Rose Bay Marina Pty Ltd v Minister for Urban Affairs and Planning [2002] NSWLEC 123

Reported Decision : 122 LGERA 255

Land and Environment Court of New South Wales

CITATION : Rose Bay Marina Pty Ltd v Minister for Urban Affairs and Planning [2002] NSWLEC 123 APPLICANT Rose Bay Marina Pty Ltd PARTIES : RESPONDENT Minister for Urban Affairs and Planning FILE NUMBER(S) : 40191 of 2001 CORAM: Pearlman J KEY ISSUES: Judicial Review :- development application - lack of owner's consent - whether development application complete and effective - whether consent authority obliged to process development application Existing Use Rights:- lands to which rights attach - purpose - lawfulness County of Cumberland Planning Scheme Ordinance 1951 Environmental Planning and Assessment Act 1979 s 4, s 76A(9), s 78A(1), s 79, s 79C(1), s 80, pt 4 div 10 Environmental Planning and Assessment Regulation 2000 cl 49(1), cl 50(1), pt 5, sch 3 Land and Environment Court Act 1979 s 20(2), s 20(3) LEGISLATION CITED: Local Government Act 1919 s 15, pt XI, pt XIIA div 7 Management of Waters and Waterside Lands Regulations NSW cl 4(1) Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 Ordinance 105 Sydney Regional Environmental Plan No 23 - Sydney and Middle Harbours cl 5 Woollahra Planning Scheme Ordinance 1972 Botany Bay City Council v Remath Investments No 6 Pty Ltd (2000) 111 LGERA 446; Donnelly and Anor v Capricornia Prospecting Pty Ltd and Ors [2001] NSWLEC 225; Maule v Liporoni and Anor [2002] NSWLEC 25; CASES CITED: North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd and Ors (1989) 67 LGRA 344; Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305; Sterling Nicholas Duty Free Pty Ltd v The Commonwealth [1971] 1 NSWLR 353; Swift Australian Co (Pty) Ltd v South British Insurance Co Ltd (1970) VR 368 DATES OF HEARING: 05/02/2002; 06/02/2002; 21/02/2002; 28/03/2002; written submissions 19/04/2002 DATE OF JUDGMENT: 07/26/2002

APPLICANT Mr M G Craig QC with Mr J E Robson (Barrister) SOLICITORS Cutler Hughes & Harris LEGAL REPRESENTATIVES: RESPONDENT Mr B J Preston SC with Mr M L Wright (Barrister) SOLICITORS PlanningNSW

JUDGMENT:

IN THE LAND AND 40191 of 2001 ENVIRONMENT COURT Pearlman J OF NEW SOUTH WALES 26 July 2002 ROSE BAY MARINA PTY LTD Applicant v MINISTER FOR URBAN AFFAIRS AND PLANNING Respondent

JUDGMENT

Introduction

1. These proceedings concern the Rose Bay Marina, situated at 594 New South Head Road, Rose Bay.

2. Three issues are raised for determination:

(1) Whether the respondent, the Minister for Urban Affairs and Planning ("the Minister") is bound to consider a development application lodged with him by the applicant, Rose Bay Marina Pty Ltd ("RBM") in the absence of the consent of the owner of the land; (2) Whether RBM enjoys the benefit of existing use rights in relation to the area occupied by the marina; and

(3) Whether the proposed development is development for which consent may lawfully be given under relevant statutory provisions.

Background

3. The Rose Bay Marina comprises a commercial marina and associated facilities located on land and water on the south-western shore of Rose Bay. The marina currently comprises 29 fixed berths and 72 swing moorings. The associated facilities include a restaurant ("the Pier Seafood Restaurant"), a shop, a kiosk, an office, fuel storage, sewage pump out facility, a timber jetty, a tender service, a boat detailing service and maintenance and security services.

4. RBM occupies the area upon which the marina and associated facilities are conducted ("the site") pursuant to registered lease 7085593M (which relates to lot 1 in deposited plan 1014928) and pursuant to commercial mooring licence No CL 1011 granted by the Waterways Authority.

5. Under s 4(1) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"), the term "land" includes, amongst other things, a body of water or a bay or an arm of the sea. For present purposes, therefore, the site is "land" to which the EP&A Act applies.

6. The site is also included in land to which Sydney Regional Environmental Plan No 23 – Sydney and Middle Harbours ("SREP 23") applies. Under SREP 23, the site falls within Zone No W1 – General Waterways, pursuant to which development for the purpose of "large marinas" is prohibited. In cl 5(1) of SREP 23, the term "large marinas" is defined as follows: "large marina" means:

(a) a boat storage facility; or

(b) some other permanent boat storage structure,

located on the waterway which contains 30 or more berths (or other storage facilities) and associated support facilities and which may include shops, restaurants, offices and a manager's residence on an adjoining area of land or the waterway.

7. On 10 October 2001, RBM lodged with the Department of Urban Affairs and Planning ("the Department") a number of documents which it described as a development application. They comprised a letter, a development application form, plans, an environmental impact statement ("EIS") and various cheques ("the documentation"). The documentation sought consent for a reconfiguration of the moorings, involving converting the existing fixed berths and swing moorings into 100 floating pontoon berths. The proposal involved removal of the existing fixed wooden pier and its replacement with a floating pontoon, comprising two parallel arms extending from the existing deck of the marina building.

8. It is common ground that the Minister declared on 10 April 2001 that certain marina development is State significant development, that the proposed development falls within the development so declared, and that, pursuant to s 76A(9) of the EP&A Act, the Minister is the consent authority.

9. Three other matters are not in issue. First, the proposed development falls within the description of "large marina" under SREP 23 and therefore it is prima facie prohibited. Secondly, the proposed development falls within the description of "marinas" within sch 3 of the Environmental Planning and Assessment Regulation 2000 ("the Regulation"), and hence is designated development for the purpose of the EP&A Act. Thirdly, the Waterways Authority is the "owner" of the site for the purpose of the EP&A Act.

10. However one of the critical facts is that the documentation lodged with the Minister by RBM was not accompanied by the consent of the Waterways Authority as the owner of the site. In a letter dated 27 September 2001 the Waterways Authority notified RBM that it would not furnish its consent because either the proposed use was prohibited, or, if RBM enjoyed existing use rights, the proposal sought consent for a large structure which was contrary to the assessment criteria contained in its Land Owners Consent Manual. On 11 October 2001, the Department returned the documentation to RBM's planning consultant stating that, as the Waterways Authority's consent was not furnished, the development application was ineffective and incomplete and accordingly not properly made.

11. Against that background, I turn to consider each issue.

The "development application" issue

12. In respect of this issue, RBM seeks the following declarations:

(1) A declaration that the documentation constituted the lodgement with the Minister, as consent authority, of a development application under the EP&A Act for consent to carry out the proposed development; and

(2) A declaration that the Minister was not lawfully entitled to decline to accept and process that development application.

13. The statutory context is as follows. Under s 4(1) of the EP&A Act, a "development application" is defined as "… an application for consent under Part 4 to carry out development …". Part 4 deals with development assessment. Relevantly, for the purpose of the present proceedings, s 76B provides that development that is prohibited under an environmental planning instrument must not be carried out. However, div 10 of pt 4 provides for existing uses, and operates, in conjunction with the Regulation, to preserve the continuation of existing uses and to permit them to be enlarged, extended, altered or rebuilt with development consent (I shall return to consider div 10 in more detail in connection with the second issue). RBM made its application to the Minister relying upon these provisions.

14. Section 78A(1) provides as follows: 78A(1) A person may, subject to the regulations, apply to a consent authority for consent to carry out development.

15. Clause 49(1) of the Regulation stipulates who can make a development application in the following terms: 49(1) A development application may be made: (a) by the owner of the land to which the development application relates, or (b) by any other person, with the consent in writing of the owner of that land.

16. Clause 50(1) of the Regulation sets out requirements for the contents of a development application, for the form of the development application, for its fees, and for its delivery.

17. Section 79 of the EP&A Act relevantly provides that, "… [a]s soon as practicable after a development application is made for consent to carry out designated development …", the consent authority must provide for public participation in the assessment of the proposed development by placing the development application and its accompanying information on public exhibition, and must give notice of the development application to adjoining occupiers and in a local newspaper.

18. Evaluation of the proposed development is provided for in s 79C(1). It sets out the matters which the consent authority is to take into consideration "[i]n determining a development application".

19. Section 80 empowers the consent authority to determine "a development application" by granting consent either unconditionally or subject to conditions, or by refusing consent. Section 80A provides for the circumstances of and the manner in which conditions may be imposed by a consent authority.

20. In the light of this statutory context, the Minister claims that, in the absence of a written consent of the Waterways Authority, no development application has been "made" by RBM. He claims that, as a consequence, he is not required to carry out the public exhibition and notice requirements of s 79, or to undertake the considerations provided for in s 79C. Furthermore, he claims that there is no development application that he can determine pursuant to s 80. Therefore, he was obliged to reject the documentation lodged by RBM, and the declarations that it seeks should not be made.

21. Both parties referred to Botany Bay City Council v Remath Investments No 6 Pty Ltd (2000) 111 LGERA 446. That case, however, concerned a different question. There, two development applications had been lodged with the consent authority. They were not, however, accompanied by an environmental impact statement that satisfied the requirements stipulated in the EP&A Act as it was then framed. The question was whether, for the purpose of a transitional provision, the development applications had been "made" but not determined before the coming into force of the amended EP&A Act. The answer to that question depended upon s 77(3)(b) of the EP&A Act as it then stood, which provided that a development application shall "be made in the prescribed form and manner". It was held that the development application had not been "made" in the prescribed manner.

22. Although that case turns on a different question to that posed here, the case lends weight to the proposition that a development application that does not substantially comply with the statutory requirements is incomplete and ineffective, and it is only when there is substantial compliance that the development application becomes complete and effective – see the judgment of Fitzgerald JA at par 47.

23. In this case, the documentation constituted a development application that was incomplete and ineffective. It was made by a person who was not the owner of the land to which it related, and it was not accompanied by the written consent of that owner. Hence it had not been "made" within the requirements of cl 49(1) of the Regulation. The consequence was that the Minister was not obliged to take any step under the EP&A Act. All the relevant steps in the process leading to determination, such as public exhibition and notice as prescribed by s 79, as well as consideration of relevant matters as prescribed by s 79C, contemplate a complete and effective development application, and the ultimate determination under s 80 is predicated on there being a complete and effective development application.

24. There is a long line of authority in this Court for the proposition that the lack of owner's consent can be rectified at any time prior to the determination of the development application, and that a consent authority can consider the development application in the meantime. The cases are listed in pars 5 and 6 of the judgment of Stein JA in Botany v Remath, and his Honour noted, in par 7, that it was not suggested that they were incorrectly decided. To that list of cases I would add Donnelly and Anor v Capricornia Prospecting Pty Ltd and Ors [2001] NSWLEC 225 (Bignold J, unreported, at pars 84 -99) and Maule v Liporoni and Anor [2002] NSWLEC 25 (Lloyd J, unreported, at pars 7 - 11). In accordance with these authorities, the Minister was not bound to reject the documentation lodged by RBM. If he had been under the impression that the owner's consent was likely to be forthcoming prior to his determination of the development application, then he had the option of retaining the documentation, treating it as a development application that would ultimately be complete and considering it. But he was, as I have said, not bound to take those steps, and in the light of the letter from the Waterways Authority to which I have referred in par 10, he was entitled to assume that the owner's consent was not likely to be furnished. He was justified in those circumstances in rejecting the documentation.

25. For those reasons, RBM is not entitled to the two declarations it seeks relating to this issue.

Existing use rights

The jurisdiction of the Court

26. RBM seeks a declaration of its right in relation to existing use rights conferred upon it by the EP&A Act. I would have no hesitation in holding that the Court was empowered to make such a declaration if the relevant facts are established. It is a declaration of a right in relation to the EP&A Act under s 20(2) of the Land and Environment Court Act 1979 which relevantly provides as follows: 20(2) The Court has the same civil jurisdiction as the Supreme Court would, but for section 71, have to hear and dispose of proceedings - (a) to enforce any right, obligation or duty conferred or imposed by a planning or environmental law…;

(c) to make declarations of right in relation to any such right, obligation or duty or the exercise of any such function; A "planning or environmental law" includes the EP&A Act (s 20(3)(a)).

27. However, in view of the fact that no complete or effective development application has been made, the question is whether the issue of existing use rights in relation to the site is hypothetical and cannot be entertained by the Court.

28. This question was not addressed at any length by counsel for either party at the hearing. Mr Craig QC, appearing for RBM, submitted that the Court could and should entertain the existing use rights issue whether or not the development application was complete and effective. Mr Preston SC, appearing for the Minister, submitted that a finding that there was no complete and effective development application should be an end to the matter.

29. The relevant facts are these. RBM made clear to the Minister (and to the Waterways Authority) its recognition of the fact that the proposed development was prohibited under SREP 23, and that it relied upon the benefit of existing use rights to support its application. It stated as much in the EIS at p 40. It also seems to be the case that the Department was of the view that RBM did not have existing use rights in relation to the site. The Department's view to that effect was noted in two letters from the solicitors for RBM to the Waterways Authority dated respectively 12 June 2001 and 28 August 2001, and in its letter dated 11 October 2001 rejecting the documentation, the Department advised RBM's solicitors that it "still reserves its right to contend that your client's claim to existing use rights has not been established".

30. As I have noted in par 10, the Waterways Authority has stated that it does not intend to furnish its consent as owner. There is therefore no current likelihood that the documentation will ultimately become a complete and effective development application. However, in their letter to the Waterways Authority dated 28 August 2001, the solicitors for RBM foreshadowed legal proceedings designed to procure an order obliging the Waterways Authority to furnish its consent, and counsel advised the Court from the bar table that such proceedings have been formally commenced in the Supreme Court. In these circumstances, there is at least a chance that RBM might be successful in its claim in the Supreme Court with the consequence that consent might ultimately be forthcoming.

31. A court will not give advisory opinions on a hypothetical state of facts, nor give hypothetical decisions which depend upon facts to be established in the future: see Swift Australian Co (Pty) Ltd v South British Insurance Co Ltd (1970) VR 368 and the cases there cited. But where there is a genuine dispute between the parties, and that dispute arises, not in hypothetical circumstances, but in a real situation, a court will be prepared to make a declaration as to the parties' rights: Sterling Nicholas Duty Free Pty Ltd v The Commonwealth [1971] 1 NSWLR 353.

32. In my opinion, the existing use rights issue is a real issue and the subject of a genuine dispute between the parties. It is not hypothetical. RBM made an application for development consent for proposed development, the permissibility of which depended upon existing use rights being established. The establishment of existing use rights was fundamental to RBM being lawfully able to carry out the development it proposed. The Minister made it plain that it wished to contend that RBM did not have the benefit of existing use rights. Furthermore, RBM is taking action to endeavour to obtain owner's consent. It is therefore actively and currently pursuing such rights as it may have to enable it to carry out the proposed development. The fact that the development application as lodged is incomplete and ineffective by reason of the lack of owner's consent does not resolve the existing use rights dispute nor derogate from the fact that it is a real issue between the parties. I consider that, in all those circumstances, the Court is empowered to entertain the existing use rights issue, adjudicate upon it, and, if the facts are established, make a declaration as to RBM's rights.

Background to the issue

33. Division 10 of pt 4 of the EP&A Act provides a regime for the preservation of existing uses. An "existing use" is relevantly defined in s 106 (a) as follows: 106 In this Division, existing use means (a) the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for Division 4A of Part 3 or Division 4 of this Part, have the effect of prohibiting that use;

34. Section 107 relevantly provides that nothing in an environmental planning instrument prevents the continuance of an existing use. Furthermore, in accordance with the Regulation, an existing use may be, in each case with development consent, enlarged, expanded or intensified (cl 42), altered or extended (cl 43), rebuilt (cl 44) or changed to another use (cl 45).

35. Conformably with s 106, the question of whether RBM has the benefit of existing use rights depends upon three lines of inquiry, namely:

(1) What "land" was the subject of the claimed existing use at the date immediately before the coming into force of the instrument prohibiting that use ("the relevant date")?

(2) What was the purpose for which the land was being used at the relevant date? (3) Was that purpose lawful?

36. In the particular circumstances of this case, there are a number of preliminary matters to note before embarking upon those inquiries. First, SREP 23 prohibits the use of the site for the purpose of a "large marina". It does not prohibit the use of the site for the purpose of a "marina" – that is a use that is permissible with consent. Accordingly, the line of inquiry must be directed to a use that falls within the definition of "large marina", although that definition did not come into force as a planning term until the promulgation of SREP 23. In other words, the line of inquiry must be directed to the use of the site for the purpose of a large marina as that term is described in SREP 23.

37. Secondly, there is evidence (which I later describe) that, at the relevant date, there were 29 fixed berths and 72 swing moorings on the site. The question that arises is whether the swing moorings can be taken into account in determining whether the use of the site at the relevant date was a "large marina" within the SREP definition. There was no direct evidence as to the meaning of "swing mooring". I take it that the term means a mooring, comprising a buoy attached to the seabed by an anchor, used to secure a vessel, and around which the vessel swings, depending upon wind, current and tide. So much is derived from three documents – first, the definition of "mooring apparatus" in cl 4(1) of the Management of Waters and Waterside Lands Regulations – NSW as a mooring used to secure a floating object or apparatus in navigable waters; secondly, the definition of "single mooring" in cl 5(1) of SREP 23 as an apparatus located on the waterway and used for restraining one vessel, and thirdly, from the plan prepared by International Marina Consultants number 1077 – SWING – 3 ("plan 1077"), which is expressed to describe the "mooring swing diameter with boat".

38. Bearing the above description in mind, I turn to the definition of "large marina" in SREP 23 (which I have set out in full in par 6). It includes in its meaning "a boat storage facility" and "some other permanent boat storage structure". None of the components of those terms are specifically defined. However, the New Shorter Oxford English Dictionary defines "storage" as being, amongst other things, "… [t]he action of storing or laying up a thing or things in reserve" and I take it accordingly that "boat storage facility" means a facility for storing or laying up boats until their use from time to time. It seems to me that, in general parlance, a swing mooring is as much a boat storage facility as a fixed berth. When a boat is attached to a swing mooring, it is laid up awaiting its next use. I conclude therefore that the swing moorings may be taken into account for the purpose of the definition of "large marina" in SREP 23.

39. The third preliminary matter to note is the relevant date – that is, the precise date immediately before the coming into force of an environmental planning instrument under which the use of the site for the purpose of a large marina was prohibited. SREP 23 prohibits such a use in relation to the whole of the site. It relevantly applies to the whole of Sydney Harbour, and overrides all former planning instruments (cl 4). It came into force on 13 July 1990, and I will proceed on the basis that the date immediately prior to that date is "the relevant date". However, at least part of the site was regulated under planning instruments in force before SREP 23, because at least part of the site fell within the boundary of the Woollahra local government area. There was no precise evidence as to which part of the site was within such boundary. Mr Preston submitted that the former mean high water mark depicted on lot 1 in DP 1014928 passed through the south western corner of the brick building erected on the site, and, furthermore, other parts of the site were deemed to be within the Woollahra local government area by dint of the operation of s 15 of the Local Government Act 1919 ("the 1919 Act") which had the effect of extending the local government boundary beyond the shore in certain circumstances. Mr Craig accepted Mr Preston's submission in this respect, and I am content to proceed on the basis that some minor part of the site fell at various times within former planning instruments.

The land

40. As I have noted in par 4, RBM occupies lot 1 in DP 1014928 pursuant to registered lease no 7085593M. The marina structures, including the building, ramps, jetties and 29 fixed berths, are situated upon lot 1 over an area of 3607 m2. RBM also occupies 72 swing moorings pursuant to commercial mooring licence No CL 1011.

41. RBM proposes to develop the whole of the site, and it claims that the area of the site (to which it claims that the benefit of existing use rights attaches) is, first, the area of lot 1, secondly, the area occupied by each of the 72 swing moorings, and, thirdly, the 360 degree swept path traversed by boats which are moored to the swing moorings. This area is outlined in red on a copy of plan 1077-01 prepared by International Marina Consultants ("plan 1077-01") and attached to the amended class 4 application. The location of the 72 swing moorings is depicted upon a plan of the Waterways Authority entitled Rose Bay East (AN), and the total area occupied by the moorings and the swept path ("the moorings area") is approximately 3.67 ha and is depicted upon plan 1077.

42. Mr Craig submitted that the Court could draw an inference that the whole of the surface of the water within the site, that is, within lot 1 and within the moorings area, was used for the relevant purpose at the relevant date. That inference may be drawn, in his submission, from the position of the buildings over the water, the position of the swing moorings, and the use of the waterway in between for boat movements, tender services and the swept path. The inference is supported by the provisions of the Management of Waters and Waterside Lands Regulations, which demonstrate that the mooring licence is designed to permit, not only occupation of the moorings, but also their use by vessels of some kind.

43. Mr Preston conceded that, if there was an existing use at the relevant date, it related to the area within lot 1. But he contended that it has not been established that the moorings area was so used at the relevant date because, firstly, there is no evidence that each swing mooring was occupied on the relevant date, secondly, there is merely a hypothetical depiction of the swept path in the absence of the actual path (since the actual path depends upon the size and capacity of each moored boat), and, thirdly, that the moorings area was and is a public waterway and not in the exclusive occupation of the RBM or its predecessors.

44. I do not accept Mr Preston's submission. A parcel of land could properly be regarded as being used for the purpose of a car park even if, at any given date, cars did not actually occupy every single car space. The 72 swing moorings were in position at the relevant date, and, according to the evidence of Mr R G Westbrook to which I refer in par 47, they were being used on a regular basis for the mooring of boats from about 1971 onwards. Furthermore, the fact that members of the public also used the waterway at the relevant date does not derogate from the fact that it was at the same time used by RBM or its predecessors for the movement of boats and the provision of tender facilities.

45. Accordingly, I find that, if there was an existing use at the relevant date, it was a use of land comprising the whole of the site – that is, the area within lot 1 and within the moorings area as outlined in red on plan 1077-01.

The history

46. In order to pursue the remaining lines inquiry which I have noted in par 35, it is necessary to examine in some detail the history of the use of the site and the planning controls which from time to time applied to the site.

47. Considerable documentary evidence was furnished. It comprised copies of relevant planning controls, building applications, building approvals and relevant plans. In addition, Mr Westbrook, who had connections with and worked on the site for over 30 years, gave affidavit and oral evidence, and his evidence was unchallenged. From that material, I make the following findings in chronological order: 1924 Woollahra Council gave building approval for alterations and additions to the Rose Bay Boatshed. Existing on the site was a boatshed, a pier, a refreshment room, a shop and living quarters to which electricity, water and gas was supplied. These findings are derived from the building specifications bearing the stamp of approval of Woollahra Council and an accompanying blueprint plan.

There was no planning regulation in New South Wales before 1945. Building was controlled under Pt XI of the 1919 Act and Ordinance 70. 1945–1946 In 1945 regulation of town planning commenced by the insertion of Pt XIIA into the 1919 Act. This provided for the preparation of planning schemes in respect to local government areas. Pending the preparation of relevant schemes, town planning was regulated by interim development under Division 7 of Pt XIIA and Ordinance 105, both of which operated, so far as concerned land in the Woollahra local government area, from July 1946. Relevantly, under Ordinance 105, alterations to existing buildings (which included the building erected prior to 1924 upon the site) were permissible without consent; all other development required the permission of Woollahra Council as the interim development authority. No development was prohibited. 1951 On 27 June 1951, the County of Cumberland Planning Scheme Ordinance ("the CCPSO") came into effect. Part II of that instrument (which was brought into force by the Local Government (Amendment) Act 1951), controlled the development of the land component of the site. According to the scheme map, part of that land component was reserved as "parks and recreation areas", and part was reserved for "new county roads and widening of existing county roads". Division 3 referred to "built up land", which was land other than vacant land. Built up land could not be used without council consent for any purpose other than that for which it was used prior to the coming into force of the CCPSO. In regard to the land reserved for new county roads, no building could be erected without council consent. No use was prohibited. 1958 According to the evidence of Mr Westbrook, there was at least a shop, a wharf and a marina shed on the site.

1961 Application was made both to Woollahra Council and the Maritime Services Board (MSB) for extensions to the restaurant, then known as 'Doyles'. From these applications, from the building approval for the extensions, from accompanying plan dated 12 April 1961 and from the correspondence, it can be deduced that there existed on the site a wharf, a boatshed, a shop, a restaurant and a deck. The activities on the site included moorings, slipping, painting and repairs, hiring of launches and skiffs, sale of fishing tackle and bait.

1962 Consent was provided by the MSB for the use of part of the site for the display and sale of boats and dinghies.

1963 Existing on the site was a boatshed, a shop, a milk bar, an office, a restaurant, sea walls, slipways, ramps, jetties and a petrol pump. Sometime during 1963, a jetty was demolished. Building approval was granted for the reconstruction of the slipways. Building approval was also granted for alterations to the restaurant. These findings are derived from the building applications, building approvals and accompanying plans, and correspondence between RBM and Woollahra Council and the MSB. 1964 Still existing on the site was a boatshed, a restaurant, a shop, an office, ramps, a milk bar, a residential flat, jetties and slipways. Building approval was obtained from Woollahra Council for extensions to the restaurant.

Building approval was obtained from Woollahra Council for a "marina and catwalk" comprising amongst other things, a proposed jetty and breakwater extending from the existing jetty.

MSB granted approval for the mooring of 5 extra boats and for the construction of a number of additional piles. The plan accompanying the approval showed in sketch form the provision for 20 berths alongside the new jetty. 1965 The activities at the site were expressly stated in the owner's correspondence to include "marina berths".

1966 Existing on the site was a boatshed, a restaurant, residential flat, milk bar, boat storage, an office, a walkway, ramps and slipways.

1967 Still existing on the site was a boatshed, a restaurant, slipways, ramps, an office, boat storage, residential flat, milk bar, jetty and piles. 1969 Mr Westbrook commenced to work on the site at which time boats were berthed at fixed berths and at swing moorings. Mr Westbrook's evidence establishes that the activities on the site included the hire of boats, the sale of fishing gear and bait, moorings, tender service, fixed berths and swing moorings.

1970 Building approval was granted for alterations and additions to the boatshed, which included the residential flat, storeroom, sundeck and other decking. The alterations and additions that were approved were based on plans initially prepared and approved in 1967 but re-approved in 1970.

1971 Mr Westbrook commenced employment as "marina supervisor". There were 25 fixed berths and 72 swing moorings. The activities carried out at the site included boat hire, boat maintenance, sale of fishing gear and bait, slipway services, sale of fuel. There was a residential flat, a shop, a milk bar and a restaurant, 'Doyles' at the site.

1972 On 15 December 1972 the Woollahra Planning Scheme Ordinance ("the Woollahra PSO") came into force. According to the scheme map, it appears that some part of the land component of the site on the south western side was zoned 6(a) Open Space - Recreation Existing. The remainder was subject to a reservation for existing county roads. According to the zoning table, the following controls applied: (a) in respect of so much of the site as fell within the 6(a) zone, use of the land for the purpose of the marina was prohibited.

(b) in respect of any part of the site below the high water mark which was within the local government area of Woollahra, council consent was required for a building to be erected or a work carried out (cl 56). Part 4 preserved the continuance of an existing use of land, and included the right to alter or extend existing buildings or works with council consent, or to rebuild existing buildings with council consent. 1973 The alterations and additions to the boatshed that were based on plans prepared and approved in 1967 and re-approved in 1970, were again approved.

1974 According to the evidence of Mr Westbrook, most of the old marina shed was demolished and new construction was carried out which involved new decking, new workshops, offices and chandlery. In addition, a small slipway at the back of the building was constructed. I find this to be the work that was approved in 1967, again in 1970 and again in 1973.

1980 On 26 September 1980, the existing use provisions of the Woollahra PSO were repealed (pursuant to an order made under cl 2(2) of sch 3 to the Miscellaneous Acts (Planning) Repeal and Amendment Act 1979) and replaced in effect by div 10 of pt 4 of the EP&A Act. Building approval was granted for alterations to the milk bar and its conversion to a sandwich shop. 1983 Approval was sought for extensions to the restaurant, now 'Dory's'. Existing on the site was a boatshed, a restaurant, residential flat, a shop, an office, a sandwich shop, slipways, ramps, and jetties. MSB approval was granted for four additional fixed berths, subject to the relinquishment of four swing moorings.

Woollahra Council drew attention to unauthorised iron rails adjacent to the slipway, and asked the MSB to require their removal. According to an endorsement on its letter, a survey inspector noted that the iron rails had been removed two years previously. 1984 MSB advised that it had no objection to a reconfiguration of the jetties of the marina into a fork shaped arrangement. MSB granted approval in principle to the extension to the restaurant. 1987 Marina sold to Ficeda Pty Ltd ("Yamaha"). 13/7/1990 SREP 23 came into force. The use of the site for the purposes of a large marina was prohibited. Mr Westbrook's evidence establishes that, at the relevant date, there were 29 fixed berths and 72 swing moorings existing on the site as well as a restaurant, an office, a residential flat and a milk bar. The activities on the site included the repair of boats, the sale of fuel, the sale of boats, tender services and slipway services.

48. I turn now to the remaining lines of inquiry, having regard to the above findings. The approach that the Court should take in this regard is not to pursue meticulous details of activities, transactions and processes on the site, but to construe "the use" broadly in terms of an appropriate genus which best describes the activities on the site: - see Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 at 310-311; and North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd and Ors (1989) 67 LGRA 344 at 353. Furthermore, whilst minds might differ and there might be gaps in the history of the site, the Court is entitled to make findings of fact on the balance of probabilities in order to make the necessary determination for the planning purpose which is required.

Use for a purpose

49. I am satisfied on the balance of probabilities, and I so find, that the site was being used for the purpose of a large marina at the relevant date. At that date the following were constructed upon the site - jetties, 29 fixed berths, 72 swing moorings, slipways, ramps, decks, boatshed, restaurant and milk bar. The site was being used for activities which involved those structures – that is, including mooring and berthing of boats, tender services and slipway services, sale of fishing tackle, bait, fuel and boats, and provision of refreshments. Taken as a whole, the use of the site at the relevant date fell within the description of a large marina in SREP 23.

50. Mr Preston took the Court through each of the documents comprising the documentary evidence in an endeavour to show that there were gaps in the history, that it was not established that buildings marked on plan as "existing" were in fact existing, and that it was not established that approved works were actually carried out.

51. I reject that submission for three reasons. First, works that were shown as existing continued to be shown as "existing" on subsequent plans, and works that were the subject of approval were shown on subsequent plans as "existing". The inescapable inference is that "existing" works in fact existed, and proposed works in fact had been carried out. By way of example, the 1924 blueprint, the 1961 approved plan and the 1967 plan can be compared and they support the inference. They do not do so with precision, but they indicate, on the balance of probabilities, that what was proposed in 1924 was carried out by 1961, and that what was proposed in 1961 was carried out by 1967. Secondly, the evidence of Mr Westbrook, which starts with his observations in 1958, demonstrates generally what existed from time to time and it corroborates a finding that there were existing structures altered and extended over the whole period up to the relevant date generally in conformity with, or at least following upon, the various approvals. Thirdly, both Woollahra Council and the MSB granted approval to numerous alterations and additions from time to time over the whole period and an inference can be drawn that there were from time to time existing buildings which were to be so altered or extended or added to.

52. Mr Preston also submitted that the most that could be established at the relevant date was that parts of the site were used for independent purposes unrelated to the use of the site for the purpose of a marina. Those independent uses comprised a restaurant, a residential flat, a shop, a public waterway, and a marina (but not a large marina), and all these uses are permissible with consent under SREP 23. It is correct to say that these uses are so permissible, but I do not accept that they are, at least in relation to the purpose for which the site has been used, independent and unrelated uses. The submission, in my opinion, ignores the description of large marina in SREP 23. That description encompasses, not only the boat storage facilities, but also "associated support facilities" stipulated to include "shops, restaurants, offices and a manager's residence". The fact that the uses that Mr Preston listed may be carried out by different proprietors, or may be availed of by persons who are not necessarily using other components of the marina, does not derogate from a conclusion that they are facilities which are associated with and support the boat storage facilities and structures located on the waterway. The conclusion remains, in my opinion, that the site was used at the relevant date for the purpose of a large marina.

Lawfulness

53. I am satisfied, and I so find, that the use of the site at the relevant date was for a lawful purpose. Until 1972 no development on any part of the site was prohibited; extensions and alterations to existing buildings did not require the consent of the council; and any other development was permissible with council consent. This conclusion follows from the absence of planning controls before 1946, and the provisions of Ordinance 105 and the CCPSO thereafter.

54. From 1972 (when the Woollahra PSO came into force), use of part of the site for the purpose of a marina was prohibited. However, as at that date, the whole of the site, including that part (at present not precisely defined) which fell within the Woollahra local government area, was used for the purpose of a marina. That use was preserved and could continue.

55. Furthermore, from 1924 through to 1990, building approvals and approvals from the MSB were granted from time to time in such a way that all parts of the marina use were subject to regulatory scrutiny. It is a reasonable inference that what was being carried on from time to time was regarded by the regulators as lawful. From the fact that Woollahra Council complained about the unauthorised iron rails in 1983, it is reasonable to infer that, had the council had a concern about illegality, it would have said so when building applications were lodged from time to time. That, combined with the documentary and oral evidence, supports a finding that the site was lawfully being used for the purpose of a large marina at the relevant date.

56. For these reasons, RBM is entitled to a declaration that it has the benefit of existing use rights in relation to the site.

The application of pt 5 of the Regulation

57. RBM seeks a declaration that development of the site as proposed in the development application is development for which development consent may lawfully be given under the EP&A Act and pt 5 of the Regulation. That declaration arises in this context. Section 108 of the EP&A Act stipulates that the Regulation may make provision for or with respect to an existing use, and, in particular, for or in respect to (a) the carrying out of alterations or extension to or the rebuilding of a building or work being used for an existing use (b) the change of an existing use to another use, and (c) the enlargement or expansion or intensification of an existing use. Part 5 of the Regulation contains such provisions (which are known as "the incorporated provisions") and they permit, with development consent, the carrying out of development that falls within the stipulated matters. As I noted in par 13, RBM relies upon the incorporated provisions for the development that it proposes.

58. However, I decline to make the declaration as sought. This is because, in the circumstances of this case, it is purely hypothetical. In this respect it differs to the issue of whether or not RBM had the benefit of existing use rights. That issue is a real issue between the parties and the subject of a genuine dispute between them as I explain in pars 30 - 33. But the Minister has not considered or assessed the development application, nor did he reject it on the basis that the proposed development falls outside the development contemplated by pt 5 of the Regulation. If and when RBM obtains owner's consent and a complete and effective development application is lodged, an issue may or may not arise as to whether what is proposed falls within one or more of the incorporated provisions and is thus amenable to development consent. But the issue has not arisen yet, even though Mr Preston made some submissions about it in response to the declaration as sought by RBM. For these reasons, I find it to be a hypothetical issue and the Court cannot entertain it at this stage.

Conclusion

59. My findings, in summary, are as follows:

(1) The development application is not complete and effective, and accordingly the Minister was not bound to consider and assess it and he was entitled to reject it. RBM is not therefore entitled to the first two declarations that it seeks.

(2) The use of the site for the purpose of a large marina (as that expression is described in SREP 23) is an existing use within the meaning of s 106 of the EP& A Act, and RBM has the benefit of existing use rights accordingly. It is therefore entitled to a declaration to this effect.

(3) The issue as to whether the proposed development falls within pt 5 of the Regulation and is therefore amenable to being the subject of development consent under those provisions is a hypothetical issue and the Court cannot entertain it. RBM is not therefore entitled to the fourth declaration that it seeks.

60. The declaration that RBM has sought in respect of existing use rights is in the following terms: A declaration that the present use of the area delineated in red on the map annexed hereto and marked "A" for the purpose of a commercial marina providing the facilities and activities described in sections 3.1.1 and 3.1.3 in the Environmental Impact Statement prepared by Design Collaborative Pty Ltd and dated 8 October 2001 and lodged with the respondent on 10 October 2001 is an existing use within the meaning of section 106 of the Environmental Planning and Assessment Act.

61. It will be readily apparent that a declaration in these terms does not precisely conform to the findings I have made. I have found that the existing use is for the purpose of a large marina as that expression is described in SREP 23. I have not made any findings in relation to a "commercial marina", nor have I made any findings about the present use of the site as described in the EIS. Accordingly, I direct the parties to bring in within seven days short minutes of order to reflect the findings I have made for the reasons expressed in this judgment.

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