> Land and Environment Court of New South Wales CITATION : Evans v Maclean Shire Council and Another [2003] NSWLEC 352 APPLICANTS Sandra Evans Robert Evans PARTIES : FIRST RESPONDENT Maclean Shire Council SECOND RESPONDENT Integrated Site Design Pty Ltd (for Primrose Levi Pty Ltd) FILE NUMBER(S) : 10913 of 2003 CORAM: Talbot J Development Consent :- whether in respect of designated development KEY ISSUES: Designated Development :- whether sewerage works subservient to caravan park use Jurisdiction :- Court to determine whether designated development is a jurisdictinal fact wehre objector appeals Environmental Planning and Assessment Act 1979 s 77A, s 98 Environmental Planning and Assessment Regulation 2000 Sch 3, cl 29 LEGISLATION CITED: Local Government Act 1995 s 68 Rural Fires Act 1997 Local Government (Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 1995 cl 43, cl 45(1) State Environment Planning Policy 71 - Coastal Protection Austotel Pty Ltd and Another v Franklins Selfserve Pty Ltd (1989) 16 NSWLR 582; Besmaw Pty Ltd v Sutherland Shire Council and Another (2003) 127 LGERA 413; Combwood Pty Ltd v Baulkham Hills Shire Council (1995) 86 LGERA 319 ; Corporation of the City of Enfield v Development Assessment Commission and Another (2000) 199 CLR 135 ; Foodbarn Pty Limited and Others v Solicitor-General (1975) 32 LGRA 157; Harden Bergia Pty Limited v Baulkham Hills Shire Council (2002) 125 LGERA 273; CASES CITED: John Fairfax & Sons Ltd v Police Tribunal of New South Wales and Another (1986) 5 NSWLR 465 at 476; Momentum Architects Pty Ltd v Hornsby Shire Council (2002) 123 LGERA 207 Logan-Bald Partnership v Byron Shire Council (2002) 123 LGERA 225; National Parks and Wildlife Service and Another v Stables Perisher Pty Ltd (1990) 20 NSWLR 573; Penrith City Council v Waste Management Authority and Another (1990) 71 LGRA 376; Slack-Smith and Another v Director-General of the Department of Land and Water Conservation (2003) NSWLEC 189, unreported; Thomson Australian Holdings Proprietary Limited v The Trade Practices Commission and Others (1980-1981) 148 CLR 150 ; Timbarra Protection Coalition Inc v Ross Mining NL and Others (1999) 46 NSWLR 55; Waltons Stores (Interstate) Limited v Maher and Another (1987-1988) 164 CLR 387 DATES OF HEARING: 15/12/2003 DATE OF JUDGMENT: 12/19/2003 APPLICANTS Ms S Winters (Barrister) SOLICITORS NA FIRST RESPONDENT Mr C Dimitriadis (Barrister) LEGAL REPRESENTATIVES: SOLICITORS Pickering Priestly SECOND RESPONDENT Mr T F Robertson SC SOLICITORS Pike Pike & Fenwick JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10913 of 2003 Talbot J 19 December 2003 Sandra Evans Robert Evans Applicants v Maclean Shire Council First Respondent Integrated Site Design Pty Ltd (for Primrose Levi Pty Ltd) Second Respondent Judgment Introduction 1 The second respondent has lodged an application with the first respondent, Maclean Shire Council ("the council") for the development of an existing caravan park with an additional 233 short-term sites, together with required communal amenities and facilities, including the installation of a sewerage treatment plant. An earlier application was lodged with the council in 1999 and rejected by it on the basis that it was designated development and required an Environmental Impact Statement ("EIS"). Following receipt of that advice the second respondent prepared an EIS and a development application was re-submitted to the council as an application for approval of designated development. 2 The applicants made submissions by way of objection to the second development application. 3 Development consent to development application No. LDA 2003/0112 was issued by the council to the second respondent on 21 July 2003. The applicants have appealed against the determination of the development consent pursuant to s 98 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). 4 Two notices of motion were argued on 15 December 2003. In the first notice of motion dated 27 November 2003 the applicants seek an order that the class 1 proceedings be stayed pending determination of separate class 4 proceedings in matter No. 41468 of 2003, where the applicants claim declaratory relief and an order that the second respondent be restrained from carrying out the development the subject of the above mentioned development consent. The application class 4 is dated 27 November 2003 and was returnable on 17 December 2003. 5 By an earlier notice of motion dated 6 November 2003 the second respondent seeks, inter alia, relief that the appeal be summarily dismissed. 6 After preliminary argument regarding the utility of proceeding with a hearing in regard to either of the notices of motion, separately or together, the Court decided that it was appropriate to hear argument in respect of the issues as raised by the notices of motion in the class 1 proceedings and for those issues to be determined notwithstanding that the class 4 proceedings have the potential to set aside the development consent on the ground that it relates to state significant development under State Environment Planning Policy 71 – Coastal Protection ("SEPP 71") and as such the Minister for Planning is the consent authority for the development. The determination of the issues raised by the notices of motion also have the potential to produce a final and conclusive result of the class 1 matter. The outcome in the class 1 matter has no bearing on the resolution of the issues raised in the class 4 litigation. 7 The applicants were notified of the development application by the council. They were advised that the development was classified as designated development under Sch 3 under the Environmental Planning and Assessment Regulation 2000 ("the EP&A Regulation") because of the provision of a sewerage treatment system as well as integrated development under the Rural Fires Act 1997. An objection was lodged with the council by the applicants on 28 April 2003. 8 The issues to be determined at this point in the litigation are firstly, whether the second respondent is estopped from now asserting the development application was not in respect of designated development and secondly, if there is no estoppel whether the development application and the development consent were properly classified as being in respect of designated development. 9 The council has entered an appearance. Mr Dimitriadis appears on its behalf, although the council does not rely on any evidence and no submissions have been made on its behalf. Estoppel 10 The starting point for the argument in relation to whether the second respondent is estopped from now contending that the proposed development is not designated development is to recognise that the Land and Environment Court is created by statute and that jurisdiction must be found expressly stated in the language of the statute or necessarily implied from it (Combwood Pty Ltd v Baulkham Hills Shire Council (1995) 86 LGERA 319 citing National Parks and Wildlife Service and Another v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 and John Fairfax & Sons Ltd v Police Tribunal of New South Wales and Another (1986) 5 NSWLR 465 at 476.) 11 Prima facie, and on the face of the documents, the second respondent made an application for consent to designated development supported by an EIS. 12 The council proceeded to determine the application by the grant of development consent as if it was for designated development. 13 It is the applicants' case that once the consent was granted for designated development in response to an application for consent to designated development the right of appeal by the objectors arose pursuant to s 98. Moreover, the second respondent is estopped from resiling from the position relied upon to create the jurisdiction of this Court by its own conduct in lodging the development application. According to the applicants, by lodging the second development application the second respondent thereby invoked the necessary process that entitled the applicants to appeal to this Court. It was the intention of the second respondent that the council treat the proposed development as designated development and that it follow the proper procedures for assessing and determining a development application in that respect, including notification of the development application inviting objections. The attempt by the second respondent to resile from its previously adopted position is unconscionable in the circumstances (Waltons Stores (Interstate) Limited v Maher and Another (1987-1988) 164 CLR 387). 14 With great respect to Priestley JA I adopt his distillation from the reasons in Waltons as set out in his judgment in Silovi Pty Ltd v Barbaro and Others (1988) 13 NSWLR 466 at 472 incorporating the expansion of his proposition No. 5 he referred to in Austotel Pty Ltd and Another v Franklins Selfserve Pty Ltd (1989) 16 NSWLR 582 at 610:- …(1) common law and equitable estoppel are separate categories, although they have many ideas in common. (2) Common law estoppel operates upon a representation of existing fact, and when certain conditions are fulfilled, establishes a state of affairs by reference to which the legal relation between the parties is to be decided. This estoppel does not itself create a right against the party estopped. The right flows from the court's decision on the state of affairs established by the estoppel. (3) Equitable estoppel operates upon representations or promises as to future conduct, including promises about legal relations. When certain conditions are fulfilled, this kind of estoppel is itself an equity, a source of legal obligation. (4) Cases described as estoppel by encouragement, estoppel by acquiescence, proprietary estoppel or promissory estoppel are all species of equitable estoppel.(5) For equitable estoppel to operate there must be the creation or encouragement by the defendant in the plaintiff of an assumption that a contract will come into existence or a promise be performed or an interest granted to the plaintiff by the defendant, and reliance on that by the plaintiff, in circumstances where departure from the assumption by the defendant would be unconscionable.(6) Equitable estoppel may lead to the plaintiff acquiring an estate or interest in land; that is, in the common metaphor, it may be a sword. (7) The remedy granted to satisfy the equity (which either is the estoppel or created by it) will be what is necessary to prevent detriment resulting from the unconscionable conduct. 15 I have taken the opportunity to set out what, in my view, is a concise summary of the findings of the various judges in the High Court in order to demonstrate that there is clearly a distinction between a representation that is made inter-parties and a course of action which is undertaken within a statutory regime that affords limited rights to individuals to engage the jurisdiction of a court. No degree of representation by one or other of the parties can create a jurisdictional fact. The applicants rely on a construction of s 98 which allows for an objector to appeal wherever a consent authority makes a determination to grant consent to "a development application for designated development". That is to say that whenever a development application is in terms for designated development then the right of appeal arises irrespective of whether the development in the development application is, in truth, correctly described. 16 Pursuant to s 77A of the EP&A Act designated development is development that is declared to be designated development by an environmental planning instrument or the regulations. Accordingly, a development application for designated development can only be in respect of development that answers the description in s 77A. If an applicant for development consent or the consent authority makes an error and describes the proposal as designated development when in fact it is not that cannot, in my opinion, bring the determination of the consent authority within s 98. Unless the determination of the consent authority is a decision to grant consent to a development application for development that is declared to be designated development, either by an environmental planning instrument or the regulations, there can be no right for an objector who is dissatisfied with the determination to appeal to the Court. There is no relevant objection. Any representation made by the applicant for development consent to the contrary does not create jurisdiction. Whether or not the determination of the development application is in respect of designated development is a jurisdictional fact to be determined objectively by the Court. 17 The position was summarised by Gaudron J in Corporation of the City of Enfield v Development Assessment Commission and Another (2000) 199 CLR 135 at 158. Spigelman CJ described the correct approach in Timbarra Protection Coalition Inc v Ross Mining NL and Others (1999) 46 NSWLR 55 at 63 - 4 as follows:- The issue of jurisdictional fact turns, and turns only, on the proper construction of the statute; see, eg, Ex parte Redgrave; Re Bennett (1946)46 SR (NSW) 122 at 125; 63 WN (NSW) 31 at 33. The parliament can make any fact a jurisdictional fact, in the relevant sense: that it must exist in fact (objectivity) and that the legislature intends that the absence or presence of the fact will invalidate action under the statute (essentiality): Project Blue Sky Inc v Australian Broadcasting Authority (1998) 72 ALJR 841 at 859-861; 153 ALR 490 at 515-517. "Objectivity" and "essentiality" are two inter-related elements in the determination of whether a factual reference in a statutory formulation is a jurisdictional fact in the relevant sense. They are inter-related because indicators of "essentiality will often suggest "objectivity". 18 Upon a proper reading of s 98 there can be no relevant objector unless there is an application for designated development and there has been a determination of the application by a grant of consent. All of those matters are jurisdictional facts. 19 Even if there is technically an estoppel against the second respondent raising the issue, which I do not accept, nevertheless it is imperative for the Court to determine for itself whether it has jurisdiction to hear the appeal. There is no question of private rights against which the estoppel can operate. The fact that potential objectors may have been misled about their appeal rights either by the characterisation of the development by the applicant for development consent or by the council is of no consequence in determining whether the Court has jurisdiction to entertain the proceedings. There may be other consequences that are not relevant in the present case. 20 The Court agrees with Mr Robertson SC, who appears for the second respondent, that as jurisdiction cannot be conferred by agreement, as the decision in Combwood shows, it cannot, as a consequence of the same reasoning, be conferred by an estoppel. Both assume the existence of a fact or matter which must exist before the statutory right of appeal arises (see also Thomson Australian Holdings Proprietary Limited v The Trade Practices Commission and Others (1980-1981) 148 CLR 150 at 161). Estoppel cannot control the exercise of statutory powers or duties (see authorities quoted in Besmaw Pty Ltd v Sutherland Shire Council and Another (2003) 127 LGERA 413 at 445 and Slack-Smith and Another v Director-General of the Department of Land and Water Conservation (2003) NSWLEC 189, unreported at [77]). 21 I propose therefore to determine whether or not the development consent granted by the Council was in respect of designated development. Designated development 22 The second respondent's claim is that the proposed development is not designated because the system for effluent disposal is ancillary to the dominant purpose of a caravan park. It is a minor use of the land as a matter of degree where the dominant use of the whole of the land is the caravan park. 23 On the other hand, the applicants submit that the most extensive and dominant aspect of the caravan park is the sewerage treatment works and the associated ablution buildings, sewerage connection points, pumps, valves, storage dam and irrigation areas. While the connections must be to an approved dwelling site, the two activities of sewerage works and the use of land for accommodation are not so inter-connected or unable to be isolated as was the case involving the removal of soil and the disposal of waste in Penrith City Council v Waste Management Authority and Another (1990) 71 LGRA 376. 24 Miss Winters contends, on behalf of the applicants, that a caravan park can be characterised as land on which specified approval for short-term and long-term dwelling sites exists. In the absence of any moveable dwelling a caravan park only comprises the land with its sewerage works connected to a main sewer, or sewage disposal system as required by cl 45(1) of the Local Government (Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 1995 ("the Caravan Parks Regulation"). It is the applicants' case that although there will also be roads, drainage, electricity supply and shower and toilet facilities housed in a suitable building pursuant to cl 43 of the Caravan Parks Regulation, nevertheless the most extensive and dominant aspect will be the sewerage treatment works and associated fixtures, including the storage dam and irrigation areas. 25 The applicants also place significance on the description of the proposed development in the development application and the EIS. The development application referred to the description of the work proposed as follows:- Caravan Park & Sewerage Treatment System 26 The proposed use was described as "Tourism/Caravan Park". 27 The proposed development was described in the certificate accompanying the submission of the EIS as follows:- Development of an additional 233 short-term sites together with required communal amenities and facilities. The installation of a sewerage treatment plant. 28 On 30 April 2002 the first respondent had issued an approval to operate a caravan park pursuant to s 68 of the Local Government Act 1993 relating to a total of 64 dwelling sites and camp sites. These sites comprise 14 long-term sites, 31 short-term sites and 19 camp sites. Of these sites, 11 long-term sites have been reserved for use by self-contained moveable dwellings only. 29 Miss Winters relies on the observations made by Glass JA in Foodbarn Pty Limited and Others v Solicitor-General (1975) 32 LGRA 157 at 160 as follows:- An ordinance which sets out to provide a catalogue of activities some of which are permitted and other prohibited could hardly intend that the prohibited activity would be acceptable if it were allied to some other permitted activity. A prohibited purpose is equally repugnant to the planning scheme, whether or not it be carried out in isolation from other purposes. 30 The comments must be seen in the context of a submission to the effect that the definition of a use which describes the purpose of the use should be construed as having the meaning used solely for the purpose described. This is not the case here. 31 His Honour went on to accept a further submission that the definition should be construed so as to mean a use for the dominant purpose. At p 161 he expressed his oft quoted opinion that it may be deduced where a part of the premises is used for a purpose which is subordinate to the purpose which inspires the use of another part, it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being used. Moreover, the same principle would apply where the dominant and servient purposes both related to the whole and not to separate parts. However, where the whole of the premises is used for two or more purposes, none of which subserves the other, it was, in his opinion, irrelevant to inquire which of the multiple purposes is dominant. 32 It is not realistic to regard the sewerage facilities as being an independent use. They are truly inspired by the caravan park use and would not exist but for that use. 33 It is not disputed by the second respondent that if the waste management facilities are considered in isolation they would be a category of designated development for the purposes of the EP&A Act within cl 29 in Pt 1 of Sch 2 to the EP&A Regulation. Nonetheless, it is an important fact that the proposed sewerage and effluent reticulation and treatment system will serve only the caravan park. 34 There is no doubt in my mind that the sewerage and wastewater treatment works under consideration in this case cannot be regarded as an independent use. They are entirely for the purpose of the caravan park. They are an integral part of that development which is the dominant purpose. It is not possible to say that, as a matter of fact, after the development is complete the premises will be used for two or more purposes, namely a caravan park and a sewerage treatment work, neither of which subserves the other. 35 Even though the sewerage treatment works fit the description of designated development, they are subordinate to the caravan purpose which dictates and demands the sewerage treatment use. The approach taken by Glass JA in Foodbarn, with which Samuels and Hutley JJA agreed, has been applied consistently over the years and is recently re-affirmed in this Court in Momentum Architects Pty Ltd v Hornsby Shire Council (2002) 123 LGERA 207, Logan-Bald Partnership v Byron Shire Council (2002) 123 LGERA 225 and Harden Bergia Pty Limited v Baulkham Hills Shire Council (2002) 125 LGERA 273. 36 In the circumstances the Court is not prepared to regard the sewerage works or the caravan park as designated development. Accordingly, the applicants have no standing as objectors that would entitle them to commence class 1 proceedings by way of an appeal pursuant to s 98 of the EP&A Act. It is inevitable, therefore, that the proceedings must be dismissed as the Court does not have jurisdiction to hear them. 37 Consequently, any question of a stay of the class 1 proceedings does not arise. 38 The formal order of the Court will be that the proceedings be dismissed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.