Chamwell Pty Limited v Strathfield Council [2007] NSWLEC 114 | Case summary

1 HIS HONOUR: These proceedings are an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (NSW) against Strathfield Council's deemed refusal of a development application for the demolition of existing buildings and the erection and use of a building as a mixed use development comprising a supermarket and multiple-unit housing with basement car parking for those uses at 29 and 33-35 Burlington Road and 32 The Crescent, Homebush. 2 The Council, in issue 1 of its statement of issues dated 22 January 2007, has raised an issue that parts of the development are prohibited and hence the proposed development in its current form cannot be approved. The parts of the development concerned are located on the part of the development site that is zoned 2(b) Residential under Strathfield Planning Scheme Ordinance 1969. Shop, including supermarket, is a prohibited purpose of development in the 2(b) zone. 3 The Court ordered that Council's issue 1 be heard and determined separately to the other issues in the proceedings. The hearing of the issue was fixed for and has proceeded today. Zoning and development control of the land 4 The part of the development site that is zoned 2(b) is known as Lot D in Deposited Plan 391764. The balance of the development site is zoned 3(a) Business General. 5 In the 2(b) zone, development for the purpose of "multiple-unit housing" is a nominate permissible use. The housing component of the proposed development falls within the ambit of this purpose. "Roads" is another nominate permissible purpose. The applicant relies on this purpose for the permissibility of all of the proposed development other than the component for multiple-unit housing, that is located on Lot D. There are a number of other nominate purposes of development that are permitted in the 2(b) zone but none of these are applicable to the applicant's proposed development. 6 In the 2(b) zone, any purpose other than those permitted expressly are prohibited. Hence, development for the purpose of shop, including a supermarket, is prohibited. So too use for the purpose of parking would be prohibited if it is an independent purpose, although not if the parking is subordinate to another permitted purpose of development such as multiple-unit housing. The proposed development 7 The proposed development involves the erection of a 5-storey mixed use building containing 64 residential units, 2,181.64 m2 of retail floor space (a supermarket) and 4 basement levels containing 234 car parking spaces. The supermarket and associated stockroom and loading dock are located on the ground floor of the building outside of Lot D. These parts of the building form, at ground floor level, an "L" shape. Lot D is the space between the two arms of the "L". 8 The building extends over this space at levels 1 to 4 and under this space in basement levels 1 to 4. The above ground levels 1 to 4 are used for multi-unit housing, which is permissible in the 2(b) zone. The basement levels are used for car parking including the driveways and circulation aisles to access the car parking. The permissibility of that part of the basement car parking that is in Lot D is in issue in this case. 9 In the space on the ground floor between the two arms of the "L" of the building is a forecourt, described in the applicant's Statement of Environment Effects (p 5) filed 22 December 2006 as "the supermarket forecourt area". The forecourt area itself is a paved area with a pond and landscaping along the western boundary. The Statement of Environmental Effects (p 5) states that "this forecourt area is proposed to include seating and landscaping and will accommodate travelators, linking the ground floor retail space with the basement parking level immediately below. The supermarket forecourt area will form a communal space, providing pedestrian access into the proposed supermarket, as well as to residential lobbies located at the ground floor level". Evidently, the forecourt is designed to be used both as a passive recreation space by customers of the supermarket and residents and as a means of access. 10 At the northern end of the forecourt (adjacent to the short arm of the "L") is the entry to the supermarket. At the eastern end of the forecourt (adjacent to the long arm of the "L") are travelators. Travelators are moving footpaths on an incline which permit persons, in this case principally customers of the supermarket, to travel between the ground floor and the basement car parking. The travelators are designed to accommodate customers with supermarket trolleys. 11 Between the supermarket and the travelators (where the two arms of the "L" join), is an entrance to a residential lobby. A lift provides access to the basement car park below and residential units above. 12 At the southern end of the forecourt is a pedestrian ramp which joins the forecourt to Burlington Road to the south. The pedestrian ramp lies between, to the east, the enclosed loading dock (which is part of the building that is the long arm of the "L") and, to the west, the entry and exit driveways to the basement car park from Burlington Road. At the northern end of the pedestrian ramp, just as it enters the forecourt, on the eastern side is an entrance to another residential lobby. Again, a lift provides access to the basement car park below and the residential units above. 13 Further to the east again, beyond the entry and exit driveways, is a clock tower and ventilation shaft from the plant room (designated on the basement level plans as residential plant room) in the basement car park. The clock tower is a feature of a commercial character. 14 The basement car park extends over four levels. Basement levels 1, 2 and 3 are for parking for both the retail development (the supermarket), and the residential development. The car parking spaces are designated by "RET" for retail customers and "RES" for residents. The plans show only resident car parking spaces in Lot D. Basement level 4 is reserved for parking for the residents. The residential parking spaces are secured by roller shutters (shown on the plan for basement level 3). 15 A boom gate and parking ticket dispenser is located on level 1 at the base of the entry driveway ramp from Burlington Street. The boom gate and parking ticket dispenser are located within Lot D. The pay station for the car park is located at the base of the travelators but just outside Lot D. Evidently, these devices are for customers of the supermarket, not the residents. Other evidence of use of the basement car parking by customers of the supermarket are the strategic location of trolley bays on levels 1 and 2 for customers to leave their empty supermarket trolleys. The locations of the trolley bays are, however, outside Lot D. 16 The travelators from the ground floor forecourt extend to the basement level 1 car park. From there, a pedestrian ramp continues to basement level 2 car park. Both the travelators and the pedestrian ramp are located mostly in Lot D, but part of each extend to the north outside of Lot D. 17 Circulation aisles and ramps between basement levels allow traffic circulation within the basement level car park. Some of these circulation aisles are also located in Lot D. The competing arguments 18 The Council submits that the parts of the building in Lot D are to be used significantly for the purpose of the retail development of the supermarket. These parts include the entry and exit driveways at ground level, the pedestrian ramp at ground level, the pond and passive recreation area at ground level, the travelators at ground level and basement level 1 car park, the pedestrian ramps at basement level 1 and level 2 car park and circulation aisles in the basement level 1 and 2 car park. 19 Whilst certain of these parts of the building might also be utilised for the residential uses in the building, they are anticipated to be used significantly for and are a fundamental means of access to both the commercial retail space and the commercial car parking spaces. 20 The Council submits that, on the facts, the proper characterisation of the purpose of the use of these parts of the building in Lot D is shop, namely supermarket. Development for the purpose of shop is prohibited in the 2(b) zone. Accordingly, the Council submits, the development application in its current form is not one for which consent can be granted. 21 The applicant submits that the proper characterisation of the purpose of these parts of the building in Lot D is "roads". "Roads" are a permitted purpose of development in the 2(b) zone. "Roads" are not defined in the Strathfield Planning Scheme Ordinance. The applicant submits road bears its ordinary English meaning. The applicant refers to the Macquarie Dictionary definitions of "1. A way, usually open to the public for the passage of vehicles, persons and animals. 2. Any street so called. 3. The track on which vehicles, etc, pass, as opposed to the pavement". 22 The applicant submits that the parts of the building in Lot D referred to by the Council meet the description of ways for the passage of vehicles and pedestrians for all components of the development, including the residential and commercial uses and, therefore, fall within the ordinary meaning of the term "road". 23 The applicant submits that because "roads" are a nominate permissible purpose, once the parts of the building in Lot D can be said to fall within this ordinary meaning of roads that has the consequence of making the purpose of the use of those parts of the building "roads" and no other purpose. 24 The applicant submits that the fact that the parts of the building will be used by pedestrians and vehicles to access the retail components of the building does not cause the purpose of that use to become shop. The applicant relies on Argyropoulos v Canterbury Municipal Council (1988) 66 LGRA 202 at 207. There, Cripps J held that the construction and the use of a road on an access handle could properly be characterised as being for the purpose of a road, notwithstanding that the vehicles using the road could proceed to and leave from land zoned and used for light industry purposes. 25 The applicant submits that, even if use of these parts of the building in Lot D could be seen to be ancillary to or related to or interdependent with the retail purpose, the use could still be classified as being for an independent purpose of road: see Baulkham Hills Shire Council v O'Donnell (1990) 69 LGERA 404 at 409. As "roads" are a permissible purpose, this would make use of these parts of the building permissible. 26 The Council replied that the decision in Argyropoulos v Canterbury Municipal Council was incorrectly decided and should not be followed by this Court. Proper characterisation 27 In planning law, use must be for a purpose: Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534-535 and Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (1993) 80 LGRA 173 at 188. The purpose is the end to which land is seen to serve. It describes the character which is imparted to the land at which the use is pursued: Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534. 28 In determining whether land is used for a particular purpose, an enquiry into how that purpose can be achieved is necessary: Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493 at 499-500. The use of land involves no more than the "physical acts by which the land is made to serve some purpose": at 508. 29 In the case of use of land for the purpose of retail development, such as the supermarket in this case, the purpose can only be achieved by the physical acts of constructing not only the space in which the retailing takes place but also the spaces for the associated activities as well. 30 In this case, the use of the land for the supermarket involves construction of: firstly, the building in which the supermarket and its associated stock room and loading dock can be provided; secondly, basement car parking for customers who wish to shop at the supermarket; thirdly, driveways providing vehicular access from the public road to the basement car park and passageways, travelators and pedestrian ramps providing pedestrian access between the public road, the car park and the supermarket; and fourthly, the landscaped, supermarket forecourt area that provides passive recreation and access for customers. 31 The physical acts involved in the erection of the building including the construction of the car park, driveways, access ways and the landscaped forecourt are the means by which the land is made to serve the retail purpose of the supermarket. The supermarket could not function on the land without the car park, driveways, access ways and landscaped forecourt. 32 Viewed this way, all of the land on, in or under which the applicant's proposed retail development is to be carried out, including Lot D, can be seen to be intended to be used and will be used for the purpose of the supermarket. 33 The fact that the nature of the uses of different components or parts of the development may vary is not necessarily of importance. Obviously, the only part of the proposed development that will have a use of the specific nature of supermarket is that part of the building which incorporates the supermarket. The nature of the uses of other parts of the building, such as the car park, driveways, access ways, and landscaped forecourt, is different. 34 However, the nature of the use needs to be distinguished from the purpose of the use. Uses of different natures can still be seen to serve the same purpose: see Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534, 535 and Warringah Shire Council v Raffles (1978) 38 LGRA 306 at 308. 35 In this case, the use of the car park, driveways, access ways and landscaped forecourt are each designed to serve the end of enabling the supermarket to be carried on. That is their purpose and that purpose imparts to the land on which those uses are pursued the character of shop, including the supermarket. The end to which the parts of the land in Lot D is to serve is not roads. 36 The characterisation of the purpose of a use of land should be done at a level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on, not in terms of the detailed activities, transactions or processes: Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305 at 310. 37 In this case, this involves describing the purpose of the uses at a level of generality that covers the individual activities of customers of the retail uses in using parts of the building within Lot D including the car park, driveways, access ways and landscaped forecourt and not in terms of these detailed activities. The purpose that covers these individual activities of customers is shop; it is not road for the activity of customers driving along driveways and circulation aisles or customers walking along passageways, travelators or pedestrian ramps and it is not parking for the activity of customers parking their cars in the basement car park. 38 The retail development of the supermarket constitutes one integrated and indivisible business or activity. It is not capable of subdivision or sectionalisation into the retail section (comprising the supermarket and its associated stockroom and loading dock) and the non-retail section (comprising the parts of the building in Lot D on the ground floor and the basement car park levels that will be used by customers of the retail section) in the manner contended for by the applicant. The parts of the building in Lot D on the ground floor and in the basement car park levels that will be used by the retail customers are integrated with the supermarket. 39 The activities that will be carried on by the retail customers in those parts of the ground floor and basement car parking levels in Lot D (such as parking their cars in the basement car park in the car parking spaces provided for retail customers, using the communal space of the landscaped forecourt area and transporting their purchased goods to their cars parked in the basement car park) are day to day activities of the supermarket. It is impossible to treat the activities as separate or severable from the retail business: see Gold Star Bakeries Pty Ltd v Waverley Municipal Council (1964) 10 LGRA 396 at 399. 40 The activities of the retail customers on the ground floor and the basement car parking levels in Lot D are "so commingled in time, place or circumstances with the actual exercise or carrying on" of the retail uses of supermarket "that in a practical sense one cannot conceive of the one being carried on without the other": Scott's Provision Stores Pty Ltd v Sydney City Council (1958) 3 LGRA 191 at 195-196. See also Goodwins (Sydney) Pty Ltd v Sydney City Council (1960) 5 LGRA 346 at 354. 41 In each of Scott's Provision Stores Pty Ltd v Sydney City Council (1958) 3 LGRA 191 and Goodwins (Sydney) Pty Ltd v Sydney City Council (1960) 5 LGRA 346, the particular facts led the Court to conclude that the parking on adjoining area was a severable and separate use from that of the industry for which the parking was sought to be provided. However, interestingly, in the Scott's Provision Stores case, at a subsequent time when the parking became integrated with the bakery and pie factory, a different conclusion was reached; the proposed use of land for parking and loading motor vehicles was not severable from the industrial use of the bakery: Scott's Provision Stores Pty Ltd v Sydney City Council (1967) 13 LGRA 271 at 275-276. 42 The character, extent and other features of the uses of the car park, driveways, access ways and landscaped forecourt in Lot D and their integral relationship with that part of the building incorporating the supermarket mean that it is not appropriate, as a matter of fact, to characterise the uses as being for the purpose of roads. However, even if the uses could be seen to be for that purpose, they would nevertheless on the facts of this case be subordinate to the purposes of shop and multiple unit housing. 43 In Foodbarn Pty Limited v Solicitor-General (1975) 32 LGRA 157 at 161, Glass JA said "it may be deduced that where a part of the premises is used for a purpose which is subordinate to the purpose which inspires the use of another part, it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being used. Doubtless the same principle would apply where the dominant and servient purposes both relate to the whole and not to separate parts". See also Lizzio v Ryde Municipal Council (1983) 155 CLR 211 at 216-217. 44 In this case, the uses of the parts of the building in Lot D for vehicular and pedestrian access are subordinate to the purpose of shop (supermarket) and multi unit housing. The uses are not by reason of their character, extent and other features capable of being an independent use for roads. This situation differs from that considered in Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 at 409-410. 45 The characterisation of the purpose of development must also be done in a common sense and practical way. A common sense and practical appraisal of the relevant parts of the building in Lot D clearly shows they cannot be described as a road within the ordinary meaning of the word "road". Of course, on the driveways, ramps and the circulation aisles in the basement car park, vehicles can pass. So too on the pedestrian ramps, the travelators and in the forecourt area, pedestrians can pass. But, these facts do not make those parts of the building, in the way that they are intended to be used and would be constructed to be used, a road. 46 The retail customers who drive their cars off Burlington Road down the driveway into the basement car park underneath the building containing the supermarket, collect their parking ticket from the ticket dispenser and park in car parking spaces especially provided for supermarket shoppers no doubt would not consider they had driven on a road since they left Burlington Road. The customers of the supermarket who are wheeling their supermarket trolley laden with goods purchased from the supermarket into the forecourt area and down the travelator especially provided for supermarket customers and their trolleys to their cars parked in the basement car parking spaces for supermarket customers would not describe the route they had passed as a road. Similarly, customers using the seating in the landscaped forecourt, a space which has building walls on two sides, a sunken entry and exit driveway to the basement car park with a safety wall on another side and the floor of the residential units above, would not consider that they were sitting on a road. 47 The applicant's plans and drawings do not show a road in Lot D. The Perspective View from Burlington Road-East Aspect on the cover of the set of drawings shows the demonstrable difference between Burlington Road, which is clearly a road, and the proposed building and its integrated landscaping and pedestrian ramp to the forecourt and supermarket, as well as the separate clock tower, none of which reads as a road. The South Elevation (Burlington Road) shows the driveway entrance to the basement car parking, the landscaped forecourt area and the pedestrian ramp. These parts are seen to be part of the building itself. They do not constitute a separate road. Similarly, the West Elevation shows the forecourt and the pedestrian access way within the building envelope with the residential units above. Again, these parts of the building do not read as a road. Finally, Section AA and to a lesser extent Section BB show the forecourt with its pond, the travelators and the car parking all as integrated and indivisible parts of the mixed use development building, not as a separate road. 48 Although I do not consider that it is proper on the facts of this case to classify the parts of the building in Lot D as being for a purpose independent from the two purposes of the multi-use development, namely retail and multiple-unit housing, I note that if there were to be an independent purpose of the basement car park, on the facts here it would have to be parking, not roads. I note, however, that parking itself would be a prohibited development as an independent purpose. 49 The decision of Cripps J in Argyropoulos v Canterbury Municipal Council (1998) 66 LGERA 202 is distinguishable on the facts. There, the access handle was constructed and used as a road within the ordinary meaning of that word. The access handle was separate to the land on which the light industrial use was carried on. In this case, however, for the reasons that I have given, the parts of the building in Lot D are an integral and indivisible part of the building in which the retail development is to be carried out and they are not constructed or used as a road in the ordinary sense. The two situations are factually dissimilar. 50 Accordingly, it is not necessary to determine the Council's contention that the decision in Argyropoulos v Canterbury Municipal Council was incorrectly decided and should not be followed. Conclusion 51 Parts of the proposed development in Lot D, as shown in the applicant's current development application, are properly to be characterised as being for the purpose of shop, namely a supermarket. Development for the purpose of shop (supermarket) is prohibited in the 2(b) zone. Lot D is in the 2(b) zone. Accordingly, the proposed development in its current form is not able to be approved. The proposed development would need to be redesigned to exclude from Lot D any development for the purpose of shop. 52 The above reasons are sufficient to determine the issue that has been fixed for hearing. The conclusion I have reached will require the applicant to consider how the development can be redesigned. It is appropriate to adjourn the proceedings to allow the applicant time for this consideration. Costs 53 I have determined for the reasons I have given above that on the facts the proper characterisation of the development proposed in the applicant's current development application involves use of parts of the building for the purpose of shop, which is a prohibited use. That conclusion means that the Court has answered the Council's issue 1 in its favour and against the applicant. The Council applies for the costs of this part of the proceedings in relation to the preliminary issue. 54 Under s 69(2) of the Land and Environment Court Act 1979 costs are in the discretion of the court, however, that power is subject to the Court rules. The Land and Environment Court Rules, Pt 16 r 4(2), provides that in certain proceedings in class 1 of the Court's jurisdiction specified in Pt 16 r 4(1), there should be no order as to costs unless the Court considers it fair and reasonable in the circumstances of the case. 55 In the recent decision of the Court of Appeal in Hunter Development Brokerage Pty Ltd v Cessnock City Council [No 2] [2006] NSWCA 292, Bryson JA said that Pt 16 r 4(2), where it applies to the particular proceedings, is the gateway through which the Court must pass before making an order for costs: at [4]. This involves the Court finding, on the facts in the particular circumstances of the case, that it is fair and reasonable to make an order for costs. Basten JA noted that the fact that the proceedings involve a question of law or have lost the character of merits review, does not necessitate a finding that it is fair and reasonable to make an order for costs, although those facts may be relevant considerations to take into account along with all other circumstances: at [60]. 56 The Court of Appeal again considered the matter in Residents Against Improper Development Inc v Chase Property Investments Pty Ltd [2006] NSWCA 323, Tobias JA said that this Court should follow the decision of the Court of Appeal in Hunter Development Brokerage: at [205]. McClellan CJ at CL provided a helpful explanation of the history of different courts' approaches in merits review proceedings to awards of costs (at [219]-[239]) and provided an explanation of the earlier decision of this Court in Gee v Port Stephens Council (2003) 131 LGERA 325: at [240]-[251]. 57 The characterisation of the purpose of a development is an essential task for any consent authority in exercising the power to determine a development application. That task involves, largely, questions of fact and degree although it can also involve questions of law including determining what is the proper interpretation of relevant environmental planning instruments and of the nominate purposes of development. It is a task that consent authorities both at first instance, mainly councils, and on appeal in this Court must undertake on a daily basis. 58 In this case, there was a factual dispute as to the proper classification of the purpose of the proposed development. I have determined that factual dispute in favour of the Council's argument rather than the applicant. It was not necessary in so doing to embark upon the more difficult decision of the correctness of certain previous decisions of this Court, notably Argyropoulos v Canterbury Municipal Council (1988) 66 LGRA 202. 59 As I have said, the characterisation of the purpose of development is a task that consent authorities must do on a regular basis. Mostly, this is done at the time of and as part and parcel of the determination of the development application. In this case, the parties sought and the Court agreed to separate the question from the balance of the hearing. There were certain advantages to both parties in doing this, including the saving of the cost of preparation of all of the other issues raised in the proceedings. But I do not consider that the separation of the issue in this case changes the character of that task of characterisation. 60 Having regard to these facts, I do not consider that it is fair and reasonable in the circumstances of this case to order the applicant to pay the Council's costs of the hearing and determination of the preliminary question of the characterisation of the purpose of this development. In these circumstances, I do not get to pass the gateway, through which I would need to pass in order to make an order for costs. Accordingly, the proper order is that each party pay their own costs. Orders 61 The Court makes the following orders:

Chamwell Pty Limited v Strathfield Council

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