Land and Environment Court of New South Wales CITATION : Blake v Lake Macquarie City Council & Anor [1989] NSWLEC 221 APPLICANT Blake PARTIES : RESPONDENT Lake Macquarie City Council & Anor FILE NUMBER(S) : 40198 of 1988 CORAM: Stein J KEY ISSUES: :- LEGISLATION CITED: Local Government Act Environmental Planning and Assessment Act Kirby P. in Fatsel Pty. Ltd. v. ACR Trading (1987) 64 LGRA 177 at 192; Cleaver v. Byron Shire Council ((1975) 31 LGRA 31)]; Parramatta City Council v. Hale ((1982) 47 LGRA 319 at 335); CASES CITED: Boulton v. Burwood Municipal Council, Land and Environment Court, Unreported 28 July 1988). ; Jacfin v. Taft Entertainment Co. (Unreported 3 October 1985); King v. Great Lakes Shire Council ((1986) 58 LGRA 366 at 371) ; Wattie Canneries v. Hayes ((1987) 74 ALR 202 at 216-7); Prasad v. The Minister (65 ALR 549 at 562-3). DATES OF HEARING: DATE OF JUDGMENT: 08/03/1989 APPLICANT LEGAL REPRESENTATIVES: Mr Tamberlin QC JUDGMENT: HIS HONOUR: By application filed in the Court on 6 September 1988 Alan Noel Blake sought a Declaration that a development consent granted on 6 June 1988 to the second respondent, the Australian Volunteer Coastguard Association Incorporated, is invalid. The notification of the Consent on 22 June 1988 expressed the approval to be for the purpose of a boat shed and slip rails relating to land described as a site off the end of Lambton Parade and an unnamed road, Swansea Heads and part of a Crown Reserve for public recreation. The applicant lives with his family virtually opposite the development at 2 Lambton Parade within a Residential 2(a) zone. A number of adjacent owners have associated themselves with the applicant in his opposition to the development. The validity of the consent is attacked on the following bases:- (i) The development is not a marina within cl.7(1) of the Lake Macquarie Local Environmental Plan, 1984 (the LEP). (ii) The development is not for a use permitted by cl.10 of the Lake Macquarie Local Environmental Plan, 1984. (iii) The Council did not consider or adequately consider a number of s.90 considerations, in particular the impact of the development on the environment and the detrimental economic effect of the development on the value of the property of the applicant and others. (iv) The Council misdirected itself as to relevant considerations. The Points of Claim are more extensive but at the hearing a number of paragraphs were not pressed by Mr. Tamberlin, Q.C., on behalf of the applicant. The subject land is located on the southern shore of the Swansea Channel adjacent to a wave trap wall. Access is gained off the end of Lambton Parade by an unnamed road. The applicant, which is an incorporated body of volunteers, applied to the Council in November 1987 to erect a single storey boat shed with 2 slip rails into the Channel, together with a small jetty. The proposed building incorporates shower and toilet facilities. The land is subject to the Lake Macquarie LEP and at all material times it appears that the Aldermen understood, upon advice from the City Planner, that the relevant zoning of the site was part Open Space 6(a) (Public Recreation) and part Open Space 6(b) (Special Recreation). However, at the hearing the Council contended that the land is zoned partly 6(a) and partly 6(c) Open Space (Local Reservation). The issue is one of significance because the permitted uses vary between the Open Space Zones. While marinas, defined by reference to the meaning ascribed in s.490A(1) of the Local Government Act, are permissible in 6(a), 6(b) and 6(c) zones, "recreation areas" are permissible in 6(a) and 6(c) but not in the 6(b) zone. "Clubs" are permissible in the 6(b) zone but not in the other Open Space zones. If the development is located outside the 6(b) zone the applicant does not dispute that the proposal constitutes a "recreation area" as defined by the LEP. However, the applicant submits that the uses in the 6(b) zone must be "public" uses and not private ones, as he maintains is the subject one. After receipt of the application the Council proceeded to advertise the development pursuant to which Mr. Blake and numerous others lodged objections and a petition. The Council also received some submissions in support. The City Planner reported in detail on the application to the Council Planning and Environment Committee. He recommended the application be deferred pending an inspection by Council and the holding of a public meeting with the applicant and adjacent owners. The Council deferred consideration and on 21 March 1988 held an inspection attended by 10 of the 16 Aldermen. Many local residents attended as did members of the second respondent. Following the meeting the Council resolved that it would not support the application in its then form but would give further consideration to a "building which blends in with the surrounding area, is of a lower height structure, and a design similar to the attached map". On 28 March 1988 a report on the inspection was received by Council and the matter deferred pending a public access address. On 18 April 1988 the applicant, Mr. Blake, addressed the Council as did Mr. Robert Suttie, representing the second respondent. On or about the same date the Volunteer Coastguard submitted an amended application to the Council which, inter alia, lowered the maximum height of the boat shed to RL 4.220 (an actual height of 3.25m with a roof line 2.85m lower than the original design). On 23 May 1988 the City Planner reported to the Planning and Environment Committee of Council (a Committee constituted by all of the Aldermen). He recommended refusal of the application on a number of grounds. The Committee (by majority) adopted the Planner's recommendation that the amended application be refused. However, the full Council met on 6 June 1988 and voted by majority not to adopt the Committee's recommendation of 23 May 1988 and approved the application subject to a number of conditions. Is the development a marina as defined? Cl.7 of the LEP defines "marina" by reference to in s.490A(1) of the Local Government Act. This section provides as follows:- "In this section "marina" means a pontoon, jetty, pier, or similar structure, designed or adapted to provide moorings for small boats used primarily for pleasure or recreation and includes ancillary works such as slipways, facilities for the repair and maintenance of boats and the provision of fuel, accessories and parts for boats, and of foodstuffs." On behalf of the applicant Mr. Tamberlin submits that the development is not a marina as defined because it is not a jetty or similar structure designed to provide moorings for small boats used primarily for pleasure or recreation. Since it does not come within the introductory words of the definition the later words relating to ancillary works such as slipways and other facilities for maintenance are irrelevant. The purpose of the boats used by the Coastguard is for rescue work. The building and use is essentially that of a boat shed to store two rescue vessels. For the Council Mr. Ayling submits that the proposed development is a marina. He places reliance on the small jetty providing moorings and the ancillary works including the slipways. On behalf of the second respondent Mr. Craig also submits that the development is a marina as defined by s.490A(1). It is a facility used primarily for recreation or one which is incidental or ancillary thereto. This latter submission involves the notion that a development which provides a jetty and boat house for an organisation whose prime objective is the rescue of small pleasure boats in trouble, is ancillary to a marina. In my opinion the development cannot be fitted into the definition in s.490A(1). The pivotal words in the definition are "for small boats used primarily for pleasure or recreation". The evidence does not allow me to conclude that the jetty or boat shed are to provide moorings for small boats used primarily for pleasure or recreation. The prime use of the development is to provide a boat shed for the rescue boats. The rescue boats are not used "primarily" for pleasure or recreation but to the contrary. In my opinion the development is not a marina defined by reference to the Local Government Act definition. The Chief Planner's advice to the Council was incorrect on this issue. Also, his reference to the definition of "marina" in Schedule 3 to the Environmental Planning and Assessment Act was irrelevant. In which zone(s) is the development situate? In his reports the City Planner advised the Council that the proposed development was located partly in Open Space 6(a) (Public Recreation) zone and partly in Open Space 6(b) (Special Recreation). It seems that the Council accepted this advice. Indeed, they had no reason to do otherwise since the zoning was never an issue until the subject proceedings were instituted and the Council filed Points of Defence which alleged that the site was zoned part 6(a), 6(b) and 6(c). A registered surveyor employed by the Council, Mr. Victor Kepreotis, gave evidence that he established the zoning boundaries for the purpose of the provision of a Certificate under s.150 of the Environmental Planning and Assessment Act, tendered in the proceedings. He undertook the task by scaling from the relevant map of the Lake Macquarie Local Environmental Plan which has a scale of 1 to 6336. The surveyor's scaling exercise was performed from a certain angle on the closed road to the beginning of the 6(c) zone. Since the thickness of the boundary lines on the LEP for the 6(b) zone represented 4-5m on the ground he measured from the centre of the lines. He produced a plan of the zoning boundaries which became Ex. 5. This plan showed that the proposed boat shed was within the 6(a) and 6(c) zonings but was just to the west of the 6(b) zone. The applicant called a registered surveyor in private practice, a Mr. Matthew Somers. He also undertook a survey to establish the position of the small 6(b) zone in relation to the boatshed. He relied upon additional source documents to Mr. Kepreotis. For example, he utilised in aid the earlier Northumberland County Planning Scheme Map (1960) which included a Special Uses 5(a) zone for a Pilot boat station. Mr. Somers concluded that the Pilot boat station had been located on Portion 97. He tried to establish the connection between Portion 97 and the proposed development site. The Surveyor also had reference to a Lands Department proposed Deposited Plan for the subject site. Mr. Somers concluded that the subject site was partly in the 6(b) zone. He stated that this conclusion was scaled from the LEP map, (as was that of the Council's surveyor). However, Mr. Somers agreed in cross-examination that his position of the boundary of the 6(b) zone was scaled from the mean of the Northumberland map and the LEP, and he indicated possible error limits on his survey because of the inherent difficulty of the exercise. But under further cross-examination by Mr. Ayling it does not appear that the surveyor took the mean of the 2 maps. Rather, he relied more heavily on the Northumberland map. Additionally, he conceded that he had made an error of 3m in his measurements. Mr. Somers was adamant, however, that this error moved the 6(b) zone further into the boat shed site. It should be pointed out that the possibility of error is heightened by the scale of 1mm = 6m. Clause 7(1) of the subject LEP refers to "the map" and defines it as the series of maps marked "Lake Macquarie Local Environmental Plan 1984" including the subject map. This clause also defines "zone" as meaning land in col.1 of the table to cl.10 and "shown on the map by distinctive colouring or edging or in some distinctive manner as referred to in Column 1 of the Table for the purpose of indicating the restrictions imposed by this plan on the development of land". Col. 1 of the Table is headed "Zone and colour or indication on the map". The Northumberland County Planning Scheme Map (1960) is not referred to in the LEP. In my opinion the relevant map in order to ascertain the position of the zoning boundaries is the LEP Map. There is no basis for ascertaining the zoning boundaries under the LEP by a scaling exercise taken from the Northumberland County Planning Scheme Map which is no longer the current map or instrument but has apparently been repealed. The scaling must be off the LEP Map as did Surveyor Kepreotis and as Surveyor Somers says he did but, as it appears, apparently did not. That the boundaries in the LEP of the 6(b) zone may be in error is beside the point. Mr. Somers' theory as to where the zone ought to be may be correct but it does not help locate the actual position of the zone on the LEP Map. In my view there is no legal basis to ascertain the position of the 6(b) zone by scaling off an earlier repealed planning scheme Map. The exercise must be conducted from the gazetted Map. In the circumstances I must prefer the conclusion of Mr. Kepreotis that the land is in the 6(a) and 6(c) zones and not partly within the 6(b) zone. [For an illustration of the Land and Valuation Court accepting a scaling-off exercise from an Interim Development Control Map in order to ascertain the position of zoning boundary, see Cleaver v. Byron Shire Council ((1975) 31 LGRA 31)]. However, Mr. Kepreotis agreed with Mr. Tamberlin that part of the "curtilege" of the boat shed was probably within the 6(b) zone. The "curtilege" refers to an approximate 2m strip all around the boatshed building. This is shown on the amended plan enclosed by a security fence. However, in granting approval Council deleted the fence and made this clear by a notation on the approved plans and also by a condition which stated that "no fencing or any other security arrangements outside of the building be included in the development". It is correct that the evidence of Mr. Kepreotis indicated that if the so-called curtilege was included the site would be partly, if only slightly, in the 6(b) zone. In my opinion the 2m strip did not form part of the consent granted by Council on 6 June 1988. In these circumstances the applicant has failed to satisfy the Court that any portion of the development is within the 6(b) zone. Is the development a "recreation area" as defined? As I mentioned early in these reasons "recreation areas" are amongst the permissible uses in the 6(a) and 6(c) zones. The LEP defines "recreation area" as relevantly meaning "an area or building used by the Council, or by a body of persons associated together, to provide facilities for the purposes of the physical, cultural or intellectual welfare of the community". Subject to the contention of Mr. Tamberlin that the permitted uses in the 6(a) and (c) zones must be public in nature, the applicant concedes that the Coastguard Association is within the above definition. However, it is the submission of the applicant that the subject development is for the purposes of private and not public recreation and only public recreational uses are permissible in the 6(a) and (c) zones. The uses permitted with consent in the 6(a) and (c) zones are identical and are as follows:- "Agriculture; buildings for the purpose of landscaping or gardening, buildings or uses under the care, control and management of the Council; drainage; marinas; racecourses; recreation areas; refreshment rooms; roads; showgrounds; tourist facilities; utility installations (other than gas holders and generating works)." Mr. Tamberlin submits that we are dealing with Open Space Zones specified for "Public Recreation" and "Local Reservation" respectively and the intentions of the zones are, in zone 6(a) "land owned or controlled by the Council is set aside for both passive and active public recreation", and in zone 6(c) "land is set aside for future local public recreation ". By contradistinction zone 6(b) contains a list of permitted uses which point to private recreation and the intention of the zone is "privately owned land is set aside for private recreation". It follows, in his submission, that the 6(a) and (c) zones are for public recreation uses only. There are a number of difficulties with this submission. Firstly, it is clear that not all of the land in the 6(a) and (c) zones is owned by the Council and special provisions are made in clauses 19 and 25 of the LEP regarding development of land in these zones. Secondly, the zones permit (in Col. 11) development works for the purpose of landscaping and gardening to be carried out without consent. Additionally, if one examines the list of permissible uses with consent under Col. 111 it clearly includes some uses which are potentially likely to be private in their nature. The most obvious of these is agriculture. Can it be seriously contended that Council has no power to consent to a private agricultural use of land in these zones? The same may be said for some of the other permitted uses although it is equally conceivable that these could be public activities. Furthermore, Mr. Tamberlin's submission is at odds with the definition of "recreation area" in the LEP which may include a building used "by a body of persons associated together, to provide facilities for the purposes of the physical or intellectual welfare of the community". The definition does not preclude private bodies, nor confine itself to public ones. In my opinion the stated intentions set out in cl.2(2) are simply that and no more. They are the intentions of the various zones in the plan. The descriptions of the Open Space Zones in cl.10 Col.1 "Public Recreation", "Special Recreation", "Local Reservation" and "Regional Reservation" respectively are mere descriptive labels of the particular Open Space Zones. As Mr. Craig observes s.25(1) of the Environmental Planning and Assessment Act requires that an environmental planning instrument state the aims and objectives etc. of the plan but subsection (2) thereof specifies that such statements shall "not affect the construction or effect of any other provision" of the environmental planning instrument except as provided by subsection (3). The latter provision only calls in aid the aims, objectives etc. of the instrument where a provision is "genuinely capable of different interpretations". However, in my opinion, the proviso in subsection (3) does not apply here. There is no provision in issue which is "genuin ely capable of different interpretations". Further, I accept that the purpose of Col. 1 is to specify the zones. Cl.10 prescribes the circumstances in which development may be carried out without consent by reference to Col. 11 in the Table; the circumstances in which development may be carried out only with consent by reference to Col. 11l; and prohibited development by reference to Col. 1V. I reject the applicant's submission that the zones 6(a) and (c) only permit public recreational activities. It follows, in my opinion, that the development is a permissible one. It is therefore unnecessary to determine whether the use constitutes a "club" as submitted by the respondents. Is the consent invalid because of the misdirection on the zoning? Mr. Tamberlin submits (on the assumption that the land is in 6(a) and 6(c) zones and not 6(b)) that the Aldermen were mislead by the City Planner's report on the zoning. The zoning was crucial to their decision since the Open Space Zones are distinctly different. It follows, so the submission goes, that the Council's judgment must have miscarried and the consent should be declared void. On behalf of the Council Mr. Ayling submits that it matters not that the Aldermen did not understand the nuances of the zoning so long as the use was permissible. He says that what happened can be properly categorised as a mere inconsequential misunderstanding of the zoning. It is submitted that such an error, if that it be, is not vitiating of the decision. What is the significance of the acceptance of the inaccurate advice of the City Planner? On the basis of my finding that the development is permissible within the 6(a) and (c) zones as a "recreation area", the decision to approve would likely be the same. Since the land was said (correctly) to be partly in the 6(a) (Public Recreation) zone, the fact that the balance now appears to be in the 6(c) rather than the 6(b) zone, seems almost immaterial to the decision. Two of the six Aldermen who swore affidavits were cross-examined. One regarded the various open space zones as virtually the same and the other was swayed by his view that the principal factor to weigh was the benefits to the community of having the rescue facility. How can it be said that the zoning error was so material to the decision as to justify intervention by the Court? See Parramatta City Council v. Hale ((1982) 47 LGRA 319 at 335). In the light of the facts now known (i.e., the probable true zoning and the permissibility of the use), as well as the lack of any issue or dispute surrounding the zoning or permissibility at the time of decision, it is my opinion that the misinformation on the zoning was not sufficiently significant as to vitiate the consent, (Minister for Aboriginal Affairs v. Peko-Wallsend ((1985-86) 162 CLR 24 at 40). One must weigh the seriousness of the breach in relation to the totality of factors to be considered by the Council, (Boulton v. Burwood Municipal Council, Land and Environment Court, Unreported 28 July 1988). The failure to seek expert valuation advice The next attack on the consent claims that the Council did not consider or properly consider the detrimental economic effect of the development on the value of the applicant's property and his near neighbours (s.90(1)(d)). In support of this submission the applicant tendered affidavit evidence from a registered valuer, Mr. Eric Prince. His valuations of the applicant's property and of lots 14, 15 and 16 Lambton Parade were admitted over objection. In my opinion the evidence was correctly admitted in accordance with previous decisions of this Court including Jacfin v. Taft Entertainment Co. (Unreported 3 October 1985) and King v. Great Lakes Shire Council ((1986) 58 LGRA 366 at 371) as well as the Federal Court, see Wattie Canneries v. Hayes ((1987) 74 ALR 202 at 216-7) explaining Prasad v. The Minister (65 ALR 549 at 562-3). Mr. Tamberlin submits that, in the light of the material placed before the Council alleging a significant adverse effect on the value of the properties opposite the development, it was incumbent on the Council to seek and obtain some expert advice from a valuer before coming to a decision. Such advice was readily available to the Council but not sought by it. According to the submission the question of the diminution in value of the residential properties was of central importance to the decision. Failure to seek advice lead to invalidity of the consent. The Council submits that an analysis of the material before Council indicates quite clearly that consideration was given to the effect on values of the nearby residential properties. The evidence filed by six Aldermen confirms this situation. One Alderman, (Alderman Hughes), indicated that he applied his mind to the question of value loss, but in the light of his own business and valuation experience accepted that there was some impact but not a substantial one. However, according to the submission of Mr. Ayling, that the Council might have given the issue more or better consideration is irrelevant. Further, the valuation evidence of Mr. Prince is not conceded and his assessments ought not be accepted for a number of reasons. What material relevant to the issue did the Council have before it? Firstly, there were a number of references to the detrimental economic effects on the neighbourhood in the City Planner's report prepared for the Committee meeting on 15 February 1988, (pp.5, 8, 9 and 10 as well as a letter from Ken Hazelton Real Estate alleging a drastic reduction in the value of Mr. Blake's home should the boat shed be erected). Secondly, the Council heard from both Mr. Blake and Mr. Suttie in the public access meeting. Further, the Planner again referred to the objections on diminution of value and the relevance of s.90(1)(d) of the Act in his report prepared for the Committee meeting on 23 May 1988, (pp.50 and 52). This material was again before the Council on 6 June 1988 when it voted to approve the amended proposal. The majority of the Aldermen also had an inspection of the site. Importantly, the Planner never at any stage suggested to the Council that it obtain further advices on the issue of the effect on value of the adjacent properties. The fact that the Council had deferred consideration and required a modified plan which significantly reduced the height of the boat shed and thereby the extent of the effect on the views of the applicant and his neighbours must also be taken into account. Additionally, many of the conditions imposed by Council are referable to an attempt to mitigate the impact of the proposal on the environment, e.g., Conditions 5, 6, 10, 11 and 12. These steps confirm an appreciation by the Council of the issue and an attempt to minimise any diminution. Mr. Prince's valuation concluded that the boat shed would create a diminution in value of the applicant's property of $70,000 or 20%; vacant lot 16 (Mr. Allogia $25,000 or 12-1/2%); lot 15 (Mrs. Guidoux $50,000 or 10%) and lot 14 (Mr. Ryan $15,000 or 5%). However, it seems to me that these figures may be open to doubt when one takes account of the fact that the valuations were conducted almost one year after the granting of consent. Mr. Prince was also given some incorrect information as to levels (and thereby the extent of the loss of views) and believed the finish of the building to be concrete blocks rather than "non-reflective, dark toned material.... sympathetic to the environment" (Condition 10). (Mr. Prince had not sighted the consent). Further, the valuer appears to have conducted his valuation on somewhat suspect valuation principles without any real regard to comparable sales or analysis other than non-specific sales information available in his office. All these factors make Mr. Prince's valuation of somewhat limited value to the Court. On the evidence it is quite apparent that the Council did take properly into account the issue of diminution in value of the neighbouring properties. In my opinion they were not bound to inquire further and obtain valuation advice. The weight to be given to the various considerations is generally a matter for the Council, (see Peko Wallsend p.41). In this respect it is noted that no allegation is made of "manifest unreasonableness", nor in my view could it be made. In my opinion this aspect of the challenge to the consent must fail. The failure to seek survey evidence in relation to the impact on the environment The applicant also alleges that the Council failed to consider or adequately consider the impact of the development on the environment. In particular, it is submitted by Mr. Tamberlin that the Council should have asked its surveyor to provide levels so that the impact of the boat shed could have been more accurately assessed before making its decision. It is submitted that without such material, or a montage, the on-site inspection was of little value to determine the likely impact. Because of the objections placed before the Council by the residents it is said that the Council should have obtained further expert advice of the nature suggested. When one examines the material on the impact of the development on the nearby environment which was before the Council at the points of time it considered the application, including the reports of the City Planner, the objections, the public access addresses and the benefit of an inspection (including a mock-up of levels by the residents), I cannot be satisfied that the Council failed to consider or adequately consider this issue. That its consideration may have been better if it had levels from its surveyor is beside the point. The applicant has been unsuccessful in convincing me that the Council failed to properly assess the application under s.90(1)(b) or indeed under any of the relevant heads of consideration under that section. Discretion It follows, in my opinion, that the applicant's case must fail. However, should I be wrong in any of the above conclusions it is my firm view that a declaration of invalidity of the consent should not be made in the exercise of the Court's discretion. Little or nothing would be achieved by the Council having to consider the matter again bearing in mind my findings on the applicable zoning and permissibility. The Council gave the matter the fullest of consideration and the granting of relief would, in my view, "work such an injustice as to be disproportionate to the ends secured by enforcement of the legislation", (see Kirby P. in Fatsel Pty. Ltd. v. ACR Trading ((1987) 64 LGRA 177 at 192). Even if the development is located partly in the 6(b) zone it is clear that the building would only have to be moved a very short distance to be out of the zone. In my judgment the applicant is not entitled to the orders claimed and the application should be dismissed. The exhibits may be returned. All questions of costs are reserved. 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