VANMELD PTY LTD v FAIRFIELD CITY COUNCIL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KirBY P, HANDLEY and SHELLER JJA 12 March 1992, 4 June 1992 [1992] NSWCA 261 ADMINISTRATIVE LAW — local government — caravan park regulation — requirement to apply for annual licence — owner of established caravan park with existing use rights applies for licence — licence refused — refusal not related to matters personal lo applicant or relevant to facilities of the caravan park — refusal on ground of propensity of land to be flooded — whether a proper reason within the contemplation of the law to ground refusal of annual licence — Held: (Handley JA, Sheller JA concurring; Kirby P dissenting): Upon a true construction of the legislation and its purposes, the ground was relevant to the exercise of the licence granting power and such exercise was lawful — Municipal Council of Sydney v Campbell 1925 AC 338 (PC); Eaton and Sons Pty Ltd v The Council of the Shire of Warringah (1972) 129 CLR 270; R v Toohey (Aboriginal Land Commissioner!: ex parte Northern Land Council (1981) 151 CLR 170 considered. LOCAL GOVERNMENT — caravan park regulation — provision made for licensing of occupiers — provision to refuse to grant licence for "sufficient reasons" — established caravan park with existing use rights made subject to supervening laws for regulation of caravan parks — application for annual licence — licence refused on ground that land prone to flooding — whether generality of power to refuse licence should be confined to non planning matters relevant to an annual licensee and the facilities provided in such a park: (By Handley JA, Sheller JA concurring; Kirby P dissenting): The general statutory discretion should not be read down and it provided a proper basis for refusal of the licence in the circumstances. The Queen v The Australian Broadcasting Tribunal: ex parte 2HD Pty Ltd (1979) 144 CLR 45 applied. STATUTES — construction — power to refuse licence for caravan park — power expressed in very wide terms — "other sufficient reasons" — whether power should be read down to preserve existing use rights in respect of land and to protect established rights to private property — proper approach to the construction of such legislation — whether presumption that legislation does not diminish established rights to property previously acquired — discussion of presumptions applicable in circumstances of established property rights and existing use rights — (per Handley JA) Such existing use "rights" are not rights at all, at least not "rights" conferred by statute. Eaton and Sons Pty Ltd v The Council of the Shire of Warringah (1972) 129 CLR 270 considered; (per Kirby P diss): Legislative provisions should be interpreted so as to be in consonance with basic principles of the common law protecting civil rights, principles of equity and established property rights, guaranteed by statute. Minister for Lands and Forests and Anor v McPherson and Anor (1990) 22 NSWLR 687 (CA) referred to. WORDS and PHRASES — "other sufficient reasons". Environmental Planning and Assessment Act 1979, s107, s108(3) Local Government Act 1919, s289F, s289G, s289H, s289J, s313. 0.71 made under the Local Government Act 1919 (1986). State Environmental Planning Policy No 21 — Moveable Dwellings (1986). 2 UNREPORTED JUDGMENTS Kirby P This appeal concerns the application to an established caravan park ofa new legislative scheme for the control of caravans, tents and other moveable dwellings and of the land upon which such items are placed. Established caravan park is refused an annual licence. The new legislation commenced operation in December 1986. At that time, Vanmeld Pty Ltd (the appellant) operated a caravan park at 154 Hollywood Drive, Landsvale. It was known as "Parkside Caravan Park'. The park was within the boundaries of the Fairfield City Council (the respondent). Pursuant to the new legislative scheme, the appellant applied to the respondent for a caravan park licence in respect of its park. Years earlier the necessary development approval had been secured from the respondent for the development of the site as a caravan park and it was so developed. Before the subject legislation commenced the appellant thus enjoyed an "existing use right" to continue to use the land for the purpose of a caravan park. So much was conceded below. It was accepted by Cripps J in the Land and Environment Court. It was not disputed in this Court. In Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 (CA) McHugh JA, with the concurrence of Hope and Samuels JJA explained (at 309f) the rationale behind the law's respect for existing use rights: "The object of 'existing use' provisions in town planning legislation is to permit the continuation of the use of land for any purpose for which it was used immediately before the passing of the legislation even though the terms of the legislation prohibit that purpose wholly or partly or upon conditions. The rationale of these saving provisions is that it is unjust to deprive an owner of the right to use his land for an existing purpose. Because "existing use" provisions are incompatible with the main objects of the legislation of which they form part, the courts have had to develop principles which reconcile the right of owners to have the full benefit of the existing use of land with the right of the local authority to enforce the conflicting objectives of town planning legislation. The courts have done so by refusing to categorise an "existing use" so narrowly that natural changes in the method of using the land or carrying on a business or industry will render an existing use right valueless. At the same time, the courts have been concerned not to categorise the purpose of an existing use so widely that the land or premises could be used for a prohibited purpose which was not part of its use at the commencement of the legislation." By s107 of the Environmental Planning and Assessment 1979, there is conferred on the owner of land to which an "existing use right" attaches, unless otherwise expressly provided by that Act, a right to continue such existing use. By s108(3) of the same Act,Parliament has made it clear that such right is to continue, and is not to be derogated from, by any environmental planning instrument. The intention that there should be no derogation from the right to continue the existing use of land for the purpose of a caravan park is also confirmed by CL7 of State Environmental Policy No 21 Moveable Dwellings (SEPP 21), made under the foregoing Act. SEPP 21 is one of the three components of the new legislative scheme for the regulation of caravan parks in the State. Having conducted its caravan park for several years, being possessed of the "existing use right" protected by the Environmental Planning and Assessment Act, the appellant doubtless expected that its application for an annual licence to continue to operate its premises as a caravan park would be granted. But it was URJ VANMELD PTY LTD v FAIRFIELD CITY COUNCIL (Kirby P) 3 not to be so. The respondent refused the application. In a letter, notable for its brevity and the peremptory dismissal of the licence application, the senior health and building surveyor of the respondent communicated the reasons for the refusal of the application in these terms: "(a) The use of the site as a Caravan Park is incompatible with the designated flood liable category of Fairfield Council's Flood Plain Management Policy, ie 'High Hazard Floodway' ; (b) The location of the site within the Flood Plain poses a threat to human life and possible destruction of possessions of residents of the Park; (c) The Park does not comply with the requirements of Ordinance 71." In equally short terms, the appellant was advised: "(i) The Caravan Park being unlicensed is operating illegally and as such its operation is to cease immediately; (ii) Council is not able to offer any alternative sites within the City to relocate the Caravan Park." I pause to note the result of the Council's decision, if it is upheld. By the use of the power to license caravan parks annually, the Council has effectively destroyed the utility of the appellant's "existing use" right. Indeed, from a right protected by statute to continue the existing use, the Council has effectively converted the appellant's lawful use of its land to illegal conduct. The respondent offered the appellant no alternative sites. The result is therefore the destruction of a business and the effective deprivation, without compensation, of the economic utility of the land as a caravan park. Such use, as the letter commanded, was "to cease immediately". Presumption of respect for existing property rights. Our law is built upon a respect for private property rights. Such rights are upheld by the common law, as (in some respects) by constitutional and statutory provisions. The statutory provisions designed to safeguard the continuance of "existing use rights" and the large body of law which has grown around those provisions, recognises and enforces the common law presumption against the alienation or alteration of proprietary rights. Such rights are not to be lost as a result of supervening legislation, unless such legislation is expressed in clear and unambiguous terms. The foregoing principle is often explained by the presumption that Parliament will not deprive people of rights to real and personal property which they enjoy, except by legislation expressed in clear terms. See eg Potter vy Minahan (1908) 7 CLR 277, 304; Wade v New South Wales Rutile Mining Co Pty Ltd (1969) 121 CLR 177, 185; American Dairy Queen (Queensland) Pty Ltd v Blue Rio Pty Ltd 147 CLR 677 (1981) 37 ALR 613, 616 (HC) and C J Burland Pty Ltd v Metropolitan Meat Industry Board (1968) 120 CLR 400. This presumption is reinforced where, as here, Parliament has taken the trouble expressly to preserve such rights (as in the case of "existing use rights") under the Act and where no compensation is afforded for what is, in effect, although not in legal form, an expropriation of valuable economic interests by a decision of a governmental authority. Having regard to the statutory guarantee of "existing use rights" under the Environmental Planning and Assessment Act, the appellant complained that it would be an "odd result" if the licensing power granted by Ordinance 71 made under the Local Government Act 1919 as part of the scheme for the regulation of caravan parks, permitted a local government authority to deprive a land owner of the utilisation of its existing use right otherwise attaching to its land. Such a result would be especially surprising when it was recalled that one component of the 4 UNREPORTED JUDGMENTS new legislation on caravan parks, SEPP 21, CL7, also expressly preserved such rights. The appellant therefore urged that the provisions of CL13(1) of the Ordinance, empowering a council to refuse to grant an application for an annual licence, should receive an interpretation consonant with the preservation of common law rights to property and with the statutory preservation of those rights under s107 and s108(3) of the Environmental Planning and Assessment Act and CL7 of SEPP 21. Presumptions about the meaning of legislative provisions are tools for use in the daily performance by courts of the task of giving meaning to the language of legislation. But in the end, (subject to any applicable constitutional provisions) a court's duty is to that language) as properly interpreted. Re Bolton and Anor: ex parte Beane (1987) 162 CLR 514, 518. No constitutional protections for property rights safeguard the appellant here from the operation of legislative provisions made by, or under the authority of, the State Parliament. The fact that such licensing provisions may seem unjust, may circumvent the established rights otherwise guaranteed or may give rise to administrative action that is insensitive or amounts to a form of expropriation are all irrelevant. Proprietary rights, including existing use rights, do not render the owner immune from supervening regulation, eg for more stringent fire or flood protection which the lawmaker validly provides. If the law so provides, courts must give effect to the law. Nevertheless, I accept the argument of the appellant concerning the approach which this Court should take to the elucidation of the meaning of the applicable law. It is an approach defensive of basic rights. There is nothing unusual in adopting such an approach. Where important civil liberties are involved, provided by the common law, courts will presume that Parliament intended to respect the basic principles of that law. See Cooper v Wandsworth Board of Works (1863) 14 CBNS 180, 194-5; 143 ER 414, 420. Similarly, statutory provisions are now interpreted so as to be consonant with the principles of equity, unless there is an unambiguous contrary intention in the words of the relevant enactment. See Minister for Lands and Forests and Anor v McPherson and Anor (1990) 22 NSWLR 687, 699 (CA). To like effect, I believe, it requires clear language to deprive the owner of an existing use right in its property which the Environmental Planning and Assessment Act has otherwise sought to preserve and continue. Handley JA, in his reasons which I have had the privilege of reading in draft, calls attention to a passage in the judgment of Stephen J in Eaton and Sons Pty Ltd v The Council of the Shire of Warringah (1972) 129 CLR 270, 294. In that passage, Stephen J expressed doubts that existing use rights were really properly described as "rights" or "privileges" acquired or accrued under a statutory scheme. This is not an observation which is part of a rule of the High Court in Eaton, binding on this, or any other court. It could not be so. It was expressed in a dissenting judgment which must be disregarded when deriving the holding for the purpose of the law of precedent. See Federation Insurance Limited v Wasson and Ors (1987) 163 CLR 303, 314. It was offered as clear obiter, at the end of Stephen J's judgment. It was not even a necessary part of his Honour's reasoning to his own conclusion. The case concerned entirely different statutory language. And it predated the Environmental Planing and Assessment Act 1979, with its express guarantee in the language of s107, addressed to the owners of land to which an existing use attaches. URJ VANMELD PTY LTD v FAIRFIELD CITY COUNCIL (Kirby P) 5 It is unprofitable in this appeal to engage in a juristic debate about the Hohfeldian classification of an existing use right as a "right" or a "privilege" or otherwise. Even if Stephen J were correct - and the "right" derives its source not from the statute but from the common law entitlement which the statute preserves and protects the value of the "right" cannot be denied. To deny it would fly in the face of economic and social reality. It would be to defy the experience of courts which regularly have to engage in excruciating analysis to elucidate the claims and counter claims of parties as to the existence and extent of such "rights". See eg The Council of the Municipality of Ku rin gai v Mobil Oil Australia Ltd Court of Appeal unreported 3 June 1992. Parties certainly treat existing use rights as extremely valuable. It is too late for courts now to pretend that they are not. The justification which authorises courts, by techniques of statutory construction, to protect basic rights to liberty (and by analogy property) was recently considered in this Court. See Yuill v Corporate Affairs Commission of New South Wales (1990) 20 NSWLR 386, 402 (CA). There is no need for elaboration of that justification here. It lies in the proper function of courts in a Parliamentary democracy. Accordingly, my approach to the problem of construction before the Court requires me to consider whether, by the standards established and notwithstanding the presumptions to which I have referred, the scheme of legislation here does have the effect which the respondent maintains. Cripps J held that it did. The appeal to this Court from his Honour's decision lies only on a point of law. This Court is thus not concerned with the merits of the decision of the Council to refuse the appellant's application for a licence. Its only concern is whether an error of law occurred in his Honour's construction of the legislative provisions upon which that refusal rests. The new legislative scheme to regulate caravan parks. In order to understand the appellant's submissions it is necessary to examine the three parts of the legislative scheme by which the new system of control of caravan parks and moveable dwellings came into operation. The first part is Division 5B of Ptl0 of the Local Government Act. That Division comprises s289E to s289J of the Act inclusive. The need for a licence to use land for the accommodation of caravans, tents and other "moveable dwellings" is created by s289F. S289G authorises the making of Ordinances for: "... controlling and regulating, and prescribing standards for, moveable dwellings and land used for the placement of moveable dwellings." Specific reference is made in s289G(2) to the provisions with which an Ordinance, made under the section, may deal. The only paragraphs which relate to the requirements for the land (as opposed to objects on the land) are: "(c) 'standards of development in relation to land used or developed or intended to be used or developed for the placement of moveable dwellings'; (d) programmes for works to be carried out on any such land to secure compliance with any such standard." The power of a Council to issue an annual licence is conferred by s289H of the Act. By s289H(2) the Council is required to satisfy itself as to the necessity for consent under the Environmental Planning and Assessment Act 1979. Any such consent must be obtained before the issue of the licence. In this sense it is a pre-requisite to the annual licence being granted. The control of moveable dwellings is, by s289J(1), removed from the building regulation part of the Local 6 UNREPORTED JUDGMENTS Government Act (Ptl1). One provision in that Part (s313(1)(k)) requires the Council concerned to take into account: "... whether the site is subject to flooding or tidal inundation." The second part of the legislative scheme is SEPP 21. By CL2, that Policy came into effect on the day on which O.71, made under the Local Government Act took effect. By CL7(1), as previously stated, caravan parks or camping grounds in existence on the day on which the policy took effect were exempted from the controls imposed by the Policy. That provision therefore expressly exempted the appellant's park. To that extent, it reinforced the preservation of "existing use rights" preserved under the Environmental Planning and Assessment Act. The third part of the legislative scheme is O.71 The general provisions concerning licensing are to be found in Pt2 of the Ordinance. CL10 provides (relevantly): "Except as is provided in CL11, the terms of the licence or renewal shall be for twelve months." There are a number of indications that the licence contemplated by O.71 is one personal to the applicant for licence, rather than one which runs with the land, as such. Thus, CL9 deals with procedures to be followed if a person wishes to acquire a licence in respect of land already licensed. Upon cancellation of an existing licence, the former licensee is entitled to a refund of the licence fees. By CL12(6) the Council is empowered to require a licensee to carry out a programme of works for the improvement of the licenced premises. The terms of the grant of power to refuse annual licenses. The grounds upon which an application for a licence may be refused are set out in CL13. It was common ground in the appeal to this Court that the ultimate question of law for consideration was the proper interpretation of that clause. It provides: "The council may refuse to grant an application for a licence or renewal of a licence if it is satisfied that (a) the land in respect of which the application is made does not conform to, or is not capable of complying with, the requirements and standards prescribed by this Ordinance (or with those requirements and standards as modified in accordance with this Ordinance); (b) conditions to which the licence is, or to which the Council has determined the licence should be subject would not be met; (c) There are other sufficient reasons why the applications should not be granted." It was also common ground, both before Cripps J and in this Court, that the only applicable source of power upon which the Council's refusal to grant an application for a licence to the appellant might be sustained was CL13(1)(c). By the terms of that paragraph the "other... reasons" must be "sufficient". What will be "reasons" and specifically "sufficient" reasons will depend upon the purposes for which the power has been granted to the Council by the lawmaker. As in the case of any other statutory power, the donee of the power (in this case the council) is not uncontrolled in the exercise of its powers. The controls are imposed both by the terms of the grant of power and by the implied limitation that the power will be exercised only in furtherance of the purposes for which the power was granted. Cf Municipal Council of Sydney v Campbell 1925 AC 338 (PC); R v Toohey (Aboriginal Land Commissioner: ex parte Northern Land Council (1981) 151 CLR 170, 193; Padfield v Minister for Agriculture 1968 AC 1016, 1032, 1053 (HL). URJ VANMELD PTY LTD v FAIRFIELD CITY COUNCIL (Kirby P) 7 There is no express provision in Division 1 Pt4 of the Ordinance to support a reference to the propensity of the land to flooding as a factor for consideration in determining that "sufficient reasons" exist why an application for a licence should not be granted. However, this is scarcely determinative of the question in hand. It would have been impossible for a lawmaker to foresee every circumstance relevant to the grant or refusal of an annual licence. The language by which the residual power to refuse the annual licence is granted could hardly be more general in its terms. It is in Division 1 of Pt4 of the Ordinance that the land and site requirements are specified. Thereafter, the Part specifies the standards to be applied in respect of facilities and services to be provided in a caravan park. The only express reference in the Ordinance to flood prone land appears in CL91. This clause provides that neither an "unregisterable movement dwelling" nor a "rigid annex" shall be installed on flood liable land, except with the approval of the Council. In considering such an application, the Council is directed to have regard to the principles contained in the Flood Plain Development Manual. The detailed and specific provisions of CL91 are in marked contrast to the provisions of CL13(1)(c). So far as the lawmaker addressed the question of flooding expressly, this was done elsewhere in terms of considerable precision and not in the context of the grant or renewal of an annual licence. I therefore reach the critical question. In the light of the presumptions affecting the task of statutory construction to which I referred at the outset of these reasons, should the generality of the language in CL13(1)(c) be read down? Specifically, should that paragraph be confined so that an interpretation is adopted which does not deprive the owner of an existing caravan park of "existing use rights" which are valuable in economic and other terms and which are otherwise preserved by the Environmental Planning and Assessment Act? This question presents another: Is there a construction of CL13(1)(c) which would give the paragraph appropriate work to do, conformably with its very wide language, whilst withholding its operation from an empowerment of the Council, by annual licence provisions of the Ordinance, effectively to put at nought the "existing use rights" which would otherwise be enjoyed by planning law? Upon the answers to these questions I would differ with hesitation from the conclusion of the Chief Judge of the Land and Environment Court. The generality of the language of CL13(1)(c) is self evidently abundant. Taken on its face, the phrase "other sufficient reasons" would, out of its statutory context, undoubtedly cover a consideration Such as the tendency of the land, in respect of which a licence was sought, to be subjected to flooding. Plainly, such a tendency presents potential dangers, not only to the health and safety of those living in "caravans, tents and other moveable dwellings" and other structures in a caravan park but also to public officials and others who, in the event of flooding, may be required with little warning to proceed to the park for their rescue. On the other hand, it is the very generality of the language of CL13(1)(c), in the context of an annual licence, personal to the licensee, which seems to call out for a more restrictive construction. To these considerations must be added the apparent inconsistency with that part of the integrated legislative scheme contained in SEPP 21, CL7(1). Also relevant is the consideration that the wider construction effectively destroys the statutory preservation of "existing use rights". Together with the presumptions to which I have referred, a narrower construction is required. In a real sense CL7 becomes pointless for the 8 UNREPORTED JUDGMENTS preservation of existing use rights if the broad language in CL13(1)(c) of the Ordinance entitles the Council to look to general planning matters (such as the tendency to flooding) when considering an annual licence application. Having regard to the provisions in the Local Government Act and O.71 dealing with what might be called generically "planning" matters, I am inclined to agree with Handley JA, for the reasons which he gives, that there is no rigid demarcation between the Environmental Planning and Assessment Act and SEPP 21 (on the one hand) and the Local Government Act and O.71 (on the other). I do not believe that one can derive from the respective provisions of those several laws a cleAr delineation 80 that the first two only are concerned with planning and the last with other matters relevant to caravan parks. On this point I agree generally with what Handley JA has written. I also agree with his Honour that it is important not to fall into the trap of assuming that express provisions in CL91 of O.71 relating to flood prone land takes that topic out of CL13(1)(c) altogether. I would not rest my decision upon that uncertain canon of construction known as expressio unius. I further acknowledge that a statutory discretion, expressed in general language, is not, for that reason alone, to be read down. I am mindful of the need for courts faithfully to uphold the grant of wide powers to officials conferred by Parliament. It seems obvious enough, from the passage of the integrated scheme of new laws for caravan parks that Parliament, and the lawmaker as authorised by Parliament, deliberately set about introducing a new regime for what were plainly seen to be the special problems of caravan parks: problems affecting their operation, facilities and those in charge of them. So much emerges from the terms of the laws themselves. It also appears from the Second Reading Speech of the Minister for Local Government (Mrs Crosio) when the Local Government (Moveable Dwellings) Amendment Bill 1986 and the Land and Environment Court (Moveable Dwellings) Amendment Bill 1986 were introduced into Parliament. However, when the Minister's speech is read carefully, it reveals that, at least as seen by the Executive Government, the concern of the integrated legislative scheme was to respond to the changing nature of caravan parks from places in which short term accommodation was provided to places where long term residence was becoming quite usual, doubtless by reason in part of the housing shortage. The Minister said: "Serious problems have resulted, first, for citizens residing long term on caravan parks who have most unfortunately been tagged as involved in some doubtful practice. In turn they have had difficulties in obtaining many rights that others take for granted. Second, councils have been in a quandary about what may be permitted and what standards to require. In addition, the general public, suppliers of products for caravan parks and park proprietors have been confused in their respective planning. It is abundantly clear that an improved and contemporary approach to the situation is needed.... The shortcomings of the existing law are overcome in the bills, though certain desirable existing features are retained. The approach taken allows for adequate ongoing controls to ensure the interests of those people who are presently disadvantaged. The Government is vitally interested in extending to citizens residing on caravan parks the right to expect adequate standards of amenity and improved security which they deserve. This will also present the opportunity to extend to them the usual range of consumer protection and other rights available throughout the community as soon as practicable. At the same time, the interests of proprietors of existing URJ VANMELD PTY LTD v FAIRFIELD CITY COUNCIL (Kirby P) 9 parks have not been overlooked. They will be given adequate time, at least three years, to meet appropriate aspects of modern standards of amenity. A fair balance between the effects of upgrading on proprietors and residents will be observed. T he new s289G will provide for a code of standards in the form of an ordinance and lists the aspects which an ordinance may prescribe to ensure standards of amenity, controls and procedures necessary for an effective and efficient licensing system. The fine details of the code have not yet been finalised. However, the sorts of detail involved will include technical aspects such as site sizes, setbacks and respective standards of facilities for long and short term use. Arrangements for a levy to cover costs of the scheme, research, et cetera as well as requirements for upgrading, and conditions of occupancy between residents and proprietors will be covered by the code. So, too, will various other matters usually associated with a licensing scheme. Proposed new s289H deals with the issue of licences. It recognises the need for observance of any development consent or requirement under the Environmental Planning and Assessment Act. It recognises also the controls necessary to preserve overall public interest arising from the Government's decision to include Crown lands in the scheme." (emphasis added). See New South Wales Parliamentary Debates (Legislative Assembly) 16 April 1986, 2046-7. When 0.71 is studied it applies, as I read it, to the health, comfort and welfare of occupiers of caravans in licensed caravan parks. But it does not, as it seems to me, set out to determine (or provide the means of determining) whether the land in question will be permitted to be used as a caravan park at all. Thus, the licensing scheme is directed at facilities such as the provision of proper services, the maintenance of toilets, bathrooms and laundries and garbage disposal, lighting, layout and so forth. This interpretation of the purpose of licensing is borne out when it is remembered that the licence is personal to the licensee and is provided annually. By inference, this is because licensees with their personal characteristics change and the subject matters of a licence are likely to vary over such a time frame, as facilities run down or otherwise fail to meet the standards set. Annual licence concerns matters altering annually. In such circumstances, it would be extraordinary if the power to provide an annual licence to a specific person were available to be utilised not for matters personal to the applicant or relevant to the year of the licence but for planning considerations having absolutely no connection with the particular applicant and equally unconnected with the time for which the licence was sought. The tendency of the land to flooding is, to put it bluntly, not something likely to change in the space of a year at least in the ordinary circumstances of caravan park lands. If the construction now under appeal is confirmed, each annual application for renewal of the caravan park's licence will become, potentially, a general inquiry on planning grounds as to the suitability of the subject site to be used as a caravan park. As the appellant pointed out, a licensed caravan park operator could, reliant upon its "existing use rights" expend substantial capital on upgrading the facilities of a caravan park. Yet it might face local pressure to close the park where, over time, the use of surrounding land has changed. It would be a surprising result of the annual licensing power that it should extend to permitting a broad-based planning inquiry every twelve months. Such a consequence could 10 UNREPORTED JUDGMENTS only derive from giving meaning to CL13(1)(c) out of its context and without regard to the backdrop of protected "existing use rights" for which Parliament has expressly preserved. Approached in the context of the subject matter of the Ordinance in which it appears and in the light of the purposes of that Ordinance as clear from its terms and as explained by the Minister who foreshadowed it in introducing the statutory amendments, CL13(1)(c) providing for licenses should be confined as Ihave described. This does not leave the Council without powers to deal with the suggested problems of flooding. But those powers must be exercised in a planning (and not a licensing) context. They are subject to the protections which the Environmental Planning and Assessment Act give to caravan park owners such as the appellant, who have established existing use rights. If the powers prove insufficient it is for Parliament to deprive the owners of those rights, not the local authority purportedly exercising an annual licensing power conferred on it for different purposes. Parliament can readily deprive people of property rights. There are no rights to property or otherwise which are protected in this State from Parliament's regulation. See BLF v Minister for Industrial Relations (1986) 7 NSWLR 372, 402 (CA). But rights will not be lost except by clearly applicable law, clearly expressed. That is what is missing here. Conclusion: refusal of licence miscarried. In my view, the preferable construction of CL13(1)(c) of the Ordinance confines the exercise by the respondent of the power to refuse a licence to considerations personal to the applicant and relevant to the annual period for which the licence may be granted. Because the tendency of the land to be subject to flooding falls outside this class, and because it was a matter taken into account in refusing the licence in this case, the discretion reposed by the Ordinance in the respondent miscarried. The appellant was therefore entitled to the relief it sought in its appeal to the Land and Environment Court. By its notice of appeal, the appellant advanced on the alternative argument. This was that the construction affirmed by Cripps J rendered the provisions of CL13(1)(c) of the Ordinance beyond the power of the lawmaker by reason of the limits expressly stated or implied in s289G of the Local Government Act. However, this argument was abandoned during the hearing. It can therefore be ignored. Although there were transitional statutory provisions to provide for the introduction of the new legislative scheme, the appellant did not really upon them. I have therefore refrained from considering them. Before I leave this case, and as mine is a minority opinion, I would wish to say something about an issue which was not raised at the trial and therefore not argued in the appeal. As I have pointed out, this was not a case of expropriation in the literal sense. No property was acquired by a public authority. Yet, clearly enough, the refusal of the licence to the appellant effectively terminated the appellant s established business as a caravan park. The conduct of that business was, by reason of the refusal, rendered illegal under the Local Government Act. This occurred without the planning inquiry which would have accompanied a planning decision under the Environmental Planning and Assessment Acct. It also appears to have occurred without an opportunity being afforded to the appellant to be heard before the licence was refused. Refusal of a licence to a person with a legitimate expectation to be heard before such refusal occurs will ordinarily be a departure from the requirement of procedural fairness in the administration of a statutory licensing system. Cf R v Electricity Commissioner ex party London Electricity Joint Committee (1920) Ltd 1924 1 KB 171, 205 (CA); Tiernan v URJ VANMELD PTY LTD v FAIRFIELD CITY COUNCIL (Handley JA) 11 Newcastle City Council (1954) 19 LRG (NSW) 313, 319; Dunlop v Woollahra Municipal Council 1975 2 NSWLR 446, 474f (SC); Twist v Randwick Municipal Council (1976) 136 CLR 106, 113. This consideration may not have been explored in the Land and Environment Court because it was considered beyond the statutory jurisdiction of the Court in an appeal such as was before Cripps J. Cf National Parks and Wildlife Service and Anor v Stables Perisher Pty Ltd (1990) 20 NSWLR 573, 577, 585 (CA). However that may be, it was not dealt with by his Honour and has not been determined in these proceedings. Orders For the foregoing reasons the orders which I would favour are: 1. Appeal allowed; 2. Set aside the order of Cripps J in the Land and Environment Court of 31 October 1991 dismissing the appeal to that Court; 3. In lieu thereof, order that the appellant's appeal to the Land and Environment Court be upheld and that the respondent's decision to refuse the applicant's application for a caravan licence be set aside; 4. Order that the respondent pay the appellant's costs of the appeal but have, if otherwise so qualified, a certificate under the Suitor's Fund Act 1951 in respect of such costs; and 5. Order that the proceedings be returned to the Land and Environment Court for provision to be made for the costs before that Court and for any consequential orders. Handley JA This is an appeal pursuant to s57(1) of the Land and Environment Court Act from a decision of Cripps J who had dismissed an appeal to that Court from a decision of the Fairfield City Council pursuant to Division 5B of Ptl0 of the Local Government Act. The appeal to this Court lies only on a question of law. On | December 1986 a new statutory scheme regulating the use of land for a caravan park came into force. The scheme comprised Division 5B of Pt10 of the Local Government Act, O.71 made thereunder, and State Environmental Policy No 21 - Movable Dwellings made under the environmental Planning and Assessment Act. On 28 June 1991 the appellant applied to the Council under O.71 for a licence to operate a caravan park on land known as 1/5 Bindaree Street and 154 Hollywood Drive, Lansvale. On 19 July 1991 the Council refused the application on the grounds that the land was a high hazard floodway and that the establishment of a caravan park on the site posed a threat to life and property of occupants of the park and to persons required to rescue them in times of flood. The Council also maintained that the park did not comply with certain requirements under the Ordinance. The applicant appealed from the refusal to the Land and Environment Court. The appellant's principal contention before that Court, which was repeated before this Court, was that the Council was not entitled to have regard to the susceptibility of the land to flooding when considering an application for a licence pursuant to CL13 of the Ordinance. The Council relied upon CL13(1)(c). CL13(1) provides: "The council may refuse to grant an application for a licence or renewal of a licence if it is satisfied that: (a) the land in respect of which the application is made does not conform to, or is not capable of complying with, the requirements and standards prescribed by this Ordinance (or with those requirements and standards as modified in accordance with this Ordinance); 12 UNREPORTED JUDGMENTS (b) conditions to which the licence is, or to which the council has determined the licence should be, subject would not be met; (c) there are other sufficient reasons why the application should not be granted." In terms CL13(1)(c) is unrestricted. However the appellant submitted that the council in exercising its discretion to grant or refuse a licence may not consider whether the land should be used as a caravan park at all. In particular it may not take into account the fact that the land is prone to flooding and the associated risks to human life and property. That issue, it submitted, is one that is dealt with, or is to be dealt with by or pursuant to the Environmental Planning and Assessment Act and Planning Policy No 21. In the present case the appellant does not have a development consent for use of the land as a caravan park. However CL7(1) of Planning Policy No 21 provides that it does not require any such consent because the land was being used as a caravan park on 1 December 1986. In the appellant's submission the Council cannot deprive it of the benefit of its existing use rights by refusing a licence for a caravan park under O.71. Accordingly the land's susceptibility to flooding was an irrelevant and extraneous consideration and the Land and Environment Court had erred in law in holding otherwise. These submissions raise two questions of statutory construction. The first is whether the Local Government Act, the Environmental Planning and Assessment Act, and Planning Policy No 21 provide exhaustively and exclusively for the suitability or otherwise of land for use as a caravan park to be considered, if at all, at the planning stage. If so and a relevant development consent has been granted or is not required because of existing use rights that matter cannot be considered or further considered in the administration of the licensing regime under O.71. S289H(2) of the Local Government Act provides: "The council shall not issue a licence unless it is satisfied that (a) any consent required under the Environmental Planning and Assessment Act 1979 for the use of any land in accordance with a licence and with any conditions... with respect to the licence has been given; and (b) the use of any land in accordance with a licence and with any such conditions will not contravene the provisions of that Act or of any environmental planning instrument within the meaning of that Act, insofar as that Act or any such instrument applies to the land." Since the appellant did not require a development consent and the use of the land for a caravan park was not otherwise unlawful under the environmental planning legislation it was submitted that the Council's powers under of the Ordinance were limited to regulating the existing use and did not extend to prohibiting it. In my opinion Division 5B of the Local Government Act and 0.71 do not evince an intention that the suitability of the land for use as a caravan park pursuant to existing use rights is irrelevant to the exercise of the Council's discretion to grant or refuse a licence under CL13 of O.71. Put another way, Division 5B and the Ordinances do not, in my opinion, evince a legislative intention that such town planning considerations should be taken into account by the council, if at all, in the exercise of its powers as a consent authority under the Environmental Planning and Assessment Act and must otherwise be ignored. It is clear that no attempt has been made in terms to exclude town planning questions from consideration by a Council on an application for the grant or renewal of a caravan park licence. Indeed this general proposition was not URJ VANMELD PTY LTD v FAIRFIELD CITY COUNCIL (Handley JA) 13 challenged by senior counsel for the appellant. S289G(2)(c) of the Act provides that an ordinance may make provision for or with respect to "standards of development in relation to land used or developed or intended to be used or developed for the placement of movable dwellings". Such standards of course are commonly the subject of subordinate legislation made under the Environmental Planning and Assessment Act although there described as "development standards". S289H(1) which operates to control the use of land for the placement of movable dwellings is itself a town planning provision. S289J provides that an ordinance may make provision for the suspension of inconsistent legislation, parliamentary or subordinate, and private covenants where they would prohibit or restrict the use or development of land as a caravan park in accordance with the ordinance. Clearly this is a further town planning provision. Planning Policy No 21 provides in CL7(3): "Tn considering whether to grant consent to the development of land for the purposes of a caravan park or camping ground, the consent authority shall have regard to the provisions of O.71 made under the Local Government Act 1919". This demonstrates that O.71 is itself a town planning provision. There is therefore no rigid demarcation between the matters dealt with by the Environmental Planning and Assessment Act and Planning Policy 21 on the one hand and those dealt with by Division 5B of Pt10 of the Local Government Act and O.71 on the other. Accordingly general town planning considerations are not extraneous to the exercise of a Council's functions under O.71. I therefore turn to CL13(1)(c) on which Cripps J based his decision to dismiss the company's appeal. The appellant submitted that the liability of the land to flooding cannot be a "sufficient reason" for its application for a caravan park licence to be refused, and that this was a totally irrelevant and extraneous consideration. The appellant relied upon CL91 of 0.71 which makes express, but limited, provision in relation to flood liable land. The appellant submitted that within O.71 CL91 makes exclusive provision for or in relation to such land and accordingly that topic was not within CL13(1) (c) at all. In other words the appellant submitted that the expressio unius rule applied. However the High Court has frequently warned of the need for caution before applying this rule. See O'Sullivan v Farrer (1989) 168 CLR 210 at 215 and the cases there cited. In Houssein v UnderSecretary of Industrial Relations (1982) 148 CLR 88 at 94 the Court said that the rule was "not of universal application and applies only when the intention it expresses is discoverable on the face of the instrument. " In my view of CL91 does not disclose any such intention and a Court is not required to read down CL13(1)(c) in the manner suggested. There remains the appellant's submission that on its true construction CL13(1)(c) does not empower a council to refuse a licence because the subject land is liable to flooding. This was an invitation to the Court to read into the general language of CL13(1)(c) some unexpressed limitation. A Court must be very careful indeed before accepting such a submission. The High Court has indicated on many occasions that a general statutory discretion is not to be read down in this way. Thus in The Queen v The Australian Broadcasting Tribunal Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49 the court said: "Here the problem lies in ascertaining what are the proper limits of the discretion. In the absence of some positive indication of the considerations on which a grant or refusal.... is to depend, the discretion is 'unconfined except insofar as the subject matter and the scope and purpose of the statutory enactment 14 UNREPORTED JUDGMENTS may enable the court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view'..." (emphasis supplied) Subsequently in O'Sullivan v Farrer at 216 the court said: "Where a power to decide is conferred by statute, a general discretion, confined only by the scope and purposes of the legislation, will ordinarily be implied if the context (including the subject matter to be decided) provides no positive indication of the considerations by reference to which a decision is to be made." (emphasis supplied) Some guidance of course is to be obtained from the other provisions of CL13(1) and indeed from the other parliamentary and subordinate legislation dealing with caravan parks which came into force on 1 December 1986. However consideration of both the general scope of this legislation and the detailed provisions to which we were referred has failed to persuade me that it contains any positive indication that a perceived risk to the life and property of occupants of the caravan park and to persons required to rescue them in times of flood are "definitely extraneous to any objects the legislature could have had in view". 0.71 contains detailed provisions directed to securing the health, comfort and welfare of occupiers of caravans in licensed caravan parks. It deals with such matters as caravan density, the provision of proper services, lighting, the construction and maintenance of toilets, showers and laundries, fire protection, garbage disposal, the lighting and ventilation of caravans, the need for them to be weatherproof, their internal structure, the separation of kitchens and minimum air space in bedrooms. It would be quite extraordinary if the Ordinance made provision for all of these matters and yet the Council, as the licensing authority, was required by law to close its eyes to the fact that an otherwise model caravan park would be located on flood prone land which exposed the occupiers to significant risks of death or injury from foreseeable flooding. In my opinion CL13(1)(c) does not require such an extraordinary result. The appellant relied strongly on its existing use rights which enabled it to continue using the subject land as a caravan park without the need for any development consent from the Council under the planning legislation. It submitted that CL13(1)(c) should not be given a construction which would enable the Council to destroy that valuable right without compensation by simply refusing the grant of a licence for the same purpose. In my opinion, for the reasons given above, this submission fails as a matter of statutory construction. However there are other more general reasons why it should be rejected. The juristic nature of the existing use "right" was explained by Stephen J, with the approval of McTiernan and Walsh JJ, in Eaton and Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270 at 294 where he said: "T doubt whether it is proper to regard as a 'right' or 'privilege' acquired or accrued under the County Scheme what is no more than the relaxation of a prohibition imposed by that very Scheme. The Scheme took away the liberty at general law of occupiers of land to use their land as they saw fit but in relation to the appellant's land enabled the renewed exercise of that liberty in a very qualified way if a consent from the responsible authority was first sought and obtained. To describe that situation as one in which a right or privilege had accrued to or been acquired by the appellant under the Scheme appears to me to be a misuse of language; the effect of the Scheme when a permit is issued under it is merely that users of relevant land are in part remitted to their former liberties at general law." URJ VANMELD PTY LTD v FAIRFIELD CITY COUNCIL (Sheller JA) 15 However in view of this Court's decision in Harris v Hawkesbury Shire Council (1989) 68 LGRA 183 at 190 - 191 it may now be accepted that for many purposes a consent operates to confer a privilege. An existing use "right" is similar to an owner's "right" under a development consent. Neither confers "positive authority" to use the land for a particular purpose. Compare Commercial Radio Coffs Harbour Ltd v Fuller (1986) 161 CLR 47 at 56 - 7. Such a "right" merely relaxes a prohibition which would otherwise exist under the planning legislation, leaving the owner subject to whatever restrictions may exist under other applicable legislation. The appeal should be dismissed with costs. Sheller JA I have had the benefit of reading the judgment of Handley JA and agree with it and the orders therein proposed. The appeal should be dismissed with costs. Counsel for Appellant: MG Craig QC / E Graham Instructed by: Jennifer E Darin Counsel for Respondent: SB Austin QC / R Morling Instructed by: Sly and Weigall