Land and Environment Court of New South Wales CITATION : Shoalhaven City Council v Cox [1988] NSWLEC 113 APPLICANT PARTIES : Shoalhaven City Council RESPONDANT Mr. Cox FILE NUMBER(S) : 40214 of 1988 CORAM: Stein J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning and Assessment Act CASES CITED: DATES OF HEARING: 06/04/1988 DATE OF JUDGMENT: 04/06/1988 APPLICANT Mr. Pannifex LEGAL REPRESENTATIVES: RESPONDENT Mr. McEwen JUDGMENT: HIS HONOUR: On 14 October 1986 in Class 1 application No. 10053 of 1986 I granted development consent to a caravan park and camping site at lot 2 Myola Road, Myola, subject to certain conditions. Condition 2 is in the following form:- "To preserve the future and existing amenity of adjoining residents the applicant shall provide a landscape "buffer" area along the western boundary of the caravan park with: A) Caravan sites 8 to 29 being located elsewhere on the site away from the western boundary and in lieu the substitution of 15 "tent" camping sites. B) The provision of a 5m wide densely planted "buffer zone" immediately abutting the western boundary of the site. C) Immediately adjoining the "buffer" zone described above a further area is to be provided of 10m in width, less densely planted and laid out so as to provide for 15 camping sites accessed from the adjoining internal service roadway. D) The installation of a 1.8m high cyclone mesh fence to the full length of the western boundary. E) Access to the beach for residents of the caravan park being confined to the eastern boundary abutting the Crown land reserve." The applicant Council now applies for a declaration that the respondent is in breach of Condition 2 of the development consent, in particular subparagraphs D and E thereof. It also seeks an order that the respondent comply with the said conditions within 30 days or such other period as the Court deems appropriate. The particular issue relates to a gap in the cyclone mesh fence along a small portion of the western boundary where a narrow tongue of the subject land protrudes between residential lots 53 and 54 to meet Catherine Street. According to the evidence the gap at Catherine Street is unfenced but has a gate which can be opened. The sides of the length of the tongue of land between lots 53 and 54 has a post and wire fence erected but not a 1.8m high cyclone mesh fence. The affidavit of the respondent Mr. Cox sworn 13 November 1987 deposes that he left a gap in the fence at Catherine Street between lots 53 and 54 "for the purposes of allowing people to pass and repass between the caravan park and Catherine Street". On behalf of the Council Mr. Pannifex submits that the evidence discloses that (a) the respondent has not installed a l.8m high cyclone mesh fence to the full length of the western boundary, and (b) the respondent is permitting residents of the caravan park to enter and leave via the gap in the fence at Catherine Street and is thereby in breach of Condition 2E which confines access to the beach for residents of the caravan park to the opposite and eastern side of the development. To the extent that the respondent may suggest that there is any ambiguity in the relevant condition, Mr. Pannifex relies on the following portion of the reasons for Judgment:- "I consider that the prevention of pedestrian movement across the common boundary between the caravan park and the adjoining residential area is a necessary feature of the new development, and accordingly consider that the installation of "cyclone" fencing is appropriate in this position. It appeared to find common ground that such a fence should be 1.8m high but in any event I find that height to be appropriate. It was also acknowledged in the evidence lead on both sides that a fence will assist in the establishment of the vegetation in the buffer zone. Further, I am persuaded that there should be no special provision for access from the caravan park to the adjoining residential area either via Lot 1 or the existing right of way pathway." On behalf of the respondent Mr. McEwen has taken me to a number of references in the evidence adduced in the Class l appeal. These are in support of his submission that the condition in question was not intended, nor did it relate to the tongue of land or, as it was referred to in the earlier proceeding "the right of way pathway". Mr. McEwen submits that the effect of my reasons, (quoted above), are to retain the existing access to Catherine Street via the tongue of land rather than to require it to be closed off by the erection of a cyclone fence. In my opinion there is no ambiguity in the particular conditions, nor in the reasons for Judgment. There has been no appeal from my decision, nor any application to the Court under section 102 of the Environmental Planning and Assessment Act to seek to amend the consent. The dispute as to access via the pathway was determined by my decision unfavourably to the applicant in the Class l proceedings. It appears that Mr. Cox is now seeking to reopen the issue. However, he cannot do it in this Class 4 application brought by the Council. At the highest some of the matters raised on Mr. Cox's behalf may be relevant to discretion. The breach of the Conditions 2D and E is plain. In so far as the respondent has raised discretionary considerations I take those matters into account. Nonetheless I conclude that the declaration and order sought ought be made. If they are not made access will continue to be had by caravan park users via the pathway to Catherine Street to the detriment of the amenity of the neighbouring residents. This was why the condition was imposed in the first place. In this respect the introductory words of the condition are material. The sensible course to follow would be to extend the existing cyclone fence on the western boundary across the prolongation between lots 53 and 54 rather than require fencing along the sides of the tongue to Catherine Street. This will obviously be cheaper and can no doubt be effected quickly. The respondent contends that the condition sterilises the tongue of land. However, even if this is so it can be no more than a discretionary factor which I take into account. But the land may not necessarily be sterilized and could be acquired by the owners of lot 53 or 54 and added to either lot. I make a declaration in terms of paragraph 1 of the application and further order that the respondent comply with Conditions 2D and 2E of the said development consent within 30 days of this day. The respondent is to pay the applicant's costs of the application. The exhibits may be returned. Associate 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.