Sansom v Port Stephens Council

House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; CASES CITED: McCabe v Blue Mountains City Council 145 LGERA 86; Metropolitan Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2006] NSWLEC 57 ; Snowside Pty Ltd v Holroyd City Council (2003) 126 LGERA 279

APPLICANT Jeff Kildea (Barrister) SOLICITORS LEGAL REPRESENTATIVES: Thompson Norrie Solicitors RESPONDENT John Maston (Barrister) SOLICITORS Sparke Helmore

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10155 of 2006 Jeffrey Joseph Sansom v Port Stephens Council

EX TEMPORE JUDGMENT 1 Her Honour: Before me today is a preliminary question of law in these Class 1 proceedings in the following terms: Whether development for the purpose of the storage of caravans and boats on the property known as 290 Nelson Bay Road, Salt Ash, Lot 2 DP 818198, is prohibited within the Rural 1(a) Zone under the Port Stephens LEP 2000.

These Class 1 proceedings are an appeal under s 97 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). 2 The determination of separate questions of law is provided for by Part 31 r 2 of the Supreme Court Rules 1970. As Jagot J observed in Metropolitan Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2006] NSWLEC 57 at [12], care must be taken to ensure that a question posed by parties to litigation is appropriate for separate determination as a preliminary matter. There must be a clear definition of the point of law to be raised and it must be clear that the determination of the separate question is beneficial to the conduct of the proceedings. I consider that the parties have raised a distinct question of law which may be applied to an agreed set of facts about which there is no dispute. If this question is determined against the Applicant the appeal will be at an end. I consider this is a question of law which it is appropriate to consider on a preliminary basis.

3 The statement of agreed facts filed by the parties states that on or about 19 August 2001, Development Application No 16-2001-1162-1 ("the DA") was lodged with the Council by the Applicant in respect of part of the property known as 290 Nelson Bay Road, Salt Ash, Lot 2 DP 818187 comprising the wood and iron shed, access-way and building apron ("the property"). 4 The DA was for the change of use of the property from a rural heritage and farm museum to the recreational storage of caravans and boats. (I note the Applicant agreed that the change of use is for the storage of recreational caravans and boats). In support of the DA the Applicant lodged with the Council a Statement of Environmental Effects dated 29 August 2001. 5 By notice of determination of the DA dated 10 June 2005 the Council determined to refuse the DA.

The property 6 Existing buildings erected on the property comprise the following: (a) a dwelling house with attached carport type structure (b) a shed, which is the subject of the DA, and (c) a golf driving range facility, being an open area with appropriate high fencing

The 2000 LEP 7 On 21 December 2000, Port Stephens Local Environment Plan 2000 ("the LEP") commenced. Under Pt 2 of the LEP the property is zoned 1(a) - Rural Agriculture "A". Within the rural 1(a) zone, commercial premises and warehouses are prohibited development.

8 "Commercial premises" are defined in the LEP as: a building or place used as an office or for other business or commercial purposes, but does not include a building or place elsewhere specifically defined in this Dictionary. 9 A "warehouse" is defined in the LEP as: … a building or place used for the storage of goods, merchandise or materials; (a) pending their sale and distribution to persons engaged in the retail trade; or (b) on a casual or hire basis,

and includes any ancillary showroom. 10 Within the rural 1(a) zone "Tourist Facility" is permitted with consent. "Tourist Facility" is defined in the LEP as follows: Tourist Facility means an establishment providing primarily for tourist accommodation or recreation, or both.

11 The Applicant also relied on a statement of Karen Elizabeth McDougall, the director of Dream 510 Pty Ltd, which operates a business for the storage of caravans and boats at 290 Nelson Bay Road, Salt Ash. The Applicant also relied on letters from users of the storage facility, all dated May and June 2006, attesting mainly to the fact that what they have in storage in the shed is used by them for recreational purposes. Finally, the Applicant relied on photographs of the premises which show boats and caravans inside a large shed. Applicant's submissions 12 The use proposed for the change of use, the storage of recreational caravans and boats, is a tourist facility under the LEP and therefore is permissible in the Rural 1(a) zoning. The development is properly characterised as a tourist facility within the LEP because it provides primarily for the accommodation of tourists in the sense of providing a facility for the storage of their caravans and boats at a convenient location to enable them to engage in recreational activities in the waterways of Port Stephens or elsewhere. 13 "Tourist facility" has a broad meaning and the use of words such as "accommodation", meaning conveniences, and "recreation" suggest a broad interpretation is appropriate. The definition of "accommodation" in the Oxford Concise and Macquarie dictionaries was relied on to support this broad application of the definition. Reference was also made to "accommodation" in the Registered Clubs Act 1976. The change of use is not a "warehouse" and is not "commercial premises", as defined in the LEP. As such, the relevant question for the Court to determine here is not whether the subject site is a tourist facility or a warehouse, but simply whether or not it is a tourist facility. Council's submissions 14 As identified in Snowside Pty Ltd v Holroyd City Council (2003) 126 LGERA 279, it is necessary to characterise the change of use the subject of the development application in terms of the LEP. It is agreed that there is a commercial business being operated at the site, as reflected in the description of the change of use, which comes within the definition of "commercial premises" in the LEP dictionary. The last part of the definition does not apply because the change of use to storage of recreational boats and caravans is not a tourist facility. The change of use does meet the description of "warehouse" also and would be prohibited on this basis. Finding 15 The issue before me concerns the characterisation of the change of use relied on by the Applicant in its development application. As held in Snowside this requires that the use must be characterised in planning terms. The description of the use in the DA will not be conclusive or determinative of the characterisation of a proposed development for planning purposes, see [16], [17]. The change of use proposed is for the storage of recreational caravans and boats. The owners of these items leave them in the shed on the land the subject of the DA for a fee and remove them to go elsewhere to use them. These are clearly commercial premises within the definition of the LEP meaning a building used for business or commercial purposes unless the definition "but does not include a building or place elsewhere specifically defined in this Dictionary" applies. In this case the Applicant argued the definition of "tourist facility" applies so that the change of use is permissible in the Rural 1(a) zone.

16 The Applicant relied on the change of use being for a tourist facility meaning a use providing for both tourist accommodation and tourist recreation. It was argued that "providing primarily for" these, reflecting the words used in the definition in the LEP, means that the tourist accommodation or recreation did not have to take place on the land the subject of the development application but could take place elsewhere.

17 While the Applicant argued that accommodation should be given a broad meaning of "conveniences" the word "accommodation" in a planning instrument is more usually in my view intended to mean lodging, a commonly accepted use of the word in a planning context. Reliance on general dictionary definitions of "accommodation" is of little assistance as a basis for arguing that a broad definition is warranted. In McCabe v Blue Mountains City Council 145 LGERA 86 Jagot J referred at [51] to House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; 106 LGERA 440, where Mason P identified the limits on the use of dictionaries in the search for meaning. Her Honour noted that at [22], [24] and [30] Mason P emphasised that the context of the search is planning law and that environmental planning instruments and consents are concerned with "physical use, environmental impact and amenity". I adopt this paragraph. Reference to the Registered Clubs Act was of no assistance, that being a different statutory context. 18 It is important to consider the context in which "accommodation" appears in the LEP, a planning instrument made under the EP&A Act. "Accommodation" is used elsewhere in the dictionary section of the LEP in relation to bed and breakfast establishment, boarding house, camp, hospital. I agree with the Council's submissions that in these contexts "accommodation" means "lodging for persons". I do not therefore agree with the Applicant's submissions that "tourist accommodation" had a very broad meaning of any conveniences of benefit to tourists.

19 The Applicant still argues that "tourist facility" means providing facilities for tourist recreation and can include the provision of storage facilities for items used by tourists to recreate elsewhere. This interpretation was said to be enabled because of the use of the word '"for" in the definition according to the Applicant's counsel. It was accepted by the Applicant that if the word "for" did not appear then it would be required by the definition that the tourist recreation must take place on site.

20 Of more significance therefore is the issue of whether the definition of "tourist facility" requires that the facility for tourist recreation means that the recreational activity must take place on the land the subject of the development application. The characterisation of the use of land must be determined in the context of the planning purposes of the LEP. The LEP is directed to the use of land the subject of a development application in my view and it would be unusual for a definition of land use to concern use of land elsewhere. While reference was made by the Applicant to the definition of "tourist facility" in the Model Provisions that is also of little assistance given that definition is not in the same terms as that before me and uses terms such as "boat shed" which are not uses before me in the argument I am considering.

21 I agree with the Council's argument that the definition of tourist facility requires that the activity of tourist recreation take place on the land the subject of the development application. The use of the words "providing primarily for" tourist recreation in the definition does not suggest that the recreational use relied on can be elsewhere. The plain meaning of the words "providing primarily for" is that the tourist recreation is intended to take place at the tourist facility, meaning on the land the subject of a development application. In this case the primary use of the land is for the storage of boats and caravans which are taken elsewhere by their owners to use. It follows that I do not consider this use comes within the definition of "tourist facility" but rather should be characterised as "commercial premises".

22 A further argument made by the Council was that the change of use was most accurately characterised as "warehouse", another prohibited use in the Rural 1(a) zone. This argument was opposed by the Applicant. It is unnecessary given my conclusion in relation to tourist facility and that these are commercial premises and therefore prohibited, that this further issue be considered.

23 It follows from my findings that the development for the purpose of the storage of caravans and boats on the property is prohibited within the Rural 1(a) Zone under the Port Stephens LEP 2000.

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