Berowra RSL Community and Bowling Club Ltd v Hornsby Shire Council - [2000] NSWLEC 243 - NSWLEC 2000 case summary — Zoe

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Berowra RSL Community and Bowling Club Ltd v Hornsby Shire Council

[2000] NSWLEC 243

Land and Environment Court (NSW)|2000-10-17|Before: Pearlman J, Mr J, Mr P, Sheahan J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2000-10-17

Before

Pearlman J, Mr J, Mr P, Sheahan J

Source

Original judgment source is linked above.

Judgment (310 paragraphs)

[1]

CITATION : Berowra RSL Community and Bowling Club Ltd v Hornsby Shire Council [2000] NSWLEC 243 APPLICANT Berowra RSL Community and Bowling Club Ltd PARTIES : RESPONDENT Hornsby Shire Council FILE NUMBER(S) : 10001 of 2000 CORAM: Pearlman J KEY ISSUES: Development :- characterisation - existing use - parking - traffic - noise County of Cumberland Planning Scheme Ordinance cl 11 Crown Lands Consolidation Act 1913 Environmental Planning and Assessment Act 1979 s 79C, s 106, s 107, s 108 Environmental Planning and Assessment Regulation 1980 cl 54 LEGISLATION CITED: Environmental Planning and Assessment Regulation 1994 cl 38, cl 39, cl 40, cl 41, cl 42, cl 43, cl 44 Hornsby Planning Scheme Ordinance cl 97 Hornsby Shire Local Environmental Plan 1994 cl 23 Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 Registered Clubs Act 1976 Berowra RSL Community & Bowling Club Ltd v Hornsby Shire Council (2000) 109 LGERA 328; Egan and Ors v Hawkesbury City Council and Anor (1993) 79 LGERA 321; Fabcot Pty Ltd v Hawkesbury City Council (1997) 93 LGERA 373; North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd and Ors (1989) 67 LGRA 344; CASES CITED: Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305; Shire of Perth v O'Keefe and Anor (1964) 10 LGRA 147; South Sydney City Council v Houlakis and Anor (1996) 92 LGERA 401; Warringah Shire Council v Caltex Oil (Australia) Pty Ltd (1989) 68 LGRA 206; Woollahra Municipal Council v Minister for the Environment and Anor (1991) 73 LGRA 379 DATES OF HEARING: 17/10/2000, 18/10/2000, 19/10/2000, 20/10/2000, 24/10/2000, 25/10/2000, 30/10/2000 DATE OF JUDGMENT: 12/05/2000

[2]

[25]

(a) The primary purpose for the establishment of the Bowling Club in the early 1960's was to establish a place to play bowls, but a secondary purpose was to establish a community facility, since such a facility was lacking in Berowra at that time. From the time of the establishment of the Bowling Club, there were members who regularly played bowls, such as Mr Thompson. There were also members who both played bowls and enjoyed the social facilities (such as Mr Huett, who played bowls once a week and was a regular afternoon drinker), and there were also members who were only social members and who did not play bowls at all (such as Mr Hatfield). (b) It was almost universal in New South Wales that bowling clubs provide a clubhouse facility for their members. As Mr Thompson expressed it in giving oral evidence, if there was no clubhouse, there would be no bowls, and if there were bowls, there would be a clubhouse. The clubhouse served various purposes. It has been a facility for providing refreshments to members, and has permitted the bowling club to augment its income from members' fees, by revenue from bar sales, poker machines, and the holding of functions. (c) Members' fees have been insufficient to cover the costs of running the Bowling Club, the principal expenditure being the maintenance of the two bowling greens. It is essential, therefore, to augment that income by having a clubhouse, obtaining a liquor licence, encouraging visitors, and utilising the facilities for functions. (d) The bowling greens have been utilised about three or four days each week, and on special occasions, but the clubhouse is open every day, and closes each evening about 8:30 pm; (e) The Bowling Club had kitchen facilities until the early 1990's, but those facilities failed to meet required standards, and have not been used from that time. Morning and afternoon teas, and the provision of food at functions have to be brought to the site; (f) Although bowls have been the primary recreational activity conducted on the site, over the years other recreational sporting activities have taken place. Table tennis was played until about 1975, and there was an affiliated fishing club and indoor bowls.

[50]

In the end, the respondents' submission is to be accepted only if this Court is to infer the intention that, despite the meanings assigned in the definitions, consent can be given to a use which is proscribed because it also falls within another use which is defined by the local environmental plan. That, of course, can be done if there is, in the plan and the context, some appropriately compelling consideration for the departure from the ordinary and natural meaning of the terms. 30. In my opinion, in this case there is no "appropriately compelling consideration" for departing from the ordinary and natural meaning of the defined terms as they are used in the Hornsby LEP. If regard is had to the open space zones in the Hornsby LEP, it is apparent that it was not intended that a "registered club" could be carried on with consent simply because the use of the site also falls within the definition of "recreation area". There are three such open space zones. The first, within which the site falls, is Open Space A (Public Recreation - Local) Zone. In that zone, as I have earlier said, development for the purpose of "recreation areas" is permissible with consent, but development for the purpose of a "registered club" is prohibited. A similar position pertains to the second zone, which is entitled Open Space B (Public Recreation - District) Zone. Again, development for the purpose of " recreation areas" is specified as being permissible with consent, whilst development for the purpose of " registered club" falls within the innominate purposes which are prohibited. But in the third zone, which is entitled Open Space C (Private Recreation) zone, development for the purposes both of " recreation areas" and " registered clubs" is permissible with consent. The clear intention of the Hornsby LEP is, I think, that development for the purpose of " registered clubs" is only permissible with consent in the third zone, and it is prohibited in both other open space zones even though it may fall within the definition of " recreation area". That conclusion also follows from the titles of the zones. The third zone is the only zone concerned with private recreation. That is a description more akin to a " registered club" because such clubs normally involve private membership rather than public use.

Berowra RSL Community and Bowling Club Ltd v Hornsby Shire Council

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