Reported Decision : (2006) 145 LGERA 160 Land and Environment Court of New South Wales CITATION : Blackington Pty Ltd v Tweed Shire Council [2006] NSWLEC 158 APPLICANT PARTIES : Blackington Pty Ltd RESPONDENT Tweed Shire Council FILE NUMBER(S) : 20906 of 2005 CORAM: Jagot J KEY ISSUES: Local Government approval :- Whether exemptions with respect to operating a caravan park apply; Non-compliance with requirements of regulations; Whether approval to operate a caravan park may be granted Environmental Planning and Assessment Act 1979 s 79C(1) Interpretation Act 1987 s34(1) Land and Environment Court Act 1979 s 38(1), s 38(2), s 39(4) Local Government Act 1993 s 68, s 82, s 89, s 94, s 103 Local Government (Caravan Park and Camping Ground) Regulation 1995 LEGISLATION CITED: Local Government (Caravan Park and Camping Ground) Regulation 2005 Local Government (Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 1995 Local Government (Caravan Parks and Camping Grounds) Transitional Regulation 1993 Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005 Local Government (Savings and Transitional) Regulation 1993 State Environmental Planning Policy No 21—Caravan Parks Tweed Local Environmental Plan 2000 Auburn Municipal Council v Szabo and Another (1988) 67 LGRA 427; Carstens v Pittwater Council (1999) 111 LGERA 1; Hubertus Schuetzenverein Liverpool Rifle Club Ltd v Commonwealth of Australia (1994) 51 FCR 213; Nalor Pty Ltd v Bankstown City Council [1980] 2 NSWLR 630; Newcastle City Council v Travis McShane (No 3) [2005] NSWCA 437; Parramatta City Council v Shell Co of Australia Ltd [1972] 2 NSWLR 632; Revilla Pty Limited v The Council of the City of Sydney (No. 1) [2003] NSWLEC 343; CASES CITED: Revilla Pty Limited v The Council of the City of Sydney (No. 2) [2004] NSWLEC 529; Roads & Traffic Authority (NSW) v Ashfield Municipal Council (2005) 141 LGERA 278; Ryde Municipal Council v The Royal Ryde Homes and Another (1970) 19 LGRA 321; Saraswati v The Queen (1991) 172 CLR 1; Sofi v Wollondilly Shire Council and Another (1975) 31 LGRA 416; Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council [No 2] (1993) 78 LGERA 404; The Dubler Group Pty Ltd v Minister for Infrastructure, Planning and Natural Resources (2004) 137 LGERA 178; Woolworths Ltd v Campbells Cash and Carry Pty Ltd (1996) 92 LGERA 244 DATES OF HEARING: 23/02/2006, 24/02/2006, 27/02/2006 DATE OF JUDGMENT: 04/10/2006 APPLICANT J Thompson SOLICITORS LEGAL REPRESENTATIVES: Jones Staff & Co RESPONDENT S Duggan SOLICITORS Stacks/Northern Rivers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Jagot J 10 April 2006 20906 of 2005 BLACKINGTON PTY LTD Applicant TWEED SHIRE COUNCIL Respondent JUDGMENT Jagot J: Introduction 1 This is an application for approval to operate a caravan park under s 68 of the Local Government Act 1993 (Part F of the Table, item 2). 2 The caravan park is known as the Banora Point Caravan Park. The caravan park was first approved in 1967. The caravan park is now located on lot 5 in DP 828639 and lot 382 in DP 755740, No. 2 Pacific Highway, Banora Point. Lot 5 was created when the Roads and Traffic Authority resumed part of former Portion 314 to facilitate construction of an access road (located on the southern frontage of the site). Lot 382 was created when former Portion 382 was issued with a cadastral title. The site fronts the Tweed River in the east and a Crown road in the west. The site has a total area of 4.92 hectares. Lot 5 is 2.815 hectares. Lot 382 is 1.4215 hectares. Lot 5 is the land generally to the south of a designation on the plan for which approval is sought of "flood liable land". Lot 382 is the land generally to the north of that designation. That designation follows the alignment of a street within the caravan park called 15th Avenue. 3 The land is zoned 6(b) Recreation under the Tweed Local Environmental Plan 2000. In that zone, "caravan parks" are permissible with development consent. Clause 8 specifies matters about which the consent authority must be satisfied before it may grant development consent to use for that purpose. 4 The applicant seeks approval to operate the caravan park in accordance with a plan dated 31 October 2005 prepared by Robert A Harries, surveyor (the "plan"). The plan is not a survey plan. It nevertheless shows the proposed operation of the caravan park as follows: (1) The caravan park will contain 197 sites in total. (2) Of the 197 total sites, 179 sites are proposed to be long-term sites (this has a particular meaning under the applicable legislation that I explain below). (3) Of the 197 total sites, 18 sites are proposed to be short-term sites. The short-term sites are proposed to be sites 33, 34, 35, 36, 42, 45, 46, 47, 66, 68, 81, 91, 99, 104, 107, 114, 123 and 139 (using the site numbering on the plan). (4) All of the 18 short-term sites identified above are presently long-term sites. (5) In order to achieve the site and road layout shown on the plan, various amendments to the present layout of the caravan park are required. Those amendments are shown on Exhibit 10, which is a marked-up copy of the plan. 5 Part of the context of the current application is set by certain orders made by this Court in proceedings 40780 of 2004 on 31 March 2005. The orders (which were made by consent) require the applicant (the respondent in the Class 4 proceedings) to carry out certain works as specified in Schedule 1 thereto. Paragraph 3 of Schedule 1 is in the following terms: Within 35 days and until such time as another Community Map is approved by the Applicant in accordance with the Local Government (Caravan Park and Camping Ground) Regulation 1995: (a) display and thereafter maintain displayed copy of the current approved community map being the map prepared by Gavin Duffie Contract Draftsman dated 24 April 1999 reference G1714 ("the community map"); (b) clearly delineate and maintain delineated all of the sites on the premises so that all sites are delineated consistently with the community map. 6 The consent orders contain a note of an agreement between the parties as follows: (a) the Council shall undertake reasonable endeavours to have the application for approval received by the applicant Council from the Respondent pursuant to S. 68 of the Local Government Act 1993 on 8 March 2004 determined within 118 days; (b) the operation of Schedule 1 paragraph 3 is deferred until such time as the application referred to in paragraph (a) above is finally determined PROVIDED THAT the Respondents undertake to prosecute any appeal to the Land & Environment Court in respect of such determination expeditiously. 7 The application for approval before me is the application referred to in this agreement. The plan accompanying the application has apparently been amended more than once. The amendments culminated in the 31 October 2005 that the applicant relies upon as the basis for approval of the continued (albeit modified) operation of the caravan park. 8 The Council, which had before it an earlier version of this plan, refused the application on 21 July 2005. The reasons for refusal may be summarised as: - (i) the impacts on long-term residents of converting long-term sites to short-term sites, (ii) inadequacy of off-site parking arrangements as shown on the plan before the Council, (iii) inadequacy of the plan before the Council in that the plan did not accurately depict the layout of the site in accordance with the definition of "community map" in the Local Government (Caravan Park and Camping Ground) Regulation 1995, (iv) the depiction on the plan before the Council of a layout which, in various respects, did not comply with the requirements of the Local Government (Caravan Park and Camping Ground) Regulation 1995, and (v) the absence of development consent authorising various uses and facilities shown to be proposed on the plan before the Council (including the overall number of sites which the Council says exceeds the maximum number authorised by any consent). The issues 9 The Council filed and served a statement of issues on 20 September 2005 that largely reflects the Council's reasons for refusal. In opening, Ms Duggan (representing the Council) re-articulated the principal issues as follows: (1) Whether the land has the benefit of any development consent(s) authorising development consistent with the development shown in the plan. In particular, the Council contends that: - (i) the land has consent for a total of 175 sites (not 197 sites), of which 157 are long-term sites and 18 are short-term sites, (ii) there is no consent that authorises use of part of the land for "van and auxiliary storage" as shown on the plan, (iii) sites shown on the plan as 27, 28, 29, 30, 31 and 32 are all required by the applicable development consents to be used for open space, not sites for caravans, (iv) the layout of a number of the sites and certain facilities (for example, the visitor car park) as shown on the plan does not accord with the layout required by the applicable development consents. (2) Whether the conversion of 18 existing long-term sites to short-term sites is acceptable, having regard to the potential impacts of such an arrangement on residents of the caravan park. (3) The adequacy of the plan and, in particular, whether the layout of the caravan park as shown thereon will comply with the Local Government (Caravan Park and Camping Ground) Regulation 2005. 10 This (useful) articulation of the issues assumes that: - (i) the maximum number of sites and the allocation of long-term and short-term sites, is regulated by the applicable development consents, and (ii) the application is to be determined by reference to the requirements of the Local Government (Caravan Park and Camping Ground) Regulation 2005. The applicant disputes both contentions. The applicant says that: - (i) the development consents do not regulate the maximum number of sites or the allocation of long-term and short-term sites, and (ii) the caravan park has the benefit of various savings and transitional provisions in the legislation which provide certain exemptions from the requirements of the Local Government (Caravan Park and Camping Ground) Regulation 2005. 11 I consider that is necessary that I consider the issues between the applicant and the Council identified in [10] above, before I consider the issues articulated by the Council. The statutory schemes over time The Local Government Act 1993 12 Section 68 of the Local Government Act 1993 (which is in Div 1 of Pt 1 of Ch 7 of the Act) provides that: (1) A person may carry out an activity specified in the following Table only with the prior approval of the council, except in so far as this Act, the regulations or a local policy adopted under Part 3 allows the activity to be carried out without that approval. (2) … 13 Insofar as relevant, the Table to s 68 includes in Part F, item 2, the following: Part F Other activities 1 … 2 Operate a caravan park or camping ground 14 Div 3 of Pt 1 of Ch 7 regulates the making and determination of applications for approval under s 68. 15 Section 82 enables an applicant to object to the provisions of the regulations or any local policy relating to the activity for which approval is sought on the ground that the provision is unreasonable or unnecessary in the particular circumstances of the case. If the objection relates to any provision of the regulations, and the council is satisfied that the objection is well founded it may, with the concurrence of the Director-General, direct that such provisions as are specified in the direction are not to apply or are to apply with such modifications as are specified in the direction. No objection has been made in this case. 16 Section 89 specifies the matters to consider in determining applications for approval. (1) In determining an application, the council: (a) must not approve the application if the activity or the carrying out of the activity for which approval is sought would not comply with the requirements of any relevant regulation, and (b) must take into consideration any criteria in a local policy adopted under Part 3 by the council which are relevant to the subject-matter of the application, and (c) must take into consideration the principles of ecologically sustainable development. (2) If no requirements are prescribed for the purposes of subsection (1)(a), and no criteria are adopted for the purposes of subsection (1)(b), the council in determining an application: (a) is to take into consideration, in addition to the principles of ecologically sustainable development, all matters relevant to the application, and (b) is to seek to give effect to the applicant's objectives to the extent to which they are compatible with the public interest. (3) Without limiting subsection (2), in considering the public interest the matters the council is to consider include: (a) protection of the environment, and (b) protection of public health, safety and convenience, and (c) any items of cultural and heritage significance which might be affected. 17 Lloyd J considered the operation of s 89 in Revilla Pty Limited v The Council of the City of Sydney (No. 1) [2003] NSWLEC 343 and Revilla Pty Limited v The Council of the City of Sydney (No. 2) [2004] NSWLEC 529. In Revilla (No. 1) at [14] Lloyd J observed that: Where requirements are prescribed for the purpose of s 89(1), the consent authority cannot take into consideration the matters described in sub-ss (2) and (3). The consent authority is limited to a consideration of the matters set out in sub-s (1), which include those in Pt 2 of the Local Government (Approvals) Regulation 1999. That is to say, the consent authority cannot take into consideration such matters as protection of the environment, or protection of public health, safety and convenience. 18 In Revilla (No. 2), Lloyd J held (at [11] to [13]) that: 11 Section 89 applies to the determination of a fresh application in the same way that it applies to the determination of an application for renewal. As such, s 89(1) and Pt 2 of the LG Regulation expressly and specifically exclude any other considerations that might be taken into account. 12 An examination of the statutory context of s 89(1) reinforces this construction. Subsection (2) states that "[i]f no requirements are prescribed for the purposes of subsection (1)(a), and no criteria are adopted for the purposes of subsection (1)(b), the council in determining an application" must take into account the other considerations listed therein. Consequently, consideration of these additional matters is confined to the situation where no requirements are prescribed and no criteria are adopted. This limitation reinforces the exhaustive nature of the matters prescribed in sub-s (1). 13 The consent authority, therefore, is limited to a consideration of the matters contained in the LG Regulation. Consequently, the issues of protection of public health, safety and convenience are matters that are irrelevant and extraneous to the exercise of the discretion under s 68 and must be struck out. They may, however, be properly matters for consideration on any necessary application for development consent under the Environmental Planning and Assessment Act 1979. 19 There is no local policy adopted by the Council relevant to the present application. The Council relies on s 39(4) of the Land and Environment Court Act 1979 to avoid the result which the reasoning in Revilla (No. 2) would yield if applied in this case (namely, that all matters other than the "requirements of any relevant regulation" would be considerations irrelevant to determining the application for approval). Section 39(4) provides that, in making its decision in respect of an appeal, the Court shall have regard to, relevantly, the circumstances of the case and the public interest. The Council also refers to Carstens v Pittwater Council (1999) 111 LGERA 1 (a decision of Lloyd J on s 79C(1) of the Environmental Planning and Assessment Act 1979) to support its contention that the specification of requirements in the applicable regulations does not make more general public interest matters irrelevant to the determination of an application. 20 As I have reached the conclusion (for the reasons given below) that the application is to be refused by reason of the operation of s 89(1)(a), I do not consider it necessary for me to express any conclusion about the operation of s 89(2) and (3) in this matter. 21 Under s 94, an application may be determined by granting approval to the application, either unconditionally or subject to conditions or by refusing approval. 22 Section 103 provides for the lapse of approvals as follows: 103 When does an approval lapse? (1) An approval lapses: (a) 5 years after the date from which it operates, except as provided by paragraph (b), or (b) in the case of an approval that is subject to a condition under section 96 (2), 2 years after the date on which the last approval, consent or permission required to be obtained in accordance with the condition operates. (2) A council, in granting an approval, may vary either or both of the periods referred to in subsection (1). (3) Such a variation may not be made so as to cause: (a) (Repealed) (b) an approval of a kind prescribed by the regulations to lapse within the period prescribed by the regulations in relation to the approval. (4) This section does not prevent the extension or renewal of an approval under section 107. (5) In this section, vary means increase or reduce. The Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005 (the "2005 Regulation") 23 The 2005 Regulation commenced on 1 September 2005 (but for two provisions which are not material). But for any savings and transitional provision, the application (lodged in 2004) would fall for determination under the 2005 Regulation (Sofi v Wollondilly Shire Council and Another (1975) 31 LGRA 416, Nalor Pty Ltd v Bankstown City Council [1980] 2 NSWLR 630 and The Dubler Group Pty Ltd v Minister for Infrastructure, Planning and Natural Resources (2004) 137 LGERA 178 at [20]). 24 Clause 4 of the 2005 Regulation defines certain terms. Relevantly: community map : (a) … (b) in relation to a caravan park or camping ground—means a scale map that accurately shows: (i) the access roads, community amenities and community buildings within the caravan park or camping ground, and (ii) the number, size, location and dimensions of dwelling sites or camp sites within the caravan park or camping ground, and (iii) in relation to a dwelling site or camp site within the caravan park or camping ground, the particular off-site parking space or spaces (if any) designated for use by the occupier of the dwelling site or camp site. dwelling site : (a) … (b) in relation to a caravan park—means an area of land within the caravan park on which a moveable dwelling may be installed and that is designated as a dwelling site by the approval for the caravan park. long-term site means a dwelling site that is specified in the approval for a caravan park as being a long-term site. short-term site means a dwelling site on which a moveable dwelling that is ordinarily used for holiday purposes may be installed and that is specified in the approval for a caravan park as being a short-term site. 25 Part 3 of the 2005 Regulation deals with caravan parks, camping grounds and moveable dwellings. 26 Clause 70 provides that: This Part applies 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 does not apply to the installation of manufactured homes in manufactured home estates. 27 Clause 71 specifies that: (1) The council must not grant an approval to operate a caravan park or camping ground unless it is satisfied that it will be designed, constructed, maintained and operated: (a) in accordance with the relevant requirements of Subdivisions 1–8 of Division 3, or (b) …. 28 Clause 72(1)(b) and (2) states that: (1) In addition to any other matters it must contain, an approval to operate a caravan park or camping ground must specify the following: (a) … ( b) in the case of an approval that allows the operation of a caravan park: (i) the number, size and location of long-term sites allowed by the approval, and (ii) the number, size and location of short-term sites allowed by the approval, and (iii) the number, size and location of dwelling sites (whether long-term or short-term) to be reserved for self-contained moveable dwellings, and (iv) the location of any off-site parking spaces for dwelling sites, (2) The numbers, sizes and locations referred to in subclause (1) must be specified by reference to a community map. 29 Clause 73(1)(a) to (c) provides that: (1) An approval to operate a caravan park or camping ground is subject to the following conditions: (a) the caravan park or camping ground must be designed, constructed, maintained and operated: (i) in accordance with the relevant requirements of Subdivisions 1–8 of Division 3, or (ii) in the case of a primitive camping ground, in accordance with the relevant requirements of Subdivision 9 of Division 3, (b) a person must not be permitted to stay in a moveable dwelling that occupies a short-term site or camp site for a total of more than 150 days in any 12 month period, unless the moveable vehicle is a holiday van and the person is the owner of that holiday van, (c) the owner of a holiday van that occupies a short-term site or camp site must not be permitted to stay in the holiday van for a total of more than 180 days in any 12 month period, 30 Clause 80 is as follows. In considering an application for approval to install a moveable dwelling or associated structure on any land, the council must take the following matters into consideration: (a) whether any development consent required under the Environmental Planning and Assessment Act 1979 for the installation of the moveable dwelling or associated structure on the land has been given, (b) whether the installation of the moveable dwelling or associated structure on the land contravenes the provisions of the Environmental Planning and Assessment Act 1979 or of any environmental planning instrument. 31 The Council, as noted, contends that installation of (at least some of the) moveable dwellings (defined in the Act to include caravans used for human habitation and manufactured homes) shown in the plan requires development consent and, absent consent, that installation would contravene the requirements of State Environmental Planning Policy No 21—Caravan Parks (cl 8). 32 Division 3 of Part 3 sets out various requirements with which caravan parks must comply. The relevant provisions are as follows: 85 Size of dwelling sites and camp sites (1) A long-term site must have an area of at least 80 square metres. 90 Use of buffer zones Nothing in this Regulation prevents land within a buffer zone arising from the setbacks required by this Division from being used: (a) for community amenities, access roads, car parking spaces, footpaths or landscaping, or (b) for any similar purpose allowed by the approval for the caravan park or camping ground. 92 Entrance and exit roads (1) A road that forms an entrance to or exit from a caravan park or camping ground must be at least 7 metres wide. 93 Forecourt A caravan park must have a forecourt, measuring at least 4 metres by 20 metres, to accommodate incoming vehicles. 94 Width of roads (1) The width of an access road must be: (a) at least 6 metres for a two-way access road, and (b) at least 4 metres for a one-way access road. (2) The direction of travel for a one-way access road must be indicated by means of conspicuous signs. 96 Resident parking (1) A caravan park or camping ground must contain at least one resident parking space for each dwelling site or camp site. (2) The parking space for a dwelling site or camp site may be on-site (that is, forming part of the site) or off-site (that is, not forming part of the site). (3) An off-site space must be marked (for example, by means of line marking, marker pegs or similar means) to identify the particular dwelling site or camp site to which it relates. (4) An off-site parking space for a dwelling site or camp site must be situated in the location specified in the approval for the caravan park or camping ground. (5) Each off-site parking space is to have, at minimum, dimensions of: (a) 5.4 metres by 2.5 metres, in the case of angle parking, and (b) 6.1 metres by 2.5 metres, in any other case. 97 Visitor parking (1) A caravan park or camping ground must contain no fewer visitor parking spaces than the following: (a) one visitor parking space for each 10 (and any remaining fraction of 10) long-term sites in the caravan park or camping ground, (b) one visitor parking space for each 20 (and any remaining fraction of 20) short-term sites in the caravan park or camping ground, (c) one visitor parking space for each 40 (and any remaining fraction of 40) camp sites in the caravan park or camping ground. (2) The minimum number of visitor parking spaces to be provided is 4. (3) Each parking space is to have, at minimum, dimensions of: (a) 5.4 metres by 2.5 metres, in the case of angle parking, and (b) 6.1 metres by 2.5 metres, in any other case. (4) Visitor parking spaces must be clearly identified as such. 125 Community map The council must be given a copy of the current community map: (a) as soon as practicable after any amendment is made to the map, and (b) at such other times as the council may reasonably require. 33 Part 4 of the 2005 Regulation contains a savings clause (cl 175) in the following terms: Any act, matter or thing that, immediately before the repeal of the Local Government (Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 1995 or the Local Government (Manufactured Home Estates and Manufactured Homes) Regulation 1995, had effect under either of those Regulations is taken to have effect under this Regulation. 34 The applicant relies on this clause as continuing the effect of exemptions it says that the operation of the caravan park enjoyed under the Local Government (Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 1995 (the "1995 Regulation"). The 1995 Regulation 35 The 1995 Regulation contains substantive requirements for caravan parks (largely) to the same effect as the 2005 Regulation. I do not intend to repeat those provisions. 36 However, as part of the applicant's case is that cl 175 of the 2005 Regulation continues the effect of the savings and transitional provision in the 1995 Regulation (cl 110), it is necessary to identify this provision. Clause 110 was in the following terms: 110(1) The Local Government (Caravan Parks and Camping Grounds) Transitional Regulation 1993 is repealed. (2) Any act, matter or thing that, immediately before the repeal of the Local Government (Caravan Parks and Camping Grounds) Transitional Regulation 1993, had effect under that Regulation is taken to have effect under this Regulation. (3) For the purposes of this Regulation: (a) any consent, permission, exemption or requirement; or (b) any standard or specification agreed to by a council, that, immediately before the repeal of the Local Government (Caravan Parks and Camping Grounds) Transitional Regulation 1993, had effect or was in force under that Regulation in respect of a caravan park or camping ground is taken to continue as a condition of the approval for the caravan park or camping ground. (3A) The reference in subclause (3) to the approval for the caravan park or camping ground is a reference to the approval (whenever granted or renewed) in force for the time being for the park or ground. (4) For the purposes of this Regulation, a relocatable home for which a compliance plate was in force under the Local Government (Caravan Parks and Camping Grounds) Transitional Regulation 1993 immediately before the repeal of that Regulation is taken to comply with the requirements of this Regulation. 37 The Council submits that the effect of this provision is to deem any approval in force under the 1995 Regulation to be subject to a condition to the effect of any consent, permission, exemption, or requirement or standard or specification agreed to by the Council, which was in force immediately prior to 1 September 1995 (the date on which the 1993 Regulation was repealed). The applicant contends for a much broader operation of the clause – namely that the clause continues to have effect under the 2005 Regulation (due to cl 175 of the 2005 Regulation) and, the applicant says, continues all exemptions in force prior to 1 September 1995. 38 The Local Government (Caravan Parks and Camping Grounds) Transitional Regulation 1993 was the name given to Ordinance 71 on the commencement of the Local Government Act 1993. Ordinance 71 was made under the Local Government Act 1919. It remained in force (albeit amended from time to time) until 1 September 1995, the date on which the 1995 Regulation came into force. Hence, the 1993 Regulation is Ordinance 71 as amended. Ordinance 71 39 Ordinance 71 came into force on 1 December 1986 (cl 2). The Ordinance was made consequent to the introduction into the 1919 Act of ss 289E to 289J. Under those sections, land could not be used for the placement of a moveable dwelling in the circumstances prescribed, absent a licence. Section 289G contemplated an ordinance which would regulate the requirements for moveable dwellings and their placement on land. That section expressly referred to an ordinance containing provisions with respect to programmes or works to secure compliance with the applicable standards (s 289G(2)(d) and the variation of licence conditions (s 289G(2)(f)). The provision relating to programmes for works thus expressly recognised that the ordinance would apply to existing caravan parks, which may not comply with the standards or requirements imposed by the ordinance. 40 Ordinance 71 incorporated detailed transitional provisions regulating the application of its provisions to existing caravan parks. The applicant relies upon the transitional provisions of Ordinance 71 to support an argument that the Banora Point Caravan Park remains exempt from the provisions of the 2005 Regulation. The applicant says, in effect, that due to the savings provisions in each of the 1995 and 2005 Regulations, the caravan park continues to have the benefit of all the exemptions it had under Ordinance 71. Accordingly, it is necessary that I consider the provisions of the Ordinance in some detail. 41 Clause 4(1) of Ordinance 71 contained the following definitions of relevance: "existing park" means any caravan park or camping ground which, at the date of commencement of this Ordinance, has been established with the approval of the Council or for which, at that date, a current development consent has been granted, but does not include any sites on any such park or ground that are not in existence, or under construction, as at that date; "long-term resident" , in relation to a caravan park, means a person (other than any person who is a caretaker, manager or employee of the licensee or anyone living with any such person) whose principal place of residence is a movable dwelling placed in the park; "site" means an area of land within a caravan park designed for the placement of a movable dwelling but does not include a camp-site or an area set aside for the storage of unoccupied movable dwellings; "site-occupier" means the person who occupies a site or camp-site on a caravan park or camping ground; "short-term resident" means any person accommodated on a caravan park, other than a long-term resident. 42 Clause 9 provided for renewal applications and cl 10 specified the length of term of a licence as follows: Application for licence in respect of licensed land 9(1) A person who desires to acquire a licence in respect of land already licensed may submit, together with the person's application under clause 6, evidence in an approved form that the existing licensee is prepared to surrender the existing licence in the event that the council grants the person's application. (2) When granting a licence sought in the circumstances mentioned in subclause (1), the council shall cancel the existing licence. (3) Upon cancellation of the licence the existing licensee is entitled to a refund of an amount that bears to half the fee paid by that licensee the same proportion as the number of whole months remaining in the term of the licence at the time of its cancellation bears to 12 months. (4) A licence is not transferable otherwise than in terms of this clause. Duration of licence 10. Except as provided by clause 11, the term of a licence or renewal shall be 12 months, commencing on a date specified in the licence. 43 Clause 12 regulated the variation of licence conditions. It provided that: Conditions specified by council 12(1) For the purposes of section 289H(7)(c) of the Act, the prescribed manner of effecting a variation in relation to the conditions of a licence is by notice in writing served on the licensee. (2) Any such notice shall allow a reasonable time for the licensee to comply with the variation. 44 Clause 13 identified the circumstances in which a council might refuse an application for a licence. Refusal of application 13. (1) 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 application should not be granted. (2) If the council resolves not to grant a licence to an applicant, the council shall give written notification to the applicant of the decision and the reasons for it and of the applicant's rights of appeal under the Act. 45 Under cl 14, licences could be suspended or cancelled for, amongst other things, failure to comply with any condition or a "notice of irregularity" under cl 105. Clause 105(1) provided that: Notice of irregularity 105. (1) If, in the opinion of the council or an authorised employee of the council – (a) any matter or thing at or in relation to any licensed premises contravenes or fails to comply with this Ordinance; (b) the licensee, by any act or omission, has contravened or failed to comply with this Ordinance; or (c) any licensed premises have become unsightly, untidy or the repository of rubbish or have otherwise become a danger to the health or safety of persons resorting to or living at the premises, the council or authorised employee may serve on the licensee or manager of the premises a notice of irregularity. 46 Part 4 of Ordinance 71 specified the requirements for the layout and operation of caravan parks, a number of which are still reflected in the terms of the 2005 Regulation. In this case, insofar as relevant, the equivalent provisions are: Size of sites and camp sites 22(1) A site used for long-term residence shall not be smaller than 80 square metres. Incoming vehicles and dwellings 37(1) A forecourt holding area shall be provided for the temporary parking of incoming vehicles and movable dwellings. 37(2) The dimensions of the area shall be not less than 4 metres by 20 metres. 47 Otherwise, the relevant generally equivalent (or similar) provisions as between the 2005 Regulation and Ordinance 71 are: 2005 Regulation Ordinance 71 84 34 92 36 94 39 96 42 97 43 125 104 48 Part 8 of Ordinance 71 is headed "Transitional Provisions". Clause 108 provided that: Exemptions 108(1) Except to the extent provided by this clause, the provisions of clauses 21, 26, 33-39, 43, 48, 49, 58 and 65 shall not apply to or in respect of existing parks. (2) The provisions of clauses 44-46 and 49-55 shall not apply to or in respect of existing parks, but the minimum number of facilities prescribed by those provisions shall constitute standards to be met by an appropriate programme of works referred to in clause 109. (3) Where any building or facility on an existing park is substantially extended, or is replaced by a new building or facility, the extension or any such new building or facility shall comply with any relevant provision specified in subclause (1) and other relevant provisions of this Ordinance. (4) Nothing in this clause precludes the council from prescribing or making, as a condition to which a licence is subject, any standard or requirement in relation to any licensed premises. 49 Part 8 also contained cl 109 as follows: Programme of works 109(1) It shall be the duty of the council – (a) to undertake, in respect of each existing park operated by the council and which in any respect does not comply with the standards prescribed by Part 4 (except to the extent that the park is exempted from those standards by clause 108(1)), a programme of works for the improvement of the park to such an extent that, within 3 years after the approval of the Minister is given to the programme under clause 110 or such longer period as the Minister may allow, it will comply with those standards; and (b) in respect of every other existing park within the area of the council which does not so comply, to require such a programme to be undertaken by the licensee in accordance with this clause. (2) For the purposes of subclause (1) - (a) every council that is a licensee of an existing park shall submit a programme of works, to the satisfaction of the Minister, on or before 1 June 1987; and (b) if a person other than a council holds a licence in respect of an existing part - (i) the licensee shall submit to the council a draft programme of works, to the satisfaction of the council, on or before 1 June 1987; and (ii) the council and the licensee shall, within 3 months after the time for submission of the draft programme has expired, and with such consultation as may be necessary, settle the terms of the programme of works and submit the programme to the Minister for approval. (3) The cost of any preparatory work required for or in connection with the preparation of any such programme shall be borne by the licensee. (4) The reference in clause 12 (6) to an approved programme of works includes a reference to a programme of works approved for the purposes of this clause. 50 Finally, cl 112 provided that: Survey of existing licensed premises 112. (1) Within one month after the commencement of this Ordinance, the holder of an existing licence - (a) shall advise the council of the number of sites (whether generally used for long-term or short-term residence) and the camp-sites on the licensed premises; and (b) if more than half of the sites are being used for long-term residence, may apply to the Minister for approval of the use of those sites for that purpose during the remainder of the term of the licence. (2) Within 4 months after the commencement of this Ordinance the holder of an existing licence shall (unless the council agrees that information adequate for the purposes of this subclause has already been otherwise provided) provide the council with the following: (a) a plan of survey showing the boundaries of the licensed premises; (b) a plan, drawn to a convenient scale, showing the location of sites and camp-sites, internal roads and their respective widths, communal facilities, facilities provided for the use of individual site-occupiers and any permanent building or structures (and indicating the nature of any such building or structures); (c) in respect of the building shown pursuant to paragraph (b) – their several designations, the number of individual water closets, washing facilities and other amenities provided as required by this Ordinance; and (d) the numbers and locations of sites used for long-term and short-term residence and camp-sites; (3) The information required by subclause (2) may be supplemented by photographs or other pictorial aids or information provided by the licensee or obtained or compiled by the council for its records, but where the council takes any such photographs or compiles any such information, the licensee shall be entitled to a copy of it. The development of Banora Point Caravan Park 51 The Council granted development consent to a proposed caravan park on 14 November 1967. The application form describes the land as "Pt Portions 314 and 382", whereas the consent notice describes the land as "Portions 314 and 382". The application form refers to the "accompanying plans", but neither party can locate any approved plans. I infer from the conditions of the consent that plans of the caravan park were approved as part of this consent. I do not accept the applicant's submission that the reference to the plans in the consent notice is a mere pro-forma reference that was not deleted by reason of some oversight. 52 A 1962 aerial photograph shows that, by that time, the land on which the caravan park is presently located had largely been cleared. A 1976 aerial photograph shows the clearing extending further to the north and some large white patches on the previously cleared area. I am not satisfied that those patches have any connection with the development of the caravan park. The Council called Ms Ormella, town planner, to give evidence in these proceedings. She labelled the 1976 aerial photograph as "Banora Point Caravan Park site prior to its development". The applicant called Mr Kennan, town planner, to give evidence. He could not advance the interpretation of these aerial photographs any further. 53 On 10 October 1983, the Council granted a second development consent for the erection of two amenities blocks as part of the caravan park. The consent refers to the development being carried out "in accordance with plans and details submitted". A plan (A1-3380/20) is in evidence. I am satisfied that this is the plan referred to in the consent. It shows a layout of the caravan park and existing amenities extending from 1st Avenue to 15th Avenue. This area of land largely corresponds to lot 5 (which used to be part of Portion 314), with a small encroachment into Portion 382 (now lot 382). 54 I infer that, as at 10 October 1983, the sites as shown on the 1983 plan existed. Those sites were thus capable of falling within the meaning of "existing park" as defined in Ordinance 71 if they still existed as at 1 December 1986. In order to remain within the definition of "existing park", however, those sites also had to remain (or, at the least, materially remain) in the same form, as they existed immediately prior to 1 December 1986. If sites were materially altered after 1 December 1986, then I consider that such sites (from the date of such alteration onwards) could not fall within the definition of "existing park" in the Ordinance. 55 On 21 September 1983, the Council received a development application to extend the caravan park to accommodate further van sites. The application identified the land as Portion 382 and its present use as caravan park. A report to the Council of 19 February 1986 contains a plan showing "existing caravan park" (basically on the land known as Portion 314) and a cross-hatched area as the "subject site". 56 On 17 March 1986, the Council granted consent for the "extension of existing caravan park to accommodate 36 movable dwelling sites". This consent refers to site plans (A1 – 2285/4), but the parties cannot locate those site plans. Condition 3 states: Three (3) amended site plans to be submitted indicating the extent of the existing filled land, the land areas on the northern extremity of the site and indicating that no work whatsoever will be undertaken below that fill line in the wetland area. 57 On 1 December 1986, Ordinance 71 came into force. The material before me does not include plans as referred to in cl 112(2) of that Ordinance. 58 A 1987 aerial photograph shows a caravan park located in a configuration that generally conforms to the 1983 plan (A1-3380/20). That photograph shows the northern end of the land (generally the area of lot 382) with some buildings on it, but that area does not appear to be laid out as sites. Mr Kennan agreed that the northern area, apart from 8 structures thereupon, was "undeveloped" based on the 1987 aerial photograph. I accept that opinion. 59 A report to the Council of 1 July 1987 refers to the caravan park as having the benefit of two building approvals authorising a total of 198 sites. The licence that issued on 23 May 1988 authorised 154 sites as long-term sites and 44 as short-term sites. 60 In March 1993, the RTA resumed part of Portion 314. The residue became lot 5. The resumption removed the front row of sites. Ms Ormella says that 23 sites in total were removed by the RTA resumption (by reference to Figure 3 in her statement). I accept that evidence. 61 On 12 July 1993, the Council received a development application to "increase UMD sites from 36 to 41". UMDS are unregistered moveable dwellings. A report to the Council notes that the 5 sites existed on the northern area, and that the application aimed to "legalise" these sites. 62 On 24 June 1994, the Council granted consent for "additions to existing caravan park". The Council submits that this consent relates only to the northern area of land (that is, the land beyond 15th Avenue). I accept that submission. The conditions of consent refer to two plans – A1 1087/1 and A1 2285/16. Both plans are in evidence. The first plan shows, on the southern part of the land (mainly Portion 314 or residue lot 5), a site layout generally conforming to the 1983 plan. It also shows, on the northern part of the land, 36 sites. The total number of sites shown on the first plan is 195 sites. The second plan shows, on the northern part of the land, 41 sites. Hence, irrespective of the land to which this consent relates, as at 24 June 1994, the Council issued a consent that acknowledged the presence of a total of 200 sites on the caravan park. This total, however, excludes the removal of the 23 sites on the land resumed by the RTA. In circumstances where the earlier consents, in some cases, relate to plans that are not available, the 1994 consent provides information potentially relevant to the construction of those consents (as explained below). 63 On 28 March 1996, the Council sought the concurrence of the Minister to an arrangement and allocation of sites on the caravan park comprising 157 long-term sites and 18 short-term sites. This was said to be necessary by reason of the RTA resumption. The Minister granted concurrence to that proposal on 27 May 1996. An approval dated 24 December 1996 reflects this total number of sites and allocation between long-term and short-term sites. 64 On 3 July 1997, the Council received a letter that asked whether a modification application was necessary to relocate four sites within lot 5 near 16th Avenue. The Council responded on 5 February 1998 to the effect that the consent did not need to be modified. 65 The Council issued a number of approvals to operate the caravan park. Until 1999, these approvals referred to 157 long-term sites and 18 (or 22) short-term sites (that is, a maximum of 179 sites). Principal findings with respect to sites 66 The principles applying to the construction of development consents are well known. In construing a consent, regard is not to be had to extrinsic material unless it is incorporated by reference (expressly or impliedly) in the consent or is otherwise permissible to consider (such as the nature of the site or the meaning of markings on plans) (see, for example, Ryde Municipal Council v The Royal Ryde Homes and Another (1970) 19 LGRA 321 and 323 – 324 per Else-Mitchell J, Parramatta City Council v Shell Co of Australia Ltd [1972] 2 NSWLR 632 at 637 per Hope JA, Auburn Municipal Council v Szabo and Another (1988) 67 LGERA 427 at 433 to 434 per Hope J, Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council [No 2] (1993) 78 LGERA 404 at 407 – 408 per Handley JA, Hubertus Schuetzenverein Liverpool Rifle Club Ltd v Commonwealth of Australia (1994) 51 FCR 213; 85 LGRA 37 at 43 to 46 per Wilcox J, and Woolworths Ltd v Campbells Cash and Carry Pty Ltd (1996) 92 LGERA 244 at 249, 251 per Sheller and Cole JJA respectively). 67 These principles do not apply to the making of findings of fact with respect to the existence or alteration of sites on the land over time. I am entitled to consider all of the material before me with respect to such findings of fact (see, in particular, ss 38(1) and (2) of the Land and Environment Court Act 1979). 68 I am satisfied that, as at 10 October 1983, sites existed on the land as shown on the 10 October 1983 development consent plan (A1-3380/20). I infer that such sites continued to exist on the land as at 1 December 1986. I am not satisfied that any sites existed on the land, as at 1 December 1986, to the north of 15th Avenue. Hence, sites to the north of 15th Avenue were not, at any time, within the meaning of "existing park" as defined in Ordinance 71. 69 I am also satisfied, however, that the sites between the southern boundary of the land extending up to 15th Avenue were materially altered after 1 December 1986 (probably at some time after 1994 and the RTA resumption). I draw this inference by comparing the layout shown on the 10 October 1983 plan with the layout shown on the plan before me in the present appeal and by observing that I infer that the only changes to the physical layout proposed (compared to the present situation on the ground) are those shown in Exhibit 10. By this process, I can draw inferences with respect to the alterations made to sites on the ground after 1 December 1986. 70 The 10 October 1983 plan shows sites between 3rd and 15th Avenues in a materially different configuration from those shown on the plan the subject of the present appeal. For example: - (i) between each of 14th and 15th Avenues and 13th and 14th Avenues and 12th and 13th Avenues, the 1983 plan shows 6 sites, and the present plan 8 sites, (ii) between 11th and 12th Avenues, the 1983 plan shows 4 sites and the two new amenities blocks, and the present plan 1 or 2 sites, (iii) between 8th and 9th Avenue the 1983 plan shows 10 (perhaps 11) sites, and the present plan 13 sites, (iv) between 5th and 6th Avenue the 1983 plan shows 14 sites, and the present plan 15 sites, (v) between 4th and 5th Avenue the 1983 plan shows 12 sites, and the present plan 14 sites, (vi) between 3rd and 4th Avenue the 1983 plan shows 10 (perhaps 11) sites, and the present plan 13 sites, (vii) the 1983 plan shows no sites in a triangle of land between 2nd and 3rd Avenues and the river, and the present plan 6 sites in that area, and (viii) the 1983 plan shows a double row of sites between 1st and 2nd Avenues and the present plan a single row of sites (consequent upon the RTA resumption of part of Portion 314). Ms Ormella, in Figure 4 of her statement, provides a general representation of some of the differences between the plan and the development consent plans. Leaving aside the area shown for "van and auxiliary storage" (as to which, see below), I consider that this plan also supports my conclusion that most of the sites on the caravan park have been materially altered after 1 December 1986. 71 Accordingly, I am satisfied that the vast majority of sites between the southern boundary of the land and 15th Avenue have been, in one or other respect, materially altered at some time after 1 December 1986. As such, I am not satisfied that any of the sites between the southern boundary of the land and 15th Avenue remain sites which were "in existence, or under construction, as at" 1 December 1986. Where a site has been materially altered after 1 December 1986, it can no longer fall within that description. 72 It follows that I consider that, irrespective of the proper construction of the legislation, the sites on the land (for the reasons given), as a matter of fact, are not within the definition of "existing park" in Ordinance 71 and do not benefit from any exemption under that Ordinance which may have continued. Nevertheless, as I heard submissions on the operation of the legislation and anticipate that my conclusions on that issue may be of assistance to the parties, I also propose to express my conclusions in that regard. Construction of the instruments 73 The applicant relies on a circular issued by the Department of Planning on 14 September 2005 (Circular PS 05-007) with respect to the 2005 Regulation to support its argument that all exemptions, which applied to the Banora Point Caravan Park on the coming into force of Ordinance 71, continue to apply under the 2005 Regulation (leaving aside, for the purpose of this discussion, my factual findings above). The applicant refers, in particular, to certain paragraphs on p 2 of the Circular which read as follows: Application of the new Regulation All applications to operate a park, ground or estate or amend an existing approval that are determined on or after 1 September 2005 are subject to the new Regulation. The new Regulation also applies to the installation of moveable dwellings, associated structures and annexes on or after 1 September 2005. However, the new Regulation is not retrospective. Parks, grounds and estates whose current approval was granted prior to the commencement of the new Regulation can continue to operate under that approval. Moveable dwellings lawfully installed before the commencement of the new Regulation, can stay in their present locations without any upgrades being required. Ordinance 71 (introduced 1986 and repealed in 1993) exempted "existing parks" from the requirement to comply with certain of that Ordinance's provisions (eg regarding maximum distance of dwellings from fire hydrants, site setbacks from boundaries, and visitors' parking). Those exemptions (where applying) are carried across to the former Regulations and apply also under the new Regulation under its savings provisions. 74 The Council contends that the Circular is not extrinsic material to which regard may be had in construing the 2005 Regulation (or the 1995 Regulation, or Ordinance 71) because the instruments are not ambiguous, the Department of Planning is not the relevant Department with responsibility for the 2005 Regulation or Ordinance 71 and, insofar as the earlier instruments are concerned, the Circular was published much later than those instruments. Those submissions are persuasive. 75 Section 34(1) of the Interpretation Act 1987 relevantly provides that: (1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material: (a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or (b) to determine the meaning of the provision: (i) if the provision is ambiguous or obscure, or (ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable. 76 Accordingly, and leaving aside the Council's other grounds of objection, I may not have regard to the Circular except to confirm that the meaning of a provision is the ordinary meaning conveyed by the text of the provision or unless I conclude that a provision is ambiguous or obscure or if the ordinary meaning conveyed by the text of the provision leads to a result that is manifestly absurd or is unreasonable (see, for example, Roads & Traffic Authority (NSW) v Ashfield Municipal Council (2005) 141 LGERA 278 at [111], Newcastle City Council v Travis McShane (No 3) [2005] NSWCA 437 at [2] and [33], Saraswati v The Queen (1991) 172 CLR 1 at 21 – 23). 77 The provisions of Ordinance 71 are not ambiguous or obscure. The provisions, having regard to the context and underlying purpose of the Ordinance (namely, the purpose which I infer, being the orderly regulation of existing and new caravan parks in the interests of public health, safety and amenity generally by reference to standards perceived to be appropriate at that time), also do not lead to a result that is manifestly absurd or is unreasonable. Relevantly: (1) All new caravan parks were required to comply with Ordinance 71. (2) All existing caravan parks were required to comply with Ordinance 71 except where an express exemption was provided. (3) The Ordinance provided existing parks with two classes of exemptions. First, requirements which did not apply to existing parks at all. Secondly, requirements which did not initially apply to existing parks, but which would thereafter be implemented by a programme of works. (4) "Existing parks" were given a narrow meaning. A park, which had been approved but not constructed, was not an existing park. Where a park had been approved and sites within the park had been (in part or whole) constructed, only those sites in fact constructed or under construction, as at 1 December 1986, were "existing parks". All sites where construction had not yet commenced were not within the meaning of "existing parks" and thus could not benefit from any exemption. 78 I consider that I am not permitted to have regard to the Circular in construing Ordinance 71 because the ordinary meaning of the provisions of that Ordinance are clear and do not lead to a manifestly absurd or unreasonable result. 79 I turn now to the 1995 Regulation. The provisions of the 1995 Regulation are not ambiguous or obscure. The provisions, having regard to the context and underlying purpose of the 1995 Regulation (namely, the purpose which I infer, being the orderly regulation of existing and new caravan parks in the interests of public health, safety and amenity generally by reference to standards perceived to be appropriate at that time), also do not lead to a result that is manifestly absurd or is unreasonable. Relevantly: (1) The concept of an "existing park" was not continued. (2) Licences in force immediately prior to 1 September 1995 were taken to be approvals under the 1995 Regulations (see cl 110(2) and cl 10 of the Local Government (Savings and Transitional) Regulation 1993). (3) Any exemption under Ordinance 71 that, as at 1 September 1995, remained in force with respect to sites within the meaning of "existing parks" (as defined in Ordinance 71) did not continue generally under the 1995 Regulation. Instead, any such exemption was taken to be a condition of the approval for the caravan park, whether that approval was a licence taken to be an approval or was a renewed or granted approval in force under the 1995 Regulation. 80 I turn now to the 2005 Regulation. Again, I consider the provisions of this Regulation to be unambiguous. Relevantly: (1) An approval in force immediately prior to 1 September 2005 is taken to be an approval under the 2005 Regulation (see cl 175). Such an approval continues for its ordinary duration. Any exemptions deemed to be conditions of that approval thus also continue for the duration of that approval. (2) If such an approval is renewed under s 107, its conditions (including deemed conditions by way of any exemption) also continue. (3) Otherwise, in order to obtain a grant of approval, the caravan park is required to comply with the 2005 Regulation (or an objection under s 82 must be submitted and upheld). 81 I consider the construction which I have adopted above to be the ordinary meaning of the words of the instruments (construed in context) and to accord with what I infer is the underlying purpose or object of the instruments (to provide for the orderly regulation of existing and new caravan parks in the interests of public health, safety and amenity as perceived to be appropriate from time to time). Ordinance 71 recognised that existing parks (as narrowly defined in the Ordinance) should benefit from certain exemptions. Some exemptions were to be phased out by implementing programmes of works. Others could remain for the duration of any approval in force under the Ordinance. Under the 1995 Regulation, such exemptions (as existed at 1 September 1995) continued even if the approval was not renewed, but (instead) a new approval granted. Under the 2005 Regulation, however, such exemptions (if still in force) continue only so long as the approval (in force under the 1995 Regulation) remains in force under the 2005 Regulation. 82 I consider this to be the result (principally) of the absence of a clause equivalent to cl 110(3) and (3A) of the 1995 Regulation in the 2005 Regulation. That is to say, had it been intended that such an exemption would continue other than through the continuation (or renewal) of an approval in force as at the repeal of one instrument and the coming into force of another, then express words to achieve that result would have been necessary. Express words to that effect do appear in 110(3) and (3A) of the 1995 Regulation, but do not appear in the 2005 Regulation. Clause 175 of the 2005 Regulation does not continue the effect of cl 110 of the 1995 Regulation. It continues the effect of acts, matters and things which themselves had effect under the 1995 Regulation. Such acts, matters and things are facts to be found (or not) in the ordinary course. 83 Moreover, I do not consider that result to be manifestly absurd or unreasonable. The exemptions not subject to the programme of works requirements remained available for the duration of Ordinance 71. The exemptions that remained in force were also available (as conditions of any approval) for the duration of any approval in force under the 1995 Regulation (be it a granted or renewed approval). Any such exemptions can still be relied upon for the duration of any approval in force as at the repeal of the 1995 Regulation or for the duration of any such approval as renewed. However, once a fresh approval is required under the 2005 Regulation, the transitional arrangements are exhausted; the caravan park must comply with the 2005 Regulation or an objection under s 82 must be upheld. 84 The Circular (if I could have had regard to it) says nothing to the contrary of the conclusions that I have reached. The Circular speaks of parks being able to continue to operate under any approval in force as at the repeal of the 1995 Regulation (including by reference to any exemptions then in force). I agree. The Circular does not say that the exemptions continue in perpetuity after such an approval has lapsed or if such an approval is not renewed. 85 Accordingly, I consider that, irrespective of my factual findings relating to the development of the Banora Point caravan park, the present application falls for determination under the 2005 Regulation. Any exemptions afforded by Ordinance 71, as continued by any approval in force under the 1995 Regulation, ceased to be available on the making of an application for a fresh approval required to be determined after the coming into force of the 2005 Regulation. Further, and in any event, I could not be satisfied on the material available to me that any exemptions enjoyed by the caravan park, in fact, continued as deemed conditions of any approval under the 1995 Regulation in force immediately prior to 1 September 2005. 86 It follows that I do not accept the applicant's submission that it has the benefit of any exemptions from the 2005 Regulation on three grounds: - (i) on the facts I have found, none of the sites are within the meaning of "existing park" in Ordinance 71, (ii) the material available is inadequate to persuade me that, if any site was within the definition of "existing park", the site benefited from any exemption after 1 December 1986 or that any such exemption was continued in force (until immediately prior to 1 September 2005) as a condition of approval under the 1995 Regulation, and (iii) as a matter of construction, I consider that any such exemption ceased to apply to the making of a fresh application for approval required to be determined under the 2005 Regulation. Construction of the development consents 87 For the reasons set out below, it is also not necessary that I express my conclusions with respect to the construction of the various (often incomplete) development consents tendered in evidence before me. Again, however, I heard submissions on this issue and anticipate that my conclusions may assist the parties. I propose, therefore, also to set out my conclusions on this issue. 88 I am satisfied that the 14 November 1967 development consent authorised the use of the land between the southern boundary of the site and 15th Avenue as a caravan park. I am not satisfied that this consent authorised the use of any land for any purpose beyond 15th Avenue. In this regard, the terms of the notice of determination refer to both Portions 314 and 382. The area between 14th and 15th Avenues is on Portion 382. Accordingly, the conclusion that I have reached is consistent with the terms of the consent. That conclusion is also consistent with the terms of the subsequent consents. Insofar as Mr Kennan gave an opinion to the contrary, I do not accept that opinion. 89 I infer that the 14 November 1967 development consent incorporated an accompanying plan or plans (which neither party can locate). I consider that I am entitled to have regard to the subsequent consents to draw inferences about the content of the plans incorporated by reference into the 1967 consent (as I would have been entitled, had those plans been available, to consider the plans themselves). The 10 October 1983 approved plan shows the sites extending only to 15th Avenue. The 17 March 1986 development consent refers to an "extension of existing caravan park to accommodate 36 movable dwelling sites". Those sites, as the 24 June 1994 consent and accompanying plans disclose, are the sites to the north of 15th Avenue. All of these facts support the inference that I draw that the 1967 consent authorised the use of the land from its southern boundary to 15th Avenue for the purpose of a caravan park. 90 I am also satisfied that the 14 November 1967 development consent, through the plans which it approved, regulated the overall number and layout of sites to be located between the southern boundary of the land and 15th Avenue. I do not accept Mr Kennan's opinion or the applicant's submissions to the contrary. I reach this conclusion by reason of: - (i) the reference to the accompanying plans in the consent notice, (ii) the conditions of consent which I consider to indicate the existence of a site layout plan, and (iii) the nature of the development approved by the consent. 91 The question of the number of sites approved by the 1967 development consent, absent the approved plan, is not easy to resolve. I do not accept Mr Kennan's opinion that the consents do not regulate the maximum number or layout of the sites on the caravan park. I consider that opinion to be inconsistent with the conditions of the consents (particularly the 14 November 1967 development consent). If necessary, I would be prepared to infer that the overall number of sites authorised by the 14 November 1967 development consent between the southern boundary of the land and 15th Avenue is the number as shown on the 10 October 1983 plan. Ms Ormella, town planner, gave evidence that the 10 October 1983 plan shows a total of 154 sites. I accept that opinion. 92 Ms Ormella considers that the Council subsequently recognised (by approvals it gave) 162 sites on the area between the southern boundary of the site and 15th Avenue. I would be prepared also to accept that evidence. Ms Ormella adds to that figure the further 36 sites the subject of the 1986 consent. She deducts 23 sites which were removed by the RTA resumption and adds the further 5 sites which were the subject of the 1994 consent. Ms Ormella, having performed these calculations, considers the number of sites authorised by all consents on the land to be 180 sites. If I had to determine the overall number of sites authorised by development consents to be placed on the land, I would accept Ms Ormella's evidence. 93 Contrary to the Council's submission, I would not be prepared to draw any inference on the material tendered before me that the development consents applying to the land regulated the allocation of long and short-term sites. I am not able to discern anything in the consents that would support that inference. I consider that the allocation of long and short-term sites is not regulated by the various consents in this case. As such, the provisions of State Environmental Planning Policy No 21—Caravan Parks are not relevant to the operation of those consents (but would be relevant to any new development application). Compliance with the 2005 Regulation 94 Ms Ormella said that she had checked the site areas shown on the plan for compliance with the 1995 Regulation in a fair amount of detail (although she had not, for example, measured all sites). Ms Ormella had not otherwise undertaken a clause-by-clause analysis of the compliance of the plan with the 1995 or 2005 Regulations. Mr Kennan said that he had not checked the plan for compliance with the Regulations and that his opinions were given subject to the requirement that the plan comply with the 2005 Regulation. 95 It is evident that the plan does not comply with the 2005 Regulation in a number of respects. For example, Mr Kennan agreed with each of the following propositions (which I also accept). (1) Sites 23, 108, 109 and 110 are each shown on the plan as long-term sites, but the area of each sites is less than the minimum area specified in cl 85(1) (that is, 80 square metres). (2) The plan makes no specific provision for a forecourt when such provision is required by cl 93. (3) The access road (as it passes sites 67 and 68) is 5 metres wide when (if it is a two-way road – which I am satisfied it is), cl 94(1)(a) requires a minimum width of 6 metres. 96 Mr Kennan said that he was of the opinion that the plan needed to be amended in order to comply with the 2005 Regulation. He thought that the plan could be amended to achieve compliance with the items specified above, in that there was sufficient space on site to accommodate each such alteration required. Ms Ormella was not confident that the alterations could be physically accommodated on the site without consequential effects which (I infer) may be material to the operation of the caravan park in accordance with the 2005 Regulation. 97 The applicant accepted that, if its argument on the savings and transitional provisions was correct then, nevertheless, the plan did not comply with two of the requirements of Ordinance 71 – namely, cl 22(1) (minimum site areas) and cl 37 (the forecourt requirement). Having regard to the terms of cl 108, if I had accepted the applicant's arguments, the known non-compliance with Ordinance 71 would have related to cl 22. The applicant suggested imposing a deferred commencement condition to address the non-compliances as follows: Deferred Commencement Condition Approval is not to operate until Applicant Blackington Pty Ltd prepares and submits to the Respondent Council and the Respondent Council approves a community plan which shows: + a forecourt complying with clause 93 of the Local Government (Manufactured Homes Estate, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005 ("the Regulation"); + boundaries adjusted to ensure site numbers 23, 108, 109 and 110 comply with the requirements of clause 85 of the Regulation; + compliance with any condition imposed by the Land and Environment Court in granting approval which needs to be incorporated in the community plan. 98 The applicant also suggested that I could distinguish between the southern and northern parts of the land if I concluded that the sites on the southern part were within the "existing park" definition, and the sites on the northern part were not. That is, that the 2005 Regulation would apply to the northern part of the land and Ordinance 71 would apply to the southern part of the land. 99 None of the applicant's suggestions provide an adequate way forward for this application. First, the application is not supported by information that satisfies me that the operation as shown on the plan would comply with the detailed requirements of the 2005 Regulation (or, indeed, Ordinance 71). Secondly, the plan does not comply with the 2005 Regulation in at least three material respects (or Ordinance 71 in at least one material respect – even assuming, contrary to my conclusions, that all sites are part of an "existing park"). Thirdly, I am also not satisfied, on the material available to me, that the plan can be made to comply with the 2005 Regulation by reference to what is actually on the ground, without giving rise to other potential non-compliances with the 2005 Regulation. I prefer the evidence of Ms Ormella to that of Mr Kennan in this respect. 100 In circumstances where: - (i) I have concluded that the operation of the whole of the caravan park is subject to the 2005 Regulation, (ii) s 89 provides that the council must not approve the application if the activity or the carrying out of the activity for which approval is sought would not comply with the requirements of any relevant regulation (a limitation by which I am also bound on appeal), (iii) neither Ms Ormella nor Mr Kennan have checked the plan to ensure compliance with the 2005 Regulation, (iv) there are known to be at least three material non-compliances with the 2005 Regulation as identified above, (v) I am not satisfied that the plan can be amended in order to ensure compliance in a manner which is capable of being fulfilled on the ground without having consequences for other aspects of compliance, and (vi) I am not prepared to accept the evidence of Mr Tschannen (who holds no relevant qualifications) with respect to the compliance of the plan with the 1995 (and thus the 2005) Regulation, I do not consider it appropriate that I adopt the course the applicant has suggested of imposing a deferred commencement condition on an approval. 101 The Council submitted that the terms of s 89 precluded me from adopting the course suggested by the applicant. This submission focused on the words "…the activity for which approval is sought" in s 89(1)(a). That is, that the activity for which approval is sought must itself comply with the relevant regulation, not the activity as amended by any condition. As I have determined that it is inappropriate for me to accede to the applicant's suggestion, it is not necessary that I address this submission. 102 As the carrying out of the activity proposed on the plan would not comply with the 2005 Regulation, and I am not willing (for the reasons given) to impose conditions requiring compliance, it follows that I must refuse the application and dismiss the appeal. 103 If s 89(1)(a) vested me with discretion in the face of the non-compliances with the 2005 Regulation, I would not have exercised that discretion in the applicant's favour for the same reasons that I consider that imposing conditions to achieve compliance is inappropriate in this case (namely, the fact that I am not satisfied on the available material that compliance can physically be achieved absent other consequential, and unknown, impacts, including other potential non-compliances with the 2005 Regulation). Other considerations 104 There are a number of other considerations in this matter that would have caused me to dismiss this appeal. 105 First, the application seeks approval for a total of 197 sites when, on the material available to me, I infer that the maximum number of sites authorised by the consents applying to the land is 180 sites. 106 Secondly, the plan shows sites located in areas where, on the material available to me, I infer that no sites were approved (but, rather, the area was to be set aside for open space purposes). In this regard, I particularly have in mind the triangle of land between 2nd and 3rd Avenues that is shown on the consent plans (which are available) as an open space area. 107 Having regard to cl 80 of the 2005 Regulation, I consider that it would be inappropriate to grant approval to an application under the Local Government Act 1993 in circumstances where I am not satisfied that the approval would accord with the requirements of the development consents applying to the land. 108 I do not hold the same concern (as expressed by the Council) about the proposed "van and auxiliary storage" area. I consider that such a use (if properly detailed) may be ancillary to the authorised caravan park purpose. Nevertheless, on this application, the applicant has provided insufficient information for me to reach a concluded view about the nature of this use one way or another. 109 Thirdly, I have not addressed the proposed conversion of long-term to short-term sites. A significant amount of the evidence in these proceedings concerned the potential impacts of that conversion. Mr Tschannen (the sole shareholder of the applicant and the manager, albeit not on a day to day basis, of the caravan park) gave evidence of the purpose of the conversion (to separate short and long-term residents and increase the amenity of the latter), and the benefits it would bring to the caravan park in terms of overall amenity. He also gave evidence in reply to evidence given by long-term residents (see below) about the efforts made (or which would be made) to ensure that any person affected by the conversion would be adequately compensated and otherwise accommodated. 110 Mr Smart is a long-term resident of the caravan park, occupying site 235 (shown as site 159 on the plan). That site is and will remain a long-term site. Mr Smart said that the applicant had changed the site designations in accordance with the plan the subject of the appeal without notice to the residents, which had caused him significant difficulty as site 235 had been his address for 11 years before the re-designation. He now does not receive mail at the park but has hired a postal box in South Tweed. Mr Smart was critical of the operation of the caravan park and said that he would like to live elsewhere, but that he could not find a location capable of accommodating his relocatable home (which is quite large). 111 Mr Hogg is also a long-term resident of the caravan park, occupying site 122 (shown as site 163 on the plan). That site is and will remain a long-term site. Mr Hogg was also concerned that the community map for the caravan park had changed on a number of occasions without prior notice to residents. 112 A community map is defined by cl 4 of the 200 Regulation to be a plan accurately showing the access roads, community amenities and community buildings within the caravan park, the number, size, location and dimensions of dwelling sites within the caravan park and the particular off-site parking space or spaces (if any) designated for use by the occupier of the dwelling site. These facilities are regulated by either development consents or approvals under the Local Government Act 1993. In those circumstances, I consider the concerns expressed by Mr Smart and Mr Hogg about alterations to the community map without notice to long-term residents to be reasonable. A community map cannot be altered at will and remain a "community map" as defined. If the community map is accurately to represent all of the facilities as defined and as they appear on the ground, and those items themselves are regulated by either development consents or approvals under the Local Government Act 1993, it follows that some formal modification of the applicable consents or approvals will be required in order to modify the community map. 113 Mr Hogg gave evidence (on his own behalf and for a number of other residents) about the potential impacts of the conversion of long-term to short-term sites. If a site cannot be found within the park, then the long-term resident must be accommodated elsewhere. Their relocatable home may not be able to be accommodated elsewhere (due to a shortage of sites) and the person may have to accept a different form of accommodation. Mr Hogg said that in his experience the compensation paid simply was not equivalent to the true costs incurred by the person who has had to move. Mr Hogg identified a number of residents who would be affected by the approval of the present application. He also gave evidence of similar problems with the site re-designation and mail as experienced by Mr Smart, and was similarly critical of the operation of the caravan park. 114 Mr Ferns is a tenancy advice and advocacy worker. He gave evidence to the effect that, in practice, tenants who are required to relocate frequently experience real difficulties in protecting their assets, finding appropriate alternative accommodation and obtaining adequate compensation. Mr Ferns was cross-examined about a deed that the applicant had negotiated and was willing to offer to persons affected by the conversion of long-term to short-term sites. However, Mr Ferns had no involvement with the preparation of the deed and was not able to take that aspect of the matter further. 115 Mr Tschannen, as noted, gave evidence in reply to this evidence. He explained the operation and management of the caravan park, and the circumstances that had given rise to the particular concerns of the residents. He also identified that there were four sites (35, 36, 45 and 104) which were marked for conversion from long-term to short-term and which were occupied (or recently occupied). 116 Adopting the reasoning in Revilla (No. 2), the evidence referred to above would not be relevant to the determination of the application. Some of the evidence (in particular, about the past operation of the caravan park) is unrelated to the application. The evidence about the potential impacts of the conversion of long-term sites to short-term sites (in circumstances where a site is presently occupied by a long-term resident) would ordinarily be considered a relevant impact of the approval sought (particularly in circumstances where, on the available material, I do not consider the allocation of short and long-term sites to be regulated by the applicable development consents). 117 As noted above, because I have determined that the application must (and ought) be refused on other grounds, I do not propose to resolve this issue other than to observe that, if such evidence is relevant, I would have accepted the concerns of the residents and Mr Ferns about relocation and its potential impacts on people who are presently long-term residents of sites marked for conversion to short-term sites. I anticipate, however, that it may have been possible for those concerns to be addressed by agreed conditions. 118 The applicant submits that other discretionary considerations weigh in favour of approval, in particular, the potential for further disruption to residents of the caravan park if the layout has to be converted back to the earlier approval referred to in the consent orders in the Class 4 proceedings (which approval may also have lapsed). While it may be unfortunate that this decision has not brought final resolution to the question of the operation of the caravan park, that result (given my reasons), first, was largely in the control of the applicant and, secondly, is inherent in the scheme of regulation that contemplates five-year approvals for caravan parks. The considerations raised by the applicant do not outweigh those matters which I consider lead to refusal of this application. Orders 119 For the reasons set out above, my orders are: (1) The appeal is dismissed. (2) Application for approval to operate the Banora Point Caravan Park, 2 Pacific Highway, Banora Point lodged on 5 February 2004 is refused. (3) The exhibits are returned. (4) Costs are reserved. ******************* 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.