, central and southern precincts of Terrace Reserve. The management of the southern precinct in particular is contested. Only the sheet that relates to the southern precinct is the subject of discussion.

Applicant's submissions on the preliminary issue

The Applicant seeks to amend site plan version E by site plan version K (Ex L). The Applicant supplied site plan version E in response to the Council's inquiries. The Application consisted of the three-page form only, everything else that followed, including the site map and site plan version E, is material accompanying the Application for the purposes of s 87(1) of the LG Act. The word "minor" in s 87(1) does not qualify an amendment that may be made to the accompanying materials.
Section 87 of the LG Act should be beneficially construed to permit the parties to make amendments. Otherwise s 87(3) would have the effect that any amendment made in accordance with that section would send parties back to the beginning of the entire application process. That is an inconvenient outcome for the parties and the Court.
The case of Radray Constructions Pty Ltd v Hornsby Shire Council (2006) 145 LGERA 292; [2006] NSWLEC 155 (Radray) considered the power to amend a development application pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation). The purpose of the amending power is to enable an applicant to respond to issues identified by the council or objectors, and to encourage a consent authority to solicit a better outcome: Radray [6]-[8]. In Radray, Jagot J permitted an amendment to the development application that was stated to lead to a better outcome than what was originally proposed. The Court did not require the applicant to start the application again in the amended form. Although Radray concerned a development application and the amendment did not have to be "minor", the case demonstrates that the Court's general approach to dealing with beneficial and facultative provisions is to permit amendments that lead to a better outcome.
Section 81 of the LG Act sets out matters relevant to an activity approval application. The regulations can prescribe matters that must be provided and, separately, the council can require matters to be provided. The LG Regulation 2005 does not specify matters that must accompany the approval application, rather it regulates only matters that must be contained in the approval: see cl 72 of the LG Regulation 2005. Therefore, despite s 81 of the LG Act which says an application must be accompanied by such matters as may be prescribed by the regulations, no regulation does that. As allowed for by s 81 of the LG Act, the Council requested further information by letter dated 20 February 2020 (see above in [11(a)). The Applicant subsequently provided site plan version E.
The Applicant supplied the site map, which is handed to people when they arrive and check in at Terrace Reserve, with the application form and not a more detailed site plan because the Application was for an activity (operating a caravan park and camping site) as opposed to a development application. The Court may choose to condition the activity approval on compliance with site plan version K (Ex L).
If the Court is not persuaded that site plan version E is accompanying material and instead forms part of the Application, the amendment sought by the Applicant would still be treated as a minor amendment for the purposes of s 87(1) of the LG Act. The meaning of "minor" in this context has not come before the Court for consideration. It should be interpreted as meaning substantially the same. The Court may consider by analogy the test of "not substantially different" which applies to cl 55 of the EPA Regulation.
In place of site plan version E, the Applicant is seeking to substitute a plan with less camping and caravan park sites in the southern precinct and more in the way of environmental works and protections. It will be substantially the same application since it continues to be an application for a camping and caravan park. The amendment would fall within the definition of "minor" in s 87(1) of the LG Act.

Council's submissions on the preliminary issue

The Council submits that site plan version K (Ex L) is not able to be relied on. It varies from the site map lodged with the Application and is not a minor amendment permitted by s 87(1) of the LG Act.
The Application must incorporate the plan that the Applicant relies on for the purposes of identifying the location, number and configuration of the sites sought as part of the Application to operate a caravan park and camping ground. The site map inherently forms part of the Application.
Clause 72(1)(b) of the LG Regulation 2005 identifies that in the case of an approval to operate a caravan park, the approval must specify the number, size and location of long-term sites, short-term sites and dwelling sites and the location of any offsite parking spaces for dwelling sites. The number, size and location of sites must be specified by reference to a community map (cl 72(2)). "Community map" is defined in cl 4 of the LG Regulation 2005 (see above in [5]). It is therefore fundamental that the Application refers to a map in the form of a scale plan, or a plan is provided that identifies the location, size and configuration of sites. That is, the plan that was lodged with the Application and contained within the Class 2 application.
The Applicant is seeking to move from the site map provided with the Application to the site plan version K (Ex L). Site plan version K (Ex L) has a significantly different configuration in relation to the southern precinct compared with the site map. The Council also considers that site plan version E is part of the Application.
The broad interpretation to the amending power in Radray at [16] should not be applied to these proceedings. The amending power considered in Radray was in respect of a development application and was not constrained by the word "minor" as in s 87(1) of the LG Act.
There is no caselaw on what is a minor amendment as referred to in s 87(1) of the LG Act. The Court can be guided by Futurespace Pty Ltd v Ku-ring-gai Council (2009) 169 LGERA 45; [2009] NSWLEC 153 where Pepper J dealt with a question of whether a proposed amendment to a development application was more than minor at [42].
The following differences between the site map and site plan version K (Ex L) are sufficient for the Court to conclude that the proposed amendment is more than minor and should not be allowed: 1. the number of sites in the southern precinct is reduced from 37 in the site map (and from 38 in site plan version E) to 28 in site plan version K (Ex L); 2. the sites in the southern precinct are significantly changed in terms of their layout and configuration; 3. the physical works proposed for 26 of the 28 sites in the southern precinct now require in site plan version K (Ex L) the installation of plastic "load cells" which was not included in the original site map; 4. the designation of sites for site plan version K (Ex L) is unclear. In the original site map, 25 of the 37 sites were designated as camp sites (defined in cl 4 of the LG Regulation 2005, see above in [5]). It is now suggested that there would only be camp sites in the southern precinct in site plan version K (Ex L), ie, all 28 sites would be camp sites; and 5. an amenities block in site plan version K (Ex L) does not appear on the site map (the Applicant submitted in reply that this amenities block had been excluded on the site map since it was undergoing repairs and at the time was not available for use by visitors at the site and so was not included on the site map but was included on site plan version E).
It is irrelevant that the site plan version K (Ex L) may result in a better outcome.
The Application is not confined to the three-page approval application form. The Application consists of the form plus any documents provided with it. Amending the site map by site plan version K (Ex L) is not a minor amendment and therefore the Court does not have power to allow the amendment under s 87(1) of the LG Act. The Court should deal with the Application on the basis of the site map.

Consideration of the preliminary issue

The Applicant and the Council appeared to be partly at cross-purposes in the course of submissions during the first hearing days in March 2021 in relation to reliance on the site map or the site plan version E. The Applicant focussed on the site plan version E and the Council focussed on the site map. In further submissions at the hearing on 16 April 2021 it became apparent that the site map lodged with the Application in August 2019 and attached to the Class 2 appeal was not central to the argument. Rather, site plan version E is the focus. Site plan version E dated 17 August 2020 was supplied by the Applicant in response to the Council's request for further information about the Application considered at the Ordinary Council Meeting on 17 December 2020. Site plan version E was attached to the minutes of that meeting. The Applicant is seeking to amend site plan version E with version K (Ex L).
At issue firstly is whether site plan version E is part of the Application. As is clear from the documents in evidence listed above in [8] concerning the Application, and the Class 2 application in [9], site plan version E was not supplied with the Application. The documents above in [8] and [9] overlap to a substantial extent. The site map which is the map supplied to visitors to the Terrace Reserve to identify camping and caravan sites and facilities was attached to both. Site plan version E was contained in documents produced by the Council, as set out in [11] above.
Considering the statutory requirements for activity approval applications, s 79 of the LG Act requires that an application under Div 3 must be made in the approved form. "Approved form" is a defined term (subcl (c) in [4] above). The Applicant completed the form prescribed by the Council as defined in (c) in the Dictionary for the purposes of s 79 of the LG Act. Under s 81 such an application must be accompanied by any matters prescribed by the regulations. None are specified in the LG Regulation 2005 or elsewhere. The Council may also specify matters to enable it to determine the application. No express requirements of the Council for the purposes of s 81 were identified to the Court. The Council did seek further information from the Applicant following which the site plan version E was supplied and considered in December 2020.
The LG Act and LG Regulation 2005 regulate what an approval of an application must provide in cl 72(1)(a), (b) and (d) of the LG Regulation 2005. In other words, if I determine an approval should be issued I must include in an approval a community map showing numbers, sizes and locations, as required by subcl (2).
That the approval requirements in cl 72 include a community map does not mean one is required for the purposes of the application. While a map is clearly desirable, it is not compulsory.
Importantly, s 81 of the LG Act is headed "matters that must accompany an application", suggesting the Applicant's arguments are correct, namely that site plan version E is accompanying material. This can be amended, as provided for in s 87(2). There is no qualification about amendments of accompanying material being minor in the LG Act or LG Regulation 2005.
As the Applicant submitted, if the Court approves the activity application site plan versions E and K (Ex L) both satisfy the definition of "community map" in cl 4 of the LG Regulation 2005.
It is unnecessary to determine whether the amendments in site plan version K (Ex L) are minor for the purposes of s 87(1) of the LG Act. No case has had to determine that issue in relation to s 87(1) to date apparently. What is straightforward to conclude is that the changes in site plan version K (Ex L) are appropriate and respond to expert evidence given in the proceedings to date. The differences between the two site plan versions are identified in the Council's submissions summarised above in [26]. The amended site plan version K (Ex L) has been produced following expert consultation in the course of these proceedings. The activity proposed in the amended site plan is intended to reduce the impacts of the existing camping sites in the southern precinct of Terrace Reserve. It is material that should be before the Court and can be relied on by the Applicant. 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. Decision last updated: 22 April 2021

Environmental Planning and Assessment Regulation 2000(NSW)cl 55

Dictionary Local Government (Manufactured Homes Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005(NSW)

Local Government (Manufactured Homes Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005(NSW)

Local Government Act 1993(NSW)ss 68, 79, 81, 87, Dictionary

Roads Act 1993(NSW)s 138

(2006) 145 LGERA 292

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