Reported Decision : 152 LGERA 324 Land and Environment Court of New South Wales CITATION : Springs Golf Club Pty Ltd v Gosford City Council [2007] NSWLEC 111 APPLICANT Springs Golf Club Pty Ltd PARTIES : RESPONDENT Gosford City Council FILE NUMBER(S) : 11132 of 2006 CORAM: Talbot J KEY ISSUES: Existing Use Rights :- Whether expiration of a "sunset clause" allowing development consent to be granted for a limited period generates existing use rights for development the subject of consent granted under the clause that is otherwise prohibited. Environmental Planning and Assessment Act 1979 s 106, s108 LEGISLATION CITED: Environmental Planning and Assessment Regulation 2000 cl 41(1)(b),(c),(d). Gosford Local Environmental Plan No. 243 cl 97A Interim Development Order No. 122. CASES CITED: Sericott Pty Ltd v Snowy River Shire Council, Snowy River Shire Council v Sericott Pty Ltd and Others (1998) 100 LGERA 71 ; Sericott Pty Ltd v Snowy River Shire Council (1999) 108 LGERA 66 DATES OF HEARING: 2/03/2007 DATE OF JUDGMENT: 7 March 2007 APPLICANT I Hemmings (Barrister) SOLICITORS Cameron & Myers LEGAL REPRESENTATIVES: RESPONDENT P Tomasetti (Barrister) SOLICITORS Storey & Gough JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Talbot J 7 March 2007 1132 of 2006 SPRINGS GOLF CLUB PTY LTD V GOSFORD CITY COUNCIL JUDGMENT 1 Talbot J: The applicant is the owner of Lot 165 DP 755253 on Peats Ridge Road at the corner of George Downes Drive within the area of the Gosford City Council. The land is also known as portion 165, Parish of Popran. 2 Development on the land is controlled by deemed environmental planning instrument Interim Development Order No. 122 gazetted 30 March 1979 (IDO 122). The land is partly within zone No. 1(a) Rural (Agriculture) and zone No. 1(b) Rural (Highway Protection). According to the Table to cl 5 in the IDO, use for the purpose of a golf course or golf club is prohibited on the subject land. 3 On 19 March 1990 the Minister for Planning made Gosford Local Environmental Plan No. 243 which was published in the NSW Government Gazette No. 44 on 30 March 1990. LEP No. 243 amended IDO 122 by inserting the following cl 97A:- Development of certain land at Peats Ridge (1) This clause applies to portion 165, Parish of Propan, corner State Highway No. 26 and George Downes Drive, Peats Ridge, being the land shown edged heavy black on the map marked "Gosford Local Environmental Plan No. 243" deposited in the office of the Council. (2) Subject to subclause (3), nothing in this Order prevents a person, with the consent of the Council, from carrying out development on the land to which this clause applies for the purposes of a golf course and ancillary uses. (3) The Council shall not grant consent to development referred to in subclause (2) after the expiration of 2 years from the day on which Gosford Local Environmental Plan No 243 took effect or such later date as the Minister may, before the expiration of that period, notify by order published in the Gazette. (4) Nothing in subclause (3) shall prevent the Council from granting consent to the carrying out of alterations or extensions to or the rebuilding of a building or place being used for a purpose for which consent has been granted in accordance with this clause. 4 The expressed aim of LEP 243 was to enable development for the purposes of a championship golf course with associated facilities on the subject land. In effect the LEP was a spot re-zoning of portion 165. 5 On 14 December 1990 a development application was received by the council seeking consent to develop a "Proposed Championship Golf Course" on portion 165. By letter 22 July 1991 the council notified the granting of consent subject to conditions. The consent has been acted upon and the golf course has been built. 6 A further application for development consent made by the applicant was received by the council on 30 December 2005. The development application No. 29450/2005 seeks consent for development of "Tourist Accommodation & Ancillary Buildings" at an estimated cost of $3,500,000. The proposed development is prohibited under IDO 122 as it is neither development that does not require consent or development that needs consent. The period of 2 years provided in clause 97A(3) has expired. 7 The applicant contends that the use for a golf course and ancillary uses that was within a short "window of opportunity" a permissible use pursuant to cl 97A(2) is, once again, a prohibited use and that accordingly, it is open for the applicant to make an application to change the existing use to another prohibited use in accordance with the incorporated provision in Environmental Planning and Assessment Regulation 2000 cl 41(1)(d), prior to its present amendment, pursuant to ss 106 and 108 of the Environmental Planning and Assessment Act 1979 (EPA Act). 8 Section 106 contains a definition of existing use and for the present purposes relevantly provides:- (b) the use of a building, work or land: (i) for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and 9 The council submits that the use of the subject land for a golf course is not an "existing use" within the meaning of the abovementioned part of the definition in s 106. The Applicant's case 10 On 25 January 2007 the Registrar directed (by consent) that the question in respect of existing use rights raised by the following issue be dealt with as a Preliminary Point:- 1. Whether approval should be granted as the proposed 'tourist units' are not listed as permissible in the 1(a) Rural (Agriculture) zone or the 1(b) Rural (Highway Protection) zone, clause 5 of the Gosford Interim Development Order No. 122 ("IDO 122") and the subject site does not enjoy existing use rights. 11 Mr Hemmings, who appears for the applicant, submits that the question to be asked by the Court is:- Could a development application be made today for the use of the land for a golf course and ancillary uses? 12 Since the answer to that question is clearly "no", Mr Hemmings says that the use must be categorised as an existing use and that it follows that the incorporated provisions apply as well as cl 97A(4) which is nothing more than a partial re-statement of Regulation 41(1)(b) and (c). 13 The applicant's argument is that cl 97A(3) has the effect of prohibiting development for the purposes of a golf course from 30 March 1992 and is therefore a provision of an environmental planning instrument having the effect of prohibiting the use as contemplated by s 106(b)(i). The council's case 14 Mr Tomasetti, who appears for the council, categorises the effect of cl 97A(2) as a window of opportunity to obtain development consent for development which would otherwise be prohibited by the provisions of IDO 122. According to Mr Tomasetti the consequence is as follows:- 1. The date of the provision of an environmental planning instrument having the effect of prohibiting the use for the purpose of a golf course contemplated in s 106(b)(i) is the date when the IDO was gazetted in 1979. 2. The expiration of two years from the day on which LEP 243 took effect is not the date of the commencement of the provision of an environmental planning instrument having the effect of prohibiting the use but rather it is the date when the suspension of the provision which was imposed by the IDO on 30 March 1979 expired. 3. The provision of cl 97A(2) permits and facilitates the carrying out of development provided the consent of the council has been obtained within the two year period specified in subclause (3). The development therefore is not prohibited. 4. The development consent granted by the council in July 1991 was granted after the commencement of the provisions of the IDO which prohibited it and therefore is not the use of land for which development consent was granted before the commencement of the provision having the effect of prohibiting it. 5. LEP 243 commenced on 30 March 1990 and accordingly the development consent granted in July 1991 was granted after the commencement of the provision upon which the applicant relies for the effect of prohibiting the use. 6. Section 106(b)(i) applies to the specific use for which development consent was granted and not to the generic use of a golf course which is the relevant prohibited use. The use for which the development consent was granted is specifically allowed to continue pursuant to cl 97A(2). 15 Generally speaking I agree with Mr Tomasetti. Resolution of the dispute 16 In Sericott Pty Ltd v Snowy River Shire Council, Snowy River Shire Council v Sericott Pty Ltd and Others (1998) 100 LGERA 71 Sheahan J considered the effect of a provision which had an effect not dissimilar to cl 97A. At 81 Sheahan J identified an issue as whether works carried out on the site constituted an existing use. The argument appears to have proceeded on the basis that in order to determine the question of whether existing use rights applied, in the circumstances of that case, it was necessary only to determine the purpose and content of a consent granted during the period in which the relevant "sunset clause" operated. His Honour accepted at 85 and 88 that the effect of the clause was to prohibit development for the purpose of a subdivision after the designated expiry date. The issue that arises in this case does not appear to have been argued before Sheahan J and was not dealt with by the Court of Appeal when it dismissed Sericott's appeal ((1999) 108 LGERA 66). Accordingly, I consider myself free to determine the questions that now arise in these proceedings on the basis that the point was not taken in Sericott. 17 The purpose of existing use provisions is to ensure that changes in the planning law that make otherwise lawful development prohibited do not render an injustice. In the absence of existing use provisions the otherwise lawful development would have to cease. 18 Murray R, Wilcox (as he then was) identified the reason for existing use provisions in his text The Law of Land Development (1967) in dramatic but nevertheless apposite terms as follows:- Sheer practical necessity has dictated this. Except in an almost undeveloped area tremendous economic hardship and dislocation would occur if all occupiers of buildings and land were required to forthwith discontinue uses which failed to conform with a newly prescribed scheme. The outcry would be politically intolerable. If it were assuaged by adequate and prompt compensation the effect on the public purpose would be ruinous. The inevitable result would be that the planners in preparing a scheme would, except in rare cases, so zone land as to preserve the status quo. To do this would largely destroy the benefits of planning. "Existing use" provisions are therefore not only necessary but desirable. 19 Putting a provision such as cl 97A in context and proper perspective it is readily identified as a facultative provision, not with the effect of creating an existing use right pursuant to the meaning in s 106, but rather to allow in its own terms something to occur that would be otherwise against the current law. Hence the stipulation of a time limit during which the "window of opportunity" exists. It is not therefore "a provision of an environmental planning instrument having the effect of prohibiting the use". It does the opposite and in the face of an existing prohibition allows for the prospect of the use occurring with development consent, albeit for a limited period. 20 To the contrary of prohibiting the use, cl 97A expressly provides a means to legitimise the use if certain steps are taken within the limited time specified. 21 The date of commencement of cl 97A(3) was 30 March 1990 when LEP 243 had effect. The development consent was granted 25 July 1991. That is a date after the commencement of both the LEP amending the IDO and the IDO itself, not before. The use for the purpose of a golf course pursuant to and in accordance with the development consent is not prohibited. Clause 97A(2) expressly permits its continuation. The right to carry out alterations or extensions to or the rebuilding of a building or place being used for a purpose for which consent has been granted in accordance with cl 97A, subject to the consent of the council, is preserved by c 97A(4). This cornucopia of rights attached to the land by dint of cl 97A and the grant of development consent is the antithesis of prohibiting the use. 22 I conclude therefore that s 106 has no application and that there are no existing use rights attached to the subject land on that account. Orders 1. The answer to the preliminary point referred to the Court by the Registrar is that the subject land does not enjoy existing use rights and the current use of the land pursuant to Development Consent 29450/2005 is not prohibited. 2. Costs in relation to the preliminary point are reserved. 3. Exhibits may be returned. 4. Stood over for callover before the Registrar on 14 March 2007. 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