Vis Visitor Investment Services Pty Ltd v Hawkesbury City Council

Dust Diseases Tribunal Act 1989 s 32 Hawkesbury Local Environmental Plan 1989 Land and Environment Court Act 1979 ss 36(5), 56A, s 57(1) LEGISLATION CITED: Land and Environment Court Rules 1996 Pt 16 r 4(2) Local Government Act 1993 ss 68, 176 State Environmental Planning Policy No 21 - Caravan Parks Supreme Court Act 1970 s 75A(7)

CDJ v VAJ (1998) 197 CLR 172; Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 ; C M Hairis Architects v Waverley Council [2003] NSWLEC 404 ; Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 Healesville Holdings Pty Ltd v Pittwater Council (1997) 97 LGERA 95; Kendell v Carnegie (2006) 68 NSWLR 193 ; CASES CITED: Patrick Operations Pty Ltd v Comcare (2006) 68 NSWLR 131; Port Stephens Council v Sansom [2007] NSWCA 299 ; Roads and Traffic Authority v Perry (2001) 52 NSWLR 222 ; Shao v Hornsby Shire Council (2001) 116 LGERA 462; Shellharbour City Council v Stewart [2007] NSWLEC 727 ; Thaina Town (on Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; Vaughan v Byron Shire Council [2002] NSWLEC 157 ; Vis Visitor Investments Services Pty Ltd v Hawkesbury City Council [2007] NSWLEC 112

DATES OF HEARING: 25 July, 6 and 12 December 2007

APPELLANT: Mr P Tomasetti SC and Mr N Eastman, barrister SOLICITORS: D C Balog and Associates LEGAL REPRESENTATIVES: RESPONDENT: Mr D Wilson, barrister SOLICITORS: A R Walmsley and Co

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

VIS VISITOR INVESTMENT SERVICES PTY LTD (ACN 050 320 146) v HAWKESBURY CITY COUNCIL

JUDGMENT 1 HIS HONOUR: This is an appeal under s 56A of the Land and Environment Court Act 1979 against a decision of a Commissioner of this Court: Vis Visitor Investments Services Pty Ltd v Hawkesbury City Council [2007] NSWLEC 112. As such, the appeal is limited to a question of law. 2 The matter before the Commissioner was a merits appeal under s 176 of the Local Government Act 1993 (LG Act) by Vis Visitor Investment Services Pty Ltd against refusal by Hawkesbury City Council of an application for approval under s 68 of the LG Act for the installation of a moveable dwelling, annex and associated structure at site 68 (the subject site), Hawkesbury Riverside Retreat (the Retreat), 78 Greens Road, Lower Portland. The Retreat has been used as a caravan park since 1967. The council's refusal of consent, on 26 June 2006, was for the following four merit reasons: (i) the proposed dwelling did not satisfy principles of ecologically sustainable development; (ii) it was not in the public interest due to flooding concerns; (iii) it exceeded the maximum floor area; and (iv) the proposed gable roof structure was "beyond context".

3 The Commissioner did not decide the appeal on the merits, although she touched on some flooding aspects at the end of her judgment. The Commissioner decided the appeal by reference to a threshold issue in the following main steps: (a) the parties agreed that the threshold issue was whether development consent under the Environmental Planning and Assessment Act was required: at [7]; (b) in the present case a development consent under the EPA Act is required for the purposes of a caravan park by reason of cl 8 (4A) of the State Environmental Planning Policy No 21 - Caravan Parks (SEPP 21): at [12], [41]; (c) there is no such development consent in relation to the subject site. In particular, a notice of determination of a development application dated 22 December 2000 (on which the appellant relied) does not, on its proper construction, evidence such a development consent: at [42] -[47]; (d) the council's submission was accepted that approval under s 68 of the LG Act for the subject site " cannot be granted as, from the evidence before me, development consent for site 68 has not been granted and the development for the purpose of a caravan park is not being lawfully carried out. On this basis the application must fail ": at [50].

Grounds of appeal 4 The grounds of appeal from the Commissioner's decision are to the following effect:

(a) a development consent under the EPA Act is not required before an application under s 68 of the LG Act is heard and determined; (b) alternatively, the council by its notice of determination dated 20 December 2000 granted development consent to use the whole Retreat as a caravan park; (c) alternatively, the council by its notice of determination dated 22 December 2000 granted development consent to use the whole Retreat as a caravan park. 5 There is an issue as to whether the 20 December 2000 notice of determination was sent to the appellant. It is in wider terms than the 22 December 2000 notice and therefore, arguably, may lead to a different result in the case. If it was sent, then it, rather than the later 22 December 2000 notice, was the effective notice of determination. The 20 December 2000 notice was not mentioned in the Commissioner's judgment although a copy was in evidence. The appellant seeks leave to adduce further evidence on the appeal to prove that it was received. There are issues as to whether, on a s 56A appeal, the Court is empowered to admit further evidence or to make findings of fact.

Relevant Legislation 6 Section 68 of the LG Act provides that a person may install a moveable dwelling on land only with the approval of the council. Section 68 appears in Part 1 of Chapter 7 of the LG Act. 7 SEPP 21 defines a "caravan park" as land on which caravans and other moveable dwellings are, or are to be, installed or placed. Clause 8 of SEPP 21 relevantly provides: (1) Development for the purposes of a caravan park may be carried out only with the development consent of the Council. … (4) The holder of an approval under Part 1 of Chapter 7 of the Local Government Act 1993 to operate a caravan park or camping ground on land must not, without the development consent of the Council, allow a person to occupy a site within that land: (a) for a continuous period of more than 3 months, except as provided by paragraph (b), or (b) for a continuous period longer than the period (if any) for which the person is allowed to be accommodated within the land by an extension that has been granted under clause 19 (6) of the Local Government (Caravan Parks and Camping Grounds) Transitional Regulation 1993, if such a use of that site was not lawful under the Environmental Planning and Assessment Act 1979 when this Policy commenced.

(4A) Except as provided by subclause (4), nothing in this Policy or any other environmental planning instrument requires separate development consent to be obtained for the installation or placement of a moveable dwelling on land on which development for the purposes of a caravan park is being lawfully carried out. … 8 The Retreat is zoned Environmental Protection - Mixed Agriculture (Scenic) under the Hawkesbury Local Environmental Plan 1989. Clause 9 provides that development consent is required for development for the purpose of "identified land uses" in that zone. Clause 5 defines "identified land use" as a land use for which a consent or approval has been granted by the council and that was in operation on the date of commencement of Hawkesbury Local Environmental Plan (Amendment No 108), which was 18 August 2006. On the appeal the council suggested that unless caravan parks come within that definition, they are prohibited. In my view, the contrary is, at least, arguable. The development of the retreat as a caravan park or an individual site for a movable dwelling arguably comes within one of the following definitions in the Hawkesbury Local Environmental Plan of "tourist facilities" or "rural tourist facilities", which are not prohibited but which are permissible with development consent: rural tourist facilities means a building or place in a rural area that is used to provide low scale holiday accommodation, recreation or education for the travelling or holidaying public, and may consist of holiday cabins, horse riding facilities, refreshment rooms or the like.

tourist facilities means a building or place that is used to provide refreshment, accommodation, recreation or amusement facilities for the travelling or holidaying public. 9 The appellant submitted before the Commissioner that the development fell within one or other, or both, definitions but the Commissioner decided that that was not a matter on which she was required to adjudicate: judgment at [16] - [18]. However, the Commissioner held at [5]: "The Retreat has been converted to company title and is owned by, Hawkesbury Riverside Retreat Ltd The applicant has been the on site manager since 1992. The sites are allocated to individual shareholders who own the moveable dwelling or structure on the site that is used, as the applicant states, as a sort of holiday house. The operational approach is not to attract tourists or the travelling public." This finding that a movable dwelling or structure on an individual site is used as a "sort of holiday house" provides an arguable basis for the conclusion that the proposed use is "low scale holiday accommodation" for the "holidaying public" in a "rural area" within the definition of "rural tourist facilities"; or a building or place that is used to provide "accommodation" for the "holidaying public" within the definition of "tourist facilities". The issue was not argued before me and, as it is unnecessary to do so, I express no concluded view.

The Commissioner's judgment 10 The Commissioner defined the threshold issue as follows at [7]: The Statement of Issues before the Court contained 14 issues. The parties agreed that the threshold issue is whether development consent under the Environmental Planning and Assessment Act (EPA Act) is required.

11 The Commissioner, after quoting clause 8 of SEPP 21, said at [12]: The key difference between the parties was whether development for the purposes of a caravan park is being lawfully carried out on the site. The parties agreed that lawfully carried out should be interpreted as meaning operating in accordance with a consent, if, at the time of commencement of the use, a consent was required .

12 The Commissioner described a 2000 development application and accompanying documents as follows: 27 The development application was lodged on 18 April 2000. Under the heading proposed development the boxes use of land/building and erection of a building are ticked. Description is caravan park and proposed use is caravan sites & storage shed .

28 In the Statement of Environmental Effects (SEE) which accompanied the development application, the proposal is described as follows: To provide an additional Twelve (12) caravan sites and Two (2) Storage sheds to the existing caravan park located at 78 Greens Road, Lower Portland being Lot 1 of DP 862897 as shown on revised site plan dated 15 March 2000 attached.

29 Existing approvals and development is described in the SEE as being: 58 Caravan sites approved - operative 1 Stone cottage approved for refreshment room 1 Managers Residence and Shop 4 Storage sheds approved - one constructed 6 boatsheds demolition approved 2 large machinery sheds demolition approved

30 Two plans accompanied the application both dated 15 March 2000. The first plan is entitled the Existing Plan and shows the arrangement of allotments at the Retreat (existing plan). Site 68 is shown on this plan as Lot 47. The second plan is entitled the Proposed Development and annotated to show the proposed new and relocated sites (proposed development plan). The plan also renumbers the sites and shows the subject site as 68. A list of the existing and proposed sites with the amended numbers and the sewerage system also accompanied the application and included site 68. 13 The Commissioner then turned her attention to a 2000 report to council relating to that proposed development: 31 The report to council on 29 August 2000 (the report) describes the proposed development as: i. Additional eleven (11) caravan sites which will be used for relocatable homes ii. Relocation of three (3) of the nine (9) sites approved in M319/98. iii. additional one (1) short-term site iv. 2 colorbond sheds 12m x 7.2m for the storage of various equipment. The proposed additional eleven (11) sites will be located adjacent to the existing access driveway and Greens Road.

The three (3) relocated and one (1) additional caravan site are located adjacent to existing sites that front the Hawkesbury River.

The proposed sheds are located adjacent to sites 29 to 31.

The additional and relocated sites are to be connected to the existing effluent system on the site

Plan attached at appendix "A" shows the relocation of the proposed sites

32 The plan referred to in the report shows existing sites and is annotated to show the new and relocated sites.

33 The report describes the Retreat as being: used as a caravan park since 1967. The existing development on the site includes: · 55 caravan sites approved - operative · 3 holiday cottages · a heritage listed stone cottage with approval to be used as a refreshment room · 1 storage shed · 6 boatsheds · large machinery sheds

34 At the time the development application was lodged and determined the site was zoned Environment Protection Scenic 7 (d) under LEP 1989. Tourist facilities are permitted within this zone. The definition of tourist facilities being the same as the current definition. The report states that The current and proposed development is defined as a tourist facility under HLEP 1989. 14 The Commissioner proceeded to describe the development approval and notice of determination dated 22 December 2000: 35 Council approved the application subject to conditions on 12 December 2000. The Notice of Determination dated 22 December 2000 approves: i. Additional eleven (11) caravan sites; ii. Relocation of three (3) sites; iii. additional one (1) short-term site; iv. two 2 colorbond sheds for storage.

36 The approval is subject to conditions which relevantly include: Advisory

1. The development being carried out in accordance with plan and associated documentation submitted with the development application M619/00 dated 19 April 2000.

21 Any manufactured/relocatable homes installed on the site are to be constructed, installed and maintained in accordance with the Local Government (Caravan Parks, Camping Grounds and Movable Dwellings) Regulation 1995.

37 A stamped plan accompanies the application entitled Proposed Development (stamped plan). This plan is the same as the proposed development plan which accompanied the application but does not include the annotations to show the proposal, including the location of the 12 additional allotments or the relocation of the three existing allotments. The stamp on the stamped plan has the words: Hawkesbury City Council Development Consent Approval No: MA691/00 Approval Date: 22/12/00 Officer: signed 15 The Commissioner then set out the views of the planners called by the parties, Mr Falson and Mr Aday, as to how the 22 December 2000 notice of determination should be construed. Although their views on construction were irrelevant, the third ground of appeal turns not on their views but on whether the Commissioner erred in her construction of the 22 December 2000 notice. 16 Finally, the Commissioner set out her findings as follows: 41 Clause 8(4A) of SEPP 21 does not require a separate development consent to be obtained for the installation or placement of a moveable dwelling on land on which development for the purposes of a caravan park is being lawfully carried out.

42 The applicant relies upon the 2000 Consent and the 2005 Approval as the basis that development for the purpose of a caravan park is being lawfully carried out on site 68. Based on this evidence I do not accept that a valid development consent exists for site 68.

43 Mr Wilson['s] submission, for the council, referred to Auburn Municipal Council v Szabo (1971) 67 LGRA 427 where the Court of Appeal considered that a development approval can be read subject to the details of the development application if those details are incorporated expressly or by implication.

44 In the circumstances of this particular case, the approval includes the written consent, including the conditions. Condition 1 requires the development being carried out in accordance with plan and associated documentation submitted with the development application M619/00 dated 19 April 2000 .

45 The then applicant applied for specific sites which were shown on the proposed development plan which accompanied the application, this did not include site 68. The written consent refers to a limited number of sites which do not refer to site 68 or any other site and can only be understood by reference to the plans or the written documentation which accompanied the application.

46 The stamped plan is not referred to in the consent but I accept forms part of it. Site 68 is shown on the stamped plan. However, I do not accept that this either expressly or by implication would approve site 68 and everything else shown on the plan. The stamped plan cannot be read in isolation but as part of the approval as a whole. I do not accept that the stamped plan can approve matters for which no approval has been sought or no impact assessment undertaken. The stamped plan is limited by the other components of the consent and it cannot regularise a use if no approval has previously been granted.

47 I accept that the SEE and the council report give a clear indication that the Retreat is approved for use as a caravan park and that the sites shown on the existing plan have been previously approved. However, no evidence of these previous approvals or that the sites existed prior to approval being required was placed before me. Mr Azzi, for the Applicant was given the opportunity during the hearing to further examine the consents in Council's bundle (Exhibit 9) to provide a specific development consent for site 68 or a development consent for the Retreat, however, he maintained his position that he relied only on the 2000 Consent and 2005 Approval.

48 The 2005 Approval is an approval under the LG Act to operate a caravan park. This clearly includes site 68. However, I accept Mr Wilson['s] submission that this does not obviate the need for a valid development consent. I do not accept Mr Azzi's submission that Council would only have granted the 2005 Approval if there was a valid development consent. While this would be expected, there is no evidence before me to support this submission.

49 Mr Azzi referred to the Court's power to regularise the use or to estoppel. As stated by Mr Wilson, these are not matters within my jurisdiction.

50 I therefore accept Mr Wilson's submission that approval of the application under s68 of the LG Act for the instillation [sic] of a movable dwelling, annex and associated structure at site 68 cannot be granted as, from the evidence before me, development consent for site 68 has not been granted and the development for the purpose of a caravan park is not being lawfully carried out. On this basis the application must fail. Submissions 17 The appellant submits that:

(a) the Commissioner erred by forming the opinion that absent a development consent for the caravan park she could not grant an approval for the installation of a moveable dwelling on site 68; (b) the Commissioner erred by allowing the council to raise the issue of whether there was a development consent in place for a caravan park when the council had expressly conceded that fact in Issue 2(b) of the Statement of Issues; (c) the Commissioner erred in determining that the 22 December 2000 notice of determination was effective. The council was functus after the earlier 20 December 2000 notice of determination of the same development application; (d) even if the notice of determination of 22 December 2000 was effective, the Commissioner erred in not examining all the development consents granted by the council over time to determine what land use had been granted in the past. Given that she had the exhibits before her and that her decision may be a decision that would operate in rem she was bound not to confine herself to the one document; (e) the Commissioner ought to have recognised that the question was properly one for a judge to determine and referred the question to a judge for determination in accordance with s 36(5) of the Land and Environment Court Act 1979 ; (f) the 20 December 2000, or alternatively the 22 December 2000, notice of determination, properly construed, evidenced a development consent to use the Retreat as a caravan park. The Commissioner did not refer to the documents incorporated by express reference. Had she done so, she would have realised that the council was approving development as part of an existing caravan park. 18 Submissions (b), (d) and (e) above seem to me to go outside the grounds of appeal and therefore I do not propose to entertain them. 19 The council submits that:

(a) before the Commissioner the appellant's case was that unless there was a lawful development in existence, the Court would not grant approval under s 68 of the LG Act . That was why it was determined as a preliminary issue. The appellant relied exclusively on the 22 December 2000 notice of determination; (b) the Commissioner did not fall into error in construing the 22 December 2000 notice of determination or otherwise, and made findings of fact that were open to her; (c) the Court has no power on this appeal to grant leave to the appellant to tender new evidence to prove that it received the 20 December 2000 notice of determination in late December 2000. Alternatively, the Court, in the exercise of its discretion, should decline to receive that evidence. Alternatively the Court should not accept that evidence; (d) if the new evidence of receipt of the 20 December 2000 notice of determination is admitted, the 20 December 2000 notice of determination, on its proper construction, is nevertheless not a development consent for the Retreat to be developed as a caravan park. The application to which that notice related assumed, but did not prove, a pre-existing lawful use as a caravan park. First Ground of Appeal 20 The first ground of appeal is that, contrary to the Commissioner's decision, a development consent under the EPA Act is not required before an application under s 68 of the LG Act is heard and determined.

21 It is necessary to explain how this issue arose before the Commissioner. The Commissioner noted that the council's Statement of Issues filed before the hearing contained fourteen issues and that the parties agreed that the threshold issue was whether development consent under the EPA Act was required: judgment at [7]. In fact, the issue of development consent to use the site as a caravan park agitated before the Commissioner was not identified as an issue in the council's Statement of Issues. On the contrary, as the appellant submitted, the Statement of Issues suggested that there was an existing development consent to use the Retreat as a caravan park because it referred to "the former approval to use the site as a caravan park" and stated that "the existing caravan park is an identified land use in accordance with the definition at clause 5 of the LEP". The Statement of Issues appeared to contend that, in addition, it was necessary to obtain a development consent to put a moveable dwelling on the subject site. That was not argued before the Commissioner nor before me and appears to be erroneous given the terms of cl 8(4A) of the SEPP 21 set out at [7] above. Rather, at trial the council shifted ground by contending that there was no development consent for the site as a caravan park and that the appellant had the onus of proving that there was such a development consent.

22 That was identified as an issue on the first day of the hearing by counsel for the council. He said to the Commissioner that "lawfully carried out" in the concluding words of cl 8(4A) of SEPP21 meant that there must be a development consent for a caravan park and that the council's position was that there was no such consent. Shortly afterwards he said: We take the view therefore that it is the onus of the applicant to satisfy the court that the use for the purpose of the caravan park is lawful in that town planning sense and it will be incumbent upon the applicant to adduce the evidence by way of development consent or otherwise to establish that lawfulness.

The council, having taken that view, in fact asked my friend's instructing solicitor to identify the consent upon which his client relied in order to establish the lawfulness of the use for the purpose of the caravan park and we were advised by letter of 1 November that there were two documents. One was a notice of determination of a development application M619/00 in respect of lot 1 DP 8628/97 dated 22 December 2000 which was a consent for An additional 11 caravan sites - and I'm reading from a document which I'll tender in a moment - An additional 11 caravan sites, a relocation of three sites, additional one short-term site and two colorbond sheds for storage .

None of that which was approved in M619/00 related to the area of land now identified as site 68 and that was the approval and the second document, which we were told the applicant relies on, is an approval to operate a caravan park under Chapter 7 of Part 1 of the Local Government Act 1993 which relates to 64 short-term sites, six holiday cabins, one manager's residence and six associated storage sheds dated 29 June 2005, expiring on 28 June 2010. Now that's under the Local Government Act and that doesn't, as our submission would run, create lawfulness in any town planning sense. 23 The council tendered a bundle of documents from its files (Exhibit 9) and challenged the appellant to find a relevant development consent in it. There was no evidence that it was an exhaustive bundle or as to what investigations had been carried out by the council when compiling it. In that bundle was a 1999 development consent by this Court in a class 1 appeal for an "additional" nine caravan sites. The word "additional" therein and in the 22 December 2000 notice of determination suggests that there was development consent for the existing sites. Condition 17 of that 1999 development consent required an "approval" to operate a caravan park and/or camping ground issued by the council on 15 October 1997 to be updated to reflect the additional nine sites. The last-mentioned "approval" was not in the bundle tendered before the Commissioner but was tendered by the council before me. It was an approval under s 68 of the LG Act. 24 On the second day of the hearing before the Commissioner, counsel for the council sought a concession that "development consent is a pre-requisite to the granting of a s 68 approval". Counsel for the appellant did not make the concession but said: "If development consent is required then development consent is required". The Commissioner raised whether the way forward was to deal with "whether development consent is required as a threshold issue". Both counsel agreed. The Commissioner invited submissions as to whether there was an existing consent, and concluded by indicating that she would now proceed to hear "submissions on the point to do with development consent". Oral submissions followed but have not been transcribed and are not before me. 25 The council's Statement of Issues, the council report referred to at [47] of the Commissioner's judgment and, inferentially, the development consents of 1999 and 22 December 2000 for "additional" sites all suggested that development consent had been given for the subject site. Until the council spoke by the mouth of its counsel at the hearing it never said otherwise. Yet the council succeeded on the basis that development consent for the subject site had not been given. The development consent issue arose in a procedurally unsatisfactory way which creates the perception that the existence of a development consent may not have been fully investigated or adequately addressed, particularly by the appellant.

26 In order to lawfully install the proposed moveable dwelling on the subject site, the appellant requires both an approval to install a moveable dwelling under s 68 of the LG Act and (in the absence of existing use rights) a development consent under the EPA Act. That is common ground on the appeal. There is no mandatory requirement, in my opinion, that development consent under the EPA Act has to be obtained before approval under s 68 of the LG Act, or vice versa. Ultimately, as I understand it, that also became common ground on the appeal. Yet the council made the contrary submission to the Commissioner who accepted it at [50] of her judgment, holding that on that basis the application must fail. That decision therefore was erroneous. That is not to say that the existence or non-existence of a development consent is an irrelevant consideration when determining an application under s 68 of the LG Act on its merits.

27 Upon my inquiring, counsel for the council rationalised the course of events before the Commissioner on the basis that if a relevant development consent did not already exist it could not now be given because a caravan park is now a prohibited use under the Hawkesbury Local Environmental Plan; therefore it would be futile to even consider the s 68 LG Act approval. I have pointed out earlier at [8] - [9] that the Commissioner in effect declined to decide whether it is a prohibited use and I have questioned whether it is prohibited. In any case, that is not how it was put to the Commissioner nor was it the basis on which the Commissioner decided the case. Instead, the proceedings were dismissed on the basis submitted by the council that, as a matter of statutory construction, an approval under s 68 of the LG Act cannot be granted unless a development consent is first granted.

28 The futility rationale now suggested by the council invites comparison with Healesville Holdings Pty Ltd v Pittwater Council (1997) 97 LGERA 95 (CA). In that case there was a class 1 appeal to this Court against a council refusal of development consent for residential subdivision of land with a view to erecting dwelling houses on one hectare lots. During the hearing a question arose as to whether it would be permissible under the Pittwater Local Environmental Plan to erect a dwelling house on a one hectare lot. By agreement between the parties, the appellant was given leave to serve a class 4 application seeking a declaration that it would be permissible, under the Pittwater Local Environmental Plan, to erect dwelling homes on the one hectare lots without council permission. The class 4 application was dismissed. An appeal to the Court of Appeal failed. In the present case no such course, or equivalent course, was taken.

29 The appeal must therefore be allowed on the first ground. It was not submitted that the error did not affect the outcome. The matter will be remitted to the Commissioner for determination in accordance with my decision. The ultimate outcome may be affected in another way if the Commissioner, on the remitter, were to decide that the 20 December 2000 notice of determination was sent to the appellant, as discussed at [40] - [41] below. That notice is the subject of the second ground of appeal to which I now turn.

Second and Third Grounds of Appeal 30 The second ground of appeal is to the effect that the council by its notice of determination dated 20 December 2000 granted development consent to use the Retreat as a caravan park. The third and alternative ground of appeal is to the effect that the council by its notice of determination dated 22 December 2000 granted development consent to use the whole Retreat as a caravan park. As stated at [5] above, there is an issue as to whether the 20 December 2000 notice was sent to the appellant. It is in wider terms than the 22 December 2000 notice and therefore, arguably, may lead to a different result. If it was sent, then it is common ground that it, and not the 22 December 2000 notice, was the effective notice of determination. The Commissioner in her reasons for judgment addressed the latter notice but not the former notice. It is necessary to explain how this came about.

31 Before the Commissioner, the council tendered a bundle of documents from its files (Exhibit 9) and its notice of determination of 22 December 2000 (Exhibit 10) described above at [14]. On the final day of the hearing the Commissioner perceptively noted that in this bundle was a council notice of determination dated 20 December 2000 (not previously referred to in the proceedings) signed by the general manager for the council although not on the council's letterhead, relating to the same development application as the 22 December 2000 notice. In the 20 December 2000 notice the council consented to "a caravan park". It was therefore in wider terms than the 22 December 2000 notice of determination which granted consent to an "additional" 11 caravan sites and relocation of three sites.

32 The Commissioner enquired as to the status of the 20 December 2000 notice of determination. Counsel for the council responded "That was not the determination of the development consent. It was considered at one stage to be but it was not in the notice of determination that you have". Counsel for the appellant said that "We acted on that basis. We received that before we received the determination so it must account [sic count] for something". Counsel for the council, on the other hand, indicated to the Commissioner that the only notice of determination that was sent out was the 22 December notice and that the earlier 20 December notice was not sent out, it was just on the council file. Counsel for the appellant responded "I can't confirm that. Commissioner can we just reserve that question for further clarification". The Commissioner agreed. The 20 December notice was not referred to again. 33 There was no evidence before the Commissioner nor before me that the 20 December 2000 notice was not sent to the appellant. Rather, there was only an assertion to that effect to the Commissioner from the bar table on behalf of the council. Counsel for the appellant did not concur and asked for the question to be reserved. The Commissioner agreed. Counsel for the appellant may be criticised for not returning to the point. Nevertheless, arguably, a prima facie evidentiary inference that the 20 December 2000 notice was sent to the appellant arises from the fact that a copy was in the council's tendered bundle of documents (Exhibit 9 containing other documents which inferentially had also been sent to the appellant), which could not be rebutted, in the absence of agreement, by a mere assertion from the bar table.

34 Be that as it may, the appellant applied on the appeal for leave to adduce further evidence that the 20 December notice of determination was received by the appellant in late December 2000. I admitted this evidence subject to objection. If this uncontradicted new evidence were to be admitted and accepted, it establishes that the statement made to the Commissioner from the bar table on behalf of the council (referred to above at [32]) that the 20 December 2000 notice was not sent, on which the Commissioner appears to have relied, was erroneous, an innocent misstatement.

35 The council submits that the Court has no power to admit further evidence in a s 56A appeal; alternatively, that as a matter of discretion the proposed additional evidence should not be admitted; and alternatively that, if admitted, it should not be accepted. It is unnecessary for present purposes to canvas the details of the council's submission as to why the evidence should not be accepted. It suffices to say that I was favourably impressed by the director of the appellant who gave the further evidence and, if there was power to do so and it was necessary to do so, I would admit and accept it and would conclude that it was sent before the later 22 December 2000 notice.

36 As to whether there is power to admit further evidence on the appeal, s 56A of the Land and Environment Court Act 1979 relevantly provides: (1) A party to proceedings in Class 1, 2 or 3 of the Court's jurisdiction may appeal to the Court against an order or a decision of the Court on a question of law, being an order or a decision made by a Commissioner or Commissioners. (2) On the hearing of an appeal under subsection (1), the Court shall: (a) remit the matter to the Commissioner or Commissioners for determination by the Commissioner or Commissioners in accordance with the decision of the Court, or (b) make such other order in relation to the appeal as seems fit. 37 The terms of a statutory grant of a right of appeal determine the right, if any, to adduce further evidence on the appeal: CDJ v VAJ (1998) 197 CLR 172 at 197 [95]. The Land and Environment Court Act 1979 does not expressly confer power upon the Court to receive further evidence on a s 56A appeal. There is no provision in that Act equivalent to s 75A(7) of the Supreme Court Act 1970, which empowers the Supreme Court to receive further evidence on an appeal. Three decisions of the Land and Environment Court indicate that it is not empowered to hear further evidence on a s 56A appeal. In Shao v Hornsby Shire Council (2001) 116 LGERA 462 at [25] Cowdroy J held: "S 56A of the LEC Act does not empower the Court to hear fresh evidence on an appeal which is confined solely to a question of law. To do so would be to render such appeal a re-hearing which s 56A of the LEC Act does not contemplate". In C M Hairis Architects v Waverley Council [2003] NSWLEC 404 at [3] Pain J held in the context of a s 56A appeal: "it is not appropriate that fresh evidence not before the Commissioner be tendered and considered by the Court on appeal". In Vaughan v Byron Shire Council [2002] NSWLEC 157 at [5] - [7] Lloyd J was inclined to the view that there was no power to admit fresh evidence but preferred to base his decision not to do so on the absence of power in the Court to make findings of fact on a s 56A appeal. If the court was not empowered to make findings of fact, there was no purpose in admitting the further evidence. 38 The conclusion that this Court is not empowered to make findings of fact on a s 56A appeal is supported, by analogy, by decisions of the Court of Appeal relating to s 57(1) of the Land and Environment Court Act 1979 which permits an appeal from this Court to the Supreme Court "on a question of law", and relating to similar provisions under other legislation. In Roads and Traffic Authority v Perry (2001) 52 NSWLR 222 at 235 [63] the Court of Appeal, after reviewing the authorities, held that its jurisdiction under s 57 "is limited to deciding questions of law, and we cannot make findings of fact". This passage was quoted by the Court of Appeal in Patrick Operations Pty Ltd v Comcare (2006) 68 NSWLR 131 at 145 [52]. That case was concerned with an appeal under s 32 of the Dust Diseases Tribunal Act 1989 (NSW) which permits an appeal to the Supreme Court "in point of law or on a question as to the admission or rejection of evidence" and is otherwise in very similar terms to s 57(2) of the Land and Environment Court Act 1979. Giles JA (Ipp and Tobias JJA agreeing) held at 145 [56]: I remain of the view that, if it finds error in point of law, this Court cannot make for itself findings of fact necessary for disposal of the proceedings. That does not mean that, if error in point of law be established, remission to the Tribunal must always occur. The error may be such that, upon correction, this Court can dispose of the proceedings, for example if it be held that as a matter of law the appellant did not owe a duty of care to the respondent. If the findings of fact already made are sufficient for the purpose and there is no question of finding other facts, this Court can pronounce the result in law correct on those facts. If there be error in the admission or rejection of evidence, it may be that this Court concludes that the error did not affect the outcome, and accordingly the appeal is dismissed. These and like possibilities readily explain why s 32 provided that the Supreme Court may remit the proceedings to the Tribunal for determination and may make such other order in relation to the appeal as [it] seems fit . They warrant reading and between the two limbs of s 32(2) as or , and the congruence with s 57(2) of the Land and Environment Court Act to which Handley JA referred in Maurici v Chief Commissioner of State Revenue . But the power to make such other order in relation to the appeal as the Court sees fit does not carry with it making findings of fact. 39 In my opinion, having regard to these appellate authorities, this Court's jurisdiction under s 56A is limited to deciding questions of law, and it cannot make findings of fact. Accordingly, it is pointless to admit further evidence for the purpose of making findings of fact. That suggests that there is no power to admit further evidence on a s 56A appeal, as the cases in this Court referred to above at [37] have held, at least for the purpose of making findings of fact. 40 These principles, if unqualified, make the further evidence tendered by the appellant inadmissible in the appeal and preclude a finding of fact in the appeal as to whether the 20 December 2000 notice of determination was received by the appellant. However, for the reasons indicated at [41] - [42] below, it is unnecessary (a) to apply the principles in the present case; (b) to consider whether there is any relevant qualification to the principles where the purpose of the evidence is to establish that the Commissioner's judgment was based on a mistaken assumption induced by the conduct of the successful party (in the present case by an alleged innocent misstatement that the 20 December 2000 notice of determination was not sent to the appellant); and (c) to consider, alternatively, whether any such contention has to be advanced, not on a s 56A appeal, but on an application to set aside the judgment: Kendell v Carnegie (2006) 68 NSWLR 193 at [44] - [52]; Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 at 511.

41 In my opinion, even if the further evidence is admissible on this appeal, as the first ground of appeal has succeeded and the proceedings are to be remitted to the Commissioner for redetermination, it is preferable that any contest as to whether the 20 December 2000 notice was sent to the appellant and its effect should be determined in the remitted proceedings by the Commissioner rather than for the first time on appeal. 42 Unless it becomes an agreed fact on the remitter that the council sent the 20 December 2000 notice of determination to the appellant, the Commissioner can hear any further evidence on that issue and decide it. In my view, it would be appropriate for the Commissioner to do so given that at the earlier hearing she agreed to reserve the point for further clarification: see [32] above. If the Commissioner were to decide that the 20 December 2000 notice of determination was sent to the appellant, then it is common ground that it, rather than the 22 December 2000 notice, was the effective notice of determination. It is therefore premature to decide the third ground of appeal relating to the latter notice. Costs 43 The appellant seeks indemnity costs against the respondent. The appellant submits that:

(a) the development consent issue was never an issue in the proceedings until it was raised at the hearing by the council; (b) this Court's practice is to raise such matters as preliminary points; (c) the fact that a development consent existed was conceded by the council in its Statement of Issues; (d) the Commissioner made her decision regarding which of the two December 2000 notices might apply notwithstanding that when the question of whether the 20 December notice had been sent to the appellant was raised late in the proceedings, she agreed to the request of the appellant's counsel that the question be reserved for further clarification; (e) the council had granted numerous consents to use the land as a caravan park; (f) it should not have raised the development consent issue belatedly or at all and, in doing so, it put the appellant to difficulty in the preparation and presentation of its case, thus necessitating this appeal; (g) reference was made to Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 401. 44 Part 16 r 4(2) of the Land and Environment Court Rules 1996 provides that in proceedings such as these "no order for the payment of costs will be made …unless the Court considers that the making of a costs order is, in the circumstances of the particular case, fair and reasonable". This rule was recently considered by the Court of Appeal in Port Stephens Council v Sansom [2007] NSWCA 299 and Thaina Town (on Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300. The principles relating to indemnity costs because of unreasonable conduct were recently considered by me in Shellharbour City Council v Stewart [2007] NSWLEC 727 at [22]. 45 It may be said that the development consent issue was raised by the council in a procedurally unsatisfactory way. On the other hand, the appellant agreed to it being decided. Further, the initial grounds of, and submissions in, the s 56A appeal before me did not raise the issue on which the appellant has succeeded. Initially, the hearing before me proceeded on a misapprehension by counsel for the appellant (who did not appear at the hearing before the Commissioner) that the 20 December 2000 notice of determination was the notice the subject of the judgment. That of itself necessitated an adjournment of the hearing before me in order that the appellant's legal representatives could reformulate the grounds of appeal and submissions, and consider whether to seek leave to adduce further evidence that the 20 December 2000 notice of determination had been received by the appellant. After the hearing resumed, the grounds of appeal were amended.

46 In the circumstances, I am not satisfied that any order for costs should be made, let alone an order for indemnity costs. Orders 47 The orders of the Court will be as follows: (1) The appeal is allowed. (2) The matter is to be remitted to Commissioner Tuor for determination in accordance with the Court's decision. (3) The exhibits on the appeal will be retained on the file until order that they may be returned; such an order may be made by Commissioner Tuor.

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