Tricare (Hastings) Limited v Tweed Shire Council

Judgment 1This case concerns the construction of a modified staged development consent granted by a local council. 2The applicant, Tricare (Hastings) Limited, owns land at Hastings Point. In 2007 a development consent was granted by the first respondent, Tweed Shire Council. It was modified three times: in 2008, 2009 and 2010. The modified consent was for a seniors living development, in four stages, under SEPP (Seniors Living) 2004, comprising 91 independent living units, 94 supported living units and 67 beds within a high care facility. Stages One, Two and Three comprise construction of buildings and other works. Stage Four does not involve any additional construction but comprises the vegetating of a buffer zone between the buildings and Cudgera Creek to the west. Stage One has been completed. 3At the time of the modified development consent, the land was occupied by Hastings Point Caravan Park, which was licensed for 60 long-term sites, 40 short-term sites and 20 tent sites. Twelve of the long term sites fronted Cudgera Creek (the creek sites). At the present time only six of the caravan park sites still have residents, pursuant to long term site agreements under the Residential Parks Act 1998. They are sites 39, 51, 54, 58, 59 and 60. Five of those sites (all except site 39) are creek sites. The second to fifth respondents reside on four of those five creek sites: 54, 58, 59 and 60. The creek sites are in the buffer zone. The Stage Four vegetating of the buffer cannot be completed until the creek sites are vacated. 4The applicant has given the second to fifth respondents notices of termination under s 102(1) of the Residential Parks Act, on the ground that their sites are to be used for a purpose other than that of a residential site. The applicant is seeking to enforce the notices of termination in proceedings in the Consumer Trader and Tenancy Tribunal (CTTT). The CTTT proceedings have been stood over pending determination of the proceedings in this Court, which the applicant considers will be significant in the CTTT proceedings. In the proceedings in this Court the first respondent has filed a submitting appearance. 5Section 102 of the Residential Parks Act provides: 102 Termination by park owner for change of use (1) A park owner may give notice of termination of a residential site agreement to the resident on the ground that the residential site is to be used (whether by the park owner or some other person) for a purpose other than that of a residential site. (1A) Notice of termination may not be given on the ground of a change of use that requires development consent under the Environmental Planning and Assessment Act 1979 unless development consent for the proposed use has been obtained under that Act. (1B) Notice of termination may not be given on the ground of a change of use that does not require development consent under the Environmental Planning and Assessment Act 1979 unless consent for the issue of the notice has been obtained under section 102AA. (1C) Within 7 days after giving a notice of termination under this section, the park owner must cause written notice of that fact to be given to the Director-General of the Department of Housing. (2) A notice of termination in respect of a residential site must not specify a date for vacating the residential site earlier than: (a) 12 months after the day on which the notice is given, or (b) in the case of an agreement that creates a tenancy for a fixed term, the day following the date on which the fixed term ends, whichever is the later. (3) A resident to whom a notice of termination referred to in subsection (2) is given may, within 60 days after receiving the notice, apply to the Tribunal for an order postponing the date for vacating the residential site. (4) A notice of termination under this section must include the following statements, either in the body of the notice or in a separate document accompanying the notice: (a) a statement to the effect that the resident is not required to deliver up vacant possession of the residential premises until ordered to do so by the Tribunal, (b) a statement to the effect that the resident may be entitled to be paid compensation under section 128 which, if payable, must be paid in full before the resident is required to deliver up vacant possession, (c) such other statements as may be prescribed by the regulations. (5) A resident whose residential site agreement is terminated under this section is entitled to be paid compensation by the park owner in accordance with section 128. (6) Compensation is not payable in respect of a residential site agreement for a residential site situated within a Crown reserve (being an agreement entered into after 16 December 1994) if: (a) the resident is informed (when the agreement is entered into) that there is no right of compensation in the event that the agreement is terminated under this section, and (b) the purpose for which the agreement is terminated is for the residential site to be used for a public purpose other than that of a residential site. 6The amended summons claims the following substantive relief: 1. A declaration that the land on which the development pursuant to the development consent issued by Tweed Shire Council and numbered by it as DA06/0413 and originally dated 14 May 2007 and modified on 18 July 2008, 30 April 2009 and 25 March 2010 (2007 Consent) is to be carried out comprises the whole of the land identified as Lot 1 DP 786570 being land at 87-89 Tweed Coast Road Hastings Point (Land). 2. A declaration that the 2007 Consent approves a change in the use of the Land. 3. A declaration that the carrying out of development pursuant to the 2007 Consent causes a change of use of those parts of the Land known as Residential Sites Numbered 39, 51, 54, 58, 59, 60. 4. Such further or other orders as the Court thinks fit. 7The first two prayers are uncontroversial. Prayer 3 is not in satisfactory form. It is unclear whether it refers to carrying out of the whole development or some stage of it. There is also the question of timing. The issue is whether, on the proper construction of the development consent, the subject residential sites are to be used for a purpose other than that of a residential site and, if so, when. The parties agree, as do I, that in the case of site 39, it is by the end of Stage Two of the development. They disagree concerning the creek sites. In relation to the creek sites, the applicant's primary submission that it is by the end of Stage Three but that the precise timing is unimportant for present purposes. I think that the precise timing is of importance. The respondents submit that it is when those residing in the creek sites cease to reside in them, and that the development consent describes that time as Stage Four but has nothing to say about when it will be. The respondents alternatively submit that, under the development consent, it is upon expiry of the caravan park approval recently obtained, as required by condition 61A of the consent, namely, 20 September 2016. 8In construing a development consent, reference may be made to documents other than the consent itself if the documents, or part of them, are incorporated into the consent expressly or by necessary implication: Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103, (2013) 195 LGERA 182 at [24]-[26], [42]-[47], [156]-[157]. 9In construing the subject development consent, the applicant relies mainly on the site plans for each stage of the consent, which are incorporated in the consent, particularly the Stage Three site plan. The applicant also places some reliance on certain documents incorporated by reference in the consent. The respondents rely on the "Overall Site Plan" for when all stages have been completed, which is also incorporated in the consent, arguing that it shows the creek sites still there when the development is completed. In addition, they rely on conditions 11A, 61A, 62 and 142 of the consent, which they argue provide for the continued occupation of the creek sites. They also place reliance on the September 2013 "Caravan Park and Camping Ground Approval to Operate" issued by the Council to the applicant for a period of three years expiring on 20 September 2016 pursuant to s 68 of the Local Government Act 1993. 10The development consent as modified includes the following conditions and the documents, or parts of documents, referred to in those conditions, which include (but are not limited to) plans and the Statement of Environmental Effects (SEE) that accompanied the development application: 1AA The development shall be completed in accordance with...the Statement of Environmental Effects and Plans... 11A. Amendments and upgrades to the existing caravan park shall comply with Part 5 Recommendations of the Compliance Report - Caravan Park, HMC March 2006 (Report No. 2006.112a) and the stages community maps included in that Report (or any Council approved amended community maps) to the satisfaction of the General Manager or his delegate. 14. In accordance with the Tweed Coast Estuaries management Plan 2004-2008 a buffer between the development and Cudgera Creek shall be provided as indicated on the approved plans. The buffer will comprise a 20 metre core buffer of dense local native vegetation, rehabilitated or replanted as necessary, and ranging from the surveyed top of bank to a line 20 metres to the east; and a residue (up to 30m) outer buffer of planted native vegetation of lesser density which has limited potential for compatible land uses, such as parkland and other recreational uses, and can include asset protection zone and stormwater capture and infiltration functions. 61A. Prior to commencement of any stage of the seniors living development, application shall be made to Council to amend the existing caravan park facilities. Section 68 approval to operate and community map. This application shall be supported by a report from a suitable person which details the necessary changes (roads, site layout, self contained dwellings, amenities, parking, fire hose reels etc) and certifies compliance with the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulations 2005 to the satisfaction of the General Manager or his delegate. An amended Section 68 approval shall be obtained and the amendments to the caravan park completed to the satisfaction of the General Manager or his delegate, prior to commencement of construction of the relevant stage of the seniors living development. 62. Prior to the removal of existing amenities in the caravan park all remaining dwellings on the site shall be self contained to the satisfaction of Director of Environment and Community Services. 126. Prior to issue of an occupation certificate, all works/ actions/inspections etc required at that stage by other conditions or approved management plans or the like shall be completed in accordance with those conditions or plans. 138. Prior to the issue of occupation certificates for each approved stage the Council approved restoration and planting of available sections of buffer zone shall be completed. Landscaping and restoration areas shall be maintained at all times to the satisfaction of Council and for a minimum five-year period following planting and/or weed removal works. Trees identified for retention in the development application plans shall not be removed without separate Council approval. 142. Upon the creek front home sites being vacated the current owners and/or any subsequent land owners are to dedicate (at no cost to Council) 30m of Creek front land to Council (or part of the setback to the Creek not comprising an APZ) to ensure public access to the Creek is available. In addition a formal right of carriageway is to be formed from Tweed Coast Road through the site to enable access to the Creek. 11The Stage One site plan shows new buildings on the eastern half of the land and include the words "Note. Occupied lots shown thus - * ". The plan shows 27 occupied caravan sites, since each is marked with an asterisk. They include the 12 creek sites. The words "existing allotments" are written across these sites. 12The Stage Two site plan shows new buildings on the southern part of the development site and includes the same note as is on the Stage One plan. It shows only the 12 creek sites. It shows them, by asterisks, as occupied. The words "existing allotments" are written across them. Site 39 is among the residential sites that have disappeared. This indicates that site 39 is to be used for a purpose other than that of a residential site by the end of Stage Two. The words "Creek Buffer" are written next to the creek. This is the buffer zone between the development and Cudgera Creek referred to in conditions 14 and 138 of the consent. 13The Stage Three site plan shows new buildings on the north-western part of the development site adjacent to the buffer zone, and a carpark on the former site 39. The words "Creek Buffer" still appear. The 12 creek sites are shown. However, they are no longer noted and asterisked as "occupied lots" and the words "Existing allotments" are no longer written across them. These omissions are the high point of the applicant's argument that the creek sites are to be vacated as residential sites by the end of Stage Three. On the other hand, the creek sites do still appear on the Stage Three site plan, whereas on the Stage Four site plan they do not. 14The Stage Four site plan is relevantly the same as the Stage Three site plan except that the 12 creek sites in the buffer zone are no longer shown. This indicates that Stage Four comprises vegetating the buffer, as required by condition 14, which can only be completed when the 12 creek sites in the buffer are vacated. 15"The Overall Site Plan" includes the words "Creek Buffer" next to the creek, shows the 12 creek sites in that buffer, and contains a note pointing to the 12 creek sites which says "Existing mobile homes". The respondents rely on this note as indicating that at the end of the built development the creek sites are still being used for residential purposes. 16Viewed in isolation, except for a comparison with the Stage Two site plan, the omission of the "occupied lots" note and asterisks in the Stage Three site plan suggest that the creek sites are to be vacated by the end of Stage Three. However, in my view this is outweighed by the cumulative weight of three matters. First, the creek sites still appear on the Stage Three site plan whereas they do not appear on the Stage Four site plan. Secondly, the overall site plan is the overarching plan and notes the creek sites as "existing mobile homes" at the end of the built development. Thirdly, analysis of conditions of the development consent, to which I now turn. 17I construe condition 61A as requiring an approval to be obtained for a diminished caravan park under s 68 of the Local Government Act in order to make way for the seniors development. Condition 62 requires the dwellings in a diminished caravan park to be self-contained to the satisfaction of the designated Council officer. The creek sites are not directly affected by the built seniors development because they are located in the buffer zone. Condition 142 requires that upon the creek home sites being vacated, the area in which they are located is to be dedicated to the council to ensure public access to the creek. 18Condition 14 requires that the buffer zone is to be vegetated. Condition 138 contemplates that their vegetating may occur at any of the four stages as sections of the buffer zone become "available". Obviously, they become "available" as and when the creek sites cease to be used as residences. 19In my opinion, having regard to all these matters, the development consent contemplates that the creek front sites are to be vacated by the end of the period of the s 68 approval required by condition 61A, and incorporates that approval. The s 68 approval was obtained in September 2013 and is for a period of three years expiring on 20 September 2016. It approves long term residences on the six creek sites that are still occupied. Accordingly, in my opinion, under the consent these creek sites are to cease to be used for residential purposes by 20 September 2016 at the latest. 20In reaching this conclusion I have taken into account two further documents (or part thereof) incorporated by reference in the development consent on which the applicant places some reliance. First, the SEE accompanying the development application contains statements to the effect that following the commencement of Stage Three, all remaining long term residents would either need to be relocated or rehoused on site. In my view, this was overtaken by the conditions of the consent and the approved plans. Secondly, condition 11A provides that amendments and updates to the existing caravan park shall comply with Part 5 Recommendations of the Compliance Report - Caravan Park to the satisfaction of the Council's General Manager or his delegate. Part 5 lists the recommended components to be provided or relocated. The chapeau to that list refers to the "operation of the reduced number of sites through Stages 1 to 3". I do not consider that this reference assists the applicant's argument when it is put in context, and that the context tends to weigh against the applicant's argument. The reference to Stages One to Three is explicable by the fact that the recommended components are part of the works that are to be completed in Stages One to Three, not in Stage Four. The context also includes paragraph 4.4 of the report which appears to indicate that the creek sites are still being used for residential purposes at the end of Stage Three, and paragraph 4.5 of the report which states apparently by reference to the end of Stage Four that "Caravan Park has ceased operation". 21In summary, I conclude that the consent contemplates that the creek sites in the buffer zone will be vacated by no later than 20 September 2016, and that site 39 will be vacated by the end of Stage Two. 22Having regard to the terms of s 102(1) of the Residential Parks Act, my conclusions may be expressed in declarations to the effect that under the development consent the subject creek sites are to be used for a purpose other than that of residential purpose by no later than 20 September 2016, and site 39 by the completion of Stage Two. As suggested by the applicant without demur by the respondents, "completion" in the case of site 39 can be given a more precise meaning by referring to the issue of an occupation certificate for Stage Two. 23I am also prepared to make the uncontroversial and uncontested declarations sought in prayers 1 and 2 of the amended summons. 24The respondents have been successful on their alternative submission and I therefore consider that the applicant should pay their costs, subject to hearing any contrary submissions. As I have not heard the parties on costs, I will give them an opportunity to put contrary submissions if they wish to do so.