Wygiren Pty Limited v Kiama Municipal Council

Castle Constructions Pty Ltd v North Sydney Council (2007) 155 LGERA 52 Coffs Harbour Environment Centre Inc v Minister for Planning and Coffs Harbour City Council (1994) 84 LGERA 324 CASES CITED: Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379 Optima Developments Pty Limited v Wyong Shire Council [2005] NSWLEC 649 Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355

APPLICANT Mr C W McEwen SC with Mr Michael Staunton SOLICITORS Wilshire Webb Staunton Beattie LEGAL REPRESENTATIVES: RESPONDENT Mr I J Hemmings SOLICITORS Russell McLelland Brown Lawyers with Kearns & Garside

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT Jagot J: 1 An issue has arisen in this appeal by the applicant against the respondent's deemed refusal of a development application under s 97 of the Environmental Planning and Assessment Act 1979 (the EPA Act). The appeal has been fixed for hearing over eight days commencing on 27 March 2008. The conduct of that hearing, and the assessment of the various merit issues raised by the respondent, will involve the parties in considerable expense. The respondent, however, also contends that the application proposes prohibited development (s 76B of the EPA Act). The parties agreed that the question of the permissibility of the proposed development should be determined in advance of all other issues in the proceedings. Having regard to the substance of the competing arguments about the permissibility of the development and the expense likely to be incurred in resolving the merit issues, I agreed to make an order for separate determination of the permissibility of the development (Pt 28.2 of the Uniform Civil Procedure Rules 2005). The specific questions identified by the parties and the subject of this order are: 1 Is the development proposed in Development Application 10.200.224.1, properly characterised, permissible as a "caravan park" pursuant to Kiama Local Environmental Plan 1996? 2 If the answer to question 1 is "no", is the development prohibited pursuant to the Kiama LEP 1996?

2 The parties agreed all facts necessary to resolve the dispute with respect to the permissibility of the development.

3 The development application relates to a large parcel (just over 100 hectares) between Gerringong and Berry. The application proposes to develop the land for 1040 sites on which manufactured homes will be placed (involving a total estimated population of between 1570 and 2355 people according to the social impact assessment accompanying the development application). The land will be developed in eight stages. In different stages other facilities will also be provided, including a community gymnasium and indoor pool centre, a 330m2 supermarket, four specialty shops, a restaurant and medical centre with nine consulting rooms, three separate community facility buildings located in different parts of the land (north, central and south), recreational facilities (including a bowling green, tennis courts and a croquet area), an internal road network and car parking, and (noting that the parcel is not connected to town water or sewerage services) four water storage dams and associated infrastructure for water treatment and reticulation, as well as wastewater treatment by way of two sewage treatment plants and irrigation areas.

4 The applicant is also willing to accept a condition that two of the sites be set aside for use by caravans only. The development does not make provision for any short-term or tourist accommodation. It does not include shared shower facilities, ironing facilities, a laundry, shower or toilet block, but does include some shared washing machines, clothes dryers and laundry facilities.

5 The land to be developed is zoned 1(a) Rural under the Kiama Local Environmental Plan 1996 (the Kiama LEP 1996). Clause 9(2) of the Kiama LEP 1996 is in the usual form and (except as otherwise provided by the plan) identifies in the accompanying zoning table the development permissible without development consent, the development permisible with development consent, and prohibited development. The zoning table for the 1(a) zone is as follows: 1 Objectives of Zone …

2 Without Development Consent Agriculture (other than animal boarding establishments, intensive horticulture, intensive livestock production, deer farming, goat farming or turf farming); bush fire hazard reduction; environmental protection works; home based child care services; home businesses.

3 Only With Development Consent Any purpose other than a purpose included in item 2 or 4.

4 Prohibited Advertising structures (other than those ancillary or incidental to the use of the land); amusement parks; boarding-houses; bulk stores; car repair stations; commercial premises (other than caravan parks); detached dwelling dual occupancy development; gas holders; hotels; industries (other than cottage industries, rural industries or extractive industries for the winning of sand, clay, soil or turf); junk yards; liquid fuel depots; motels; motor showrooms; plant nurseries; residential flat buildings; refreshment rooms (other than those used in conjunction with a cottage industry); roadside stalls fronting a main road; service stations; shops; timber yards; transport terminals; villa homes and courtyard houses; warehouses. 6 Clause 5 of the Kiama LEP 1996 adopts the Environmental Planning and Assessment Model Provisions 1980 other than certain matters of no relevance. "Commercial premises" is defined in cl 4 of the Model Provisions as follows: "commercial premises" means 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 clause or a building or place used for a purpose elsewhere specifically defined in this clause.

7 Clause 6(1) of the Kiama LEP 1996 sets out definitions including the following: caravan park means land used for the accommodation of caravans or other moveable dwellings within the meaning of the Local Government Act 1993.

8 The Dictionary to the Local Government Act 1993 contains a definition of moveable dwellings as follows: moveable dwelling means: (a) any tent, or any caravan or other van or other portable device (whether on wheels or not), used for human habitation, or (b) a manufactured home, or (c) any conveyance, structure or thing of a class or description prescribed by the regulations for the purposes of this definition.

9 The Dictionary to the Local Government Act also contains definitions of "manufactured home" as referred to in para (b) of the definition of "moveable dwelling" and "manufactured home estate", namely: manufactured home means a self-contained dwelling (that is, a dwelling that includes at least one kitchen, bathroom, bedroom and living area and that also includes toilet and laundry facilities), being a dwelling: (a) that comprises one or more major sections, and (b) that is not a registrable vehicle within the meaning of the Road Transport (Vehicle Registration) Act 1997, and includes any associated structures that form part of the dwelling.

manufactured home estate means land on which manufactured homes are, or are to be, erected.

10 The Kiama LEP 1996 is not the only environmental planning instrument applying to the land. State Environmental Planning Policy No 21 - Caravan Parks (SEPP 21) applies to all land in the State in a local government area (cl 4). The aims of SEPP 21 include "the orderly and economic use and development of land used or intended to be used as a caravan park catering exclusively or predominantly for short-term residents (such as tourists) or for long-term residents, or catering for both" (cl 3(1)(a)). The strategies by which SEPP 21 achieves its aims include "by requiring that development consent be obtained from the local Council for development for the purposes of caravan parks" and "by providing that development consent may be granted that will authorise the use of sites for short-term stays (whether or not by tourists) or for long-term residential purposes, or for both" (cl 3(2)(b) and (c)).

11 Clause 4 of SEPP 21 deals with the relationship between the SEPP and other environmental planning instruments and includes the following provisions: (1) In the event of an inconsistency between this Policy and another environmental planning instrument (whether made before or after this Policy) this Policy prevails to the extent of the inconsistency. This subclause is subject to section 36 of the Environmental Planning and Assessment Act 1979.

… (4) Nothing in State Environmental Planning Policy No 36 - Manufactured Home Estates prevents development consent from being granted pursuant to this Policy for the use of land as a caravan park in which manufactured homes are or are to be installed or placed.

12 Clause 6 of SEPP 21 (as amended by cl 4(3)(b) of State Environmental Planning Policy No 36 - Manufactured Home Estates (SEPP 36)) contains a definition as follows: caravan park means land (including a camping ground) on which caravans (or caravans and other moveable dwellings) are, or are to be, placed or erected.

13 Clause 6 also defines moveable dwelling as having the same meaning as it has in the Local Government Act 1993.

In any environmental planning instrument (whether made before or after this Policy), references (however expressed) to caravan parks or to camping grounds, or to caravan parks and camping grounds, include references to caravan parks, within the meaning of this Policy.

15 Clause 8 of SEPP 21 includes the following provisions: (1) Development for the purposes of a caravan park may be carried out only with the development consent of the Council. (2) Before granting development consent to the use of land for the purposes of a caravan park, a Council must determine: (a) the number of sites (if any) within that land that the Council considers are suitable for long-term residence, within the meaning of the Local Government (Caravan Parks and Camping Grounds) Transitional Regulation 1993, and (b) the number of sites (if any) within that land that the Council considers are not suitable for long-term residence, but are suitable for short-term residence, within the meaning of that Regulation. (3) A Council must not grant development consent to the use of land for the purposes of a caravan park unless it imposes as a condition of that consent a condition specifying the maximum number of sites (if any) within that land that may be used for long-term residence. … (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. (5) This clause does not apply to any land that is authorised to be used for the purposes of a manufactured home estate by a development consent granted pursuant to State Environmental Planning Policy No 36 - Manufactured Home Estates or dedicated or reserved under the National Parks and Wildlife Act 1974.

16 Clause 9 deals with the capacity to subdivide caravan parks for lease purposes and the requirements for any such subdivision. Clause 10 specifies relevant considerations for any "development consent required by this Policy…".

17 SEPP 36 also applies to the land (cl 3(1)). The aims of SEPP 36 include "to facilitate the establishment of manufactured home estates as a contemporary form of medium density residential development that provides an alternative to traditional housing arrangements" and "to provide immediate development opportunities for manufactured home estates on the commencement of this Policy" (cl 2(1)(a) and (b)). The strategies by which SEPP 36 achieves these aims include "by allowing, with development consent, manufactured home estates on certain land on which caravan parks are permitted if the land meets the suitable locational criteria stipulated in this Policy" (cl 2(2)(a)).

18 SEPP 36 contains an inconsistency provision in cl 4 which, in part, is as follows: (1) In the event of an inconsistency between this Policy and any other environmental planning instrument (other than State Environmental Planning Policy No 4 -Development Without Consent) whether made before or after this Policy, this Policy prevails to the extent of the inconsistency.

( 2) Nothing in State Environmental Planning Policy No 21 -Caravan Parks prevents development consent from being granted pursuant to this Policy for the use of land for the purposes of a manufactured home estate.

19 Clause 6 of SEPP 36 specifies that: Development for the purposes of a manufactured home estate may be carried out pursuant to this Policy on any land on which development for the purposes of a caravan park may be carried out, except: (a) land within one or more of the categories described in Schedule 2, or (b) land dedicated or reserved under the National Parks and Wildlife Act 1974, or (c) land within a Crown reserve.

20 The categories described in Sch 2 to SEPP 36 include land in a rural zone (if not adjoining urban uses) and (subject to certain conditions) land in Kiama. The parties agreed that the development of the land for a manufactured home estate is not permissible pursuant to SEPP 36.

21 Clauses 7, 8 and 9 of SEPP 36 contain substantive provisions about the requirement for development consent, the capacity to subdivide manufactured home estates, and matters to be considered in granting consent. Clause 9 specifies relevant considerations for any development consent granted "pursuant to this Policy".

22 Approvals are required under Pt F of the table to s 68 of the Local Government Act to operate a caravan park or camping ground and to operate a manufactured home estate.

23 The Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005 (the Regulation) defines "caravan" as "a moveable dwelling that is designed so as to be registrable as a trailer under the Road Transport (Vehicle Registration) Act 1997, but does not include a camper trailer". Pt 2 of the Regulation sets out detailed provisions applying to the operation of manufactured home estates and to the installation of manufactured homes in manufactured home estates (cl 5). Pt 3 sets out detailed provisions applying 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 not applying to the installation of manufactured homes in manufactured home estates (cl 70). The detailed provisions in Pt 3 include such matters as minimum shower, toilet and laundry facilities per a specified number of sites.

24 The respondent submitted that three matters led to the conclusion that the development is for the purpose of "commercial premises" and not a "caravan park" under the Kiama LEP 1996, and thus is prohibited from being carried out on the land.

25 First, the EPA Act, Kiama LEP 1996, SEPP 21, SEPP 36, the Local Government Act and Regulation constitute a statutory scheme. The definition of "caravan park" in the Kiama LEP 1996 could not be construed in isolation. The scheme (including the requirements for caravan parks in the Regulation) discloses that "caravan parks" are different from manufactured home estates. Considered in the context of the scheme, the development application proposes development for the purpose of a manufactured home estate. "Caravan park" in the Kiama LEP 1996 should not be construed literally and does not include development that is, in substance, a manufactured home estate.

26 Secondly, the definition of "caravan park" in the Kiama LEP 1996 (which refers to land used for the accommodation of caravans or other moveable dwellings within the meaning of the Local Government Act) is inconsistent with the definition of "caravan park" in cl 6 of SEPP 21 (which refers to land (including a camping ground) on which caravans (or caravans and other moveable dwellings) are, or are to be, placed or erected). The inconsistency arises because cl 7 of SEPP 21 provides that the reference to "caravan parks" in any other environmental planning instrument (and, hence, in the Kiama LEP 1996) includes references to caravan parks within the meaning of SEPP 21. That is, the Kiama LEP 1996 is to be read as if every reference to "caravan park" included a reference to land (including a camping ground) on which caravans (or caravans and other moveable dwellings) are, or are to be, placed or erected. Because the definition of "caravan park" in the Kiama LEP 1996 contains an alternative formulation (caravans or other moveable dwellings) but the included definition does not (caravans (or caravans and other moveable dwellings)) there is inconsistency, incompatibility or contrariety (Coffs Harbour Environment Centre Inc v Minister for Planning and Coffs Harbour City Council (1994) 84 LGERA 324 at 331 and Castle Constructions Pty Ltd v North Sydney Council (2007) 155 LGERA 52). This inconsistency is resolved by cl 5(1) of SEPP 21. The definition in SEPP 21 prevails to the extent of the inconsistency so that "caravan park" in the LEP is to be read as meaning land (including a camping ground) on which caravans (or caravans and other moveable dwellings) are, or are to be, placed or erected. The applicant's argument that the land satisfied this definition (because it would contain two caravans as well as the manufactured homes) should not be accepted. The two caravans are a token, and do not alter the true character of the development as a manufactured home estate.

27 Thirdly, having regard to the overall statutory scheme the word "or" in the definition of "caravan park" in the Kiama LEP 1996 should be read as meaning "and". On the same basis as set out above, the two caravans proposed do not alter the true character of the development as a manufactured home estate.

28 The applicant submitted that the only real issue is the proper construction of the definition of "caravan park" in the Kiama LEP 1996. If the development is for the purpose of a caravan park so defined, it is permissible with consent. It is for that purpose because, irrespective of the two caravan sites, the development proposes the use of land for the accommodation of other moveable dwellings (namely, manufactured homes) within the meaning of the Local Government Act. There is no inconsistency with SEPP 21 because cl 7 provides only for the references in other instruments to "include" references to caravan parks within the meaning of SEPP 21. That is, the definition in SEPP 21 adds to or supplements but does not supplant or replace the definition in the Kiama LEP 1996. The "or" in the definition in the Kiama LEP 1996 could only mean "or" and "and/or" not "and". Neither argument leads to impermissibility in any event as the development includes a proposal for two caravan sites. The Regulation could not be relevant to the task of characterisation. SEPP 36 is immaterial. The applicant accepted that the development is not permissible pursuant to SEPP 36. SEPP 36 thus does not facilitate the development, but also does not prohibit it (Optima Developments Pty Limited v Wyong Shire Council [2005] NSWLEC 649 at [48]).

29 I accept that, at one level, the provisions of the EPA Act, the Kiama LEP 1996, SEPP 21, SEPP 36, the Local Government Act, and the Regulation form a statutory scheme concerning caravan parks and manufactured home estates. This acceptance, however, does not lead to the result for which the respondent contends. Rather, it confirms the permissibility of the proposed development under the EPA Act as a "caravan park" given the definition of that term in the Kiama LEP 1996, and the preferred approach of construing legislation in a manner consistent with the language and purpose of all of the provisions of the legislative scheme (Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379 at [36], citing Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] and [78]).

30 The respondent's first and third arguments depend on two steps: (i) discerning a legislative intention in the statutory scheme to treat the use of land for the placement or installation of caravans differently from the use of land for the placement or installation of manufactured homes, and (ii) concluding that, in this context, the provisions of the Kiama LEP 1996 (particularly the definition of "caravan park" as an exclusion from prohibited "commercial premises" in the 1(a) zoning table) cannot be construed literally (in short, so that land used for the accommodation of manufactured homes is not permissible with consent in the 1(a) zone). The second argument also requires consideration of the operation of SEPP 21 and the Kiama LEP 1996.

31 Sections 76 to 76B of the EPA Act identify the three categories of development (development permissible without consent, development permissible only with consent, and prohibited development) by reference to the provisions of environmental planning instruments. The Kiama LEP 1996, SEPP 21, and SEPP 36 are environmental planning instruments and thus capable of regulating development in accordance with ss 76 to 76B. Section 36 of the EPA Act also applies (containing a general presumption that higher order instruments prevail to the extent of any inconsistency unless otherwise provided and subject to the capacity for any later instrument to amend an earlier instrument to provide for the way in which an inconsistency between them is to be resolved). 32 The provisions of, and policy disclosed by, these planning instruments, do not support the respondent's arguments. SEPP 21 commenced on 24 April 1992 and has been amended since. It does not prohibit any development permitted under another instrument. The key provisions of SEPP 21 (cll 8 to 10) require development consent to be obtained for caravan parks, permit subdivision for lease purposes, and impose obligations on the consent authority to consider certain matters in determining whether to grant consent. Accordingly, and for example, the requirement for development consent in SEPP 21 would prevail over any instrument permitting such development without consent. Similarly, the capacity to subdivide caravan parks in cl 9 of SEPP 21 would prevail over any prohibition on such subdivision in another instrument. Clause 7 of SEPP 21 performs an important function in this context. It ensures that, whether or not other instruments define caravan park or camping ground and howsoever those terms may be defined, the provisions of SEPP 21 will operate. Accordingly, consent will be required for any such development. Any such land will be able to be subdivided for lease purposes. A consent authority will have to consider the matters nominated in SEPP 21 when deciding whether to grant consent.

33 The fact that cl 7 achieves this result by making the references in the other instrument include references to caravan parks within the meaning of SEPP 21 is consistent with the overall operation of the State policy. SEPP 21 assumes that other instruments will regulate caravan parks. It imposes an additional layer of regulation and provides greater flexibility in terms of title arrangements for caravan parks. It does not seek to reduce areas of land made available for such development under other instruments.

34 Clause 7 of SEPP 21 does not result in any inconsistency between SEPP 21 and the Kiama LEP 1996. Clause 7 of SEPP 21 takes effect pursuant to cl 5(1) and thus dictates how references to "caravan parks" in other instruments are to be read (that is, as including references to caravan parks within the meaning of SEPP 21). As the applicant submitted, cl 7 could have, but does not, replace the definitions in other instruments. Clause 7 of SEPP 21 also does not result in any inconsistency within the Kiama LEP 1996. The Kiama LEP 1996 happens to contain a more expansive definition of "caravan parks" than SEPP 21 (although other instruments may not). Clause 7 operates in all cases. Contrary to the respondent's submission, there is no inconsistency, incompatibility, contrariety or lack of harmony in circumstances where the prevailing provision (SEPP 21) states that it will operate by way of inclusion. The manifest intention of cl 7, construed in context, is to leave intact references to and definitions of "caravan parks" in other instruments but ensure all such references are taken to include caravan parks as defined in SEPP 21.

35 SEPP 36 commenced on 16 July 1993 and has been amended since. SEPP 36 regulates one category of development only, namely, development pursuant to SEPP 36. In common with SEPP 21, SEPP 36 does not prohibit any development permissible under another instrument. In contrast to SEPP 21, it does not require consent or specify relevant considerations for manufactured home estates generally. Instead, SEPP 36 makes manufactured home estates permissible on certain land, requires consent for such development where the relevant source of permissibility is SEPP 36 and, for any such development, imposes requirements to consider certain matters in granting consent. SEPP 36 does not contain any provision restricting the permissibility of manufactured home estates on land where such development is permissible by reason of another instrument. Clause 8(1) makes this clear. It contemplates in terms that land may be developed for a manufactured home estate in accordance with an instrument other than SEPP 36.

36 The fact that s 68 of the Local Government Act and the Regulation deal with caravan parks and manufactured home estates separately does not support the respondent's approach to the Kiama LEP 1996. The Kiama LEP 1996 commenced on 19 July 1996. The definition of "caravan park" in the LEP specifically refers to land used for the accommodation of caravans or other moveable dwellings within the meaning of the Local Government Act. In other words, the Kiama LEP 1996 elected to define "caravan park" as a place that might accommodate only moveable dwellings other than caravans. The LEP did so against the background of the Local Government Act and Regulation (recognising that the predecessor regulation, the Local Government (Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 1995, also dealt separately with caravan parks and manufactured home estates). The LEP did so presumably recognising that development may involve a use for one purpose to determine permissibility under the EPA Act and yet attract different levels or types of regulation under the Local Government Act. Moreover, the LEP adopted this definition of "caravan parks" after both SEPP 21 and SEPP 36 had commenced, and in a context where those instruments did not override the operation of other instruments insofar as they dealt with permissibility of placing manufactured homes on land.

37 Accordingly, and in contrast to the respondent's submissions, all material contextual and purposive considerations point to giving the provisions of the Kiama LEP 1996 their ordinary meaning. Consistent with that ordinary meaning, development involving the use of land to accommodate manufactured homes (being moveable dwellings other than caravans under the Local Government Act) is development for the purpose of a "caravan park" under the Kiama LEP 1996 and, thereby, is permissible with consent in the 1(a) zone.

38 This conclusion means that it is unnecessary to consider the significance of the applicant's proposed condition to set aside two sites for caravans. Under the Kiama LEP 1996 this proposal is immaterial to the characterisation and permissibility of the proposed development. For completeness I should also note that it was no part of the respondent's argument that the proposed shops, medical and other community facilities were other than ancillary and subordinate to the purpose of using the land for accommodating manufactured homes. The respondent raised an issue about a proposed hostel being an independent use of the land for a prohibited purpose, but this issue was removed by an amendment to the plans of the proposed development by consent.

39 For the reasons given above, the separate questions should be answered as follows: (1) Yes. (2) Does not arise. 40 The matter should proceed to hearing on the dates allocated (commencing 27 March 2008). ****************************

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