Respondent's submissions
33 The Council submits that the proposed use of Level 1 for the purposes of a function centre and for the provision of conferences are two separate and independent uses of the land. The Council accepts that the use for the purpose of a conference facility with ancillary food and beverage provision is permissible as an innominate use; however, the use for the purpose of a function facility is characterised as a restaurant, and as a "water-based restaurant and entertainment facility" is a prohibited use in the W2 zone. The Council submits that the function centre is a restaurant because of the provision of food and drink to the people who go there, and it is not necessary that it be open to members of the public. The area is not a bare hall for people to hire for functions, and the kitchen and other facilities occupy an equal floor area to that proposed for seating of clients, which should be compared with the level 2 restaurant where these "back of house" elements occupy one third of the floor area. Even with the ability to halve the area of the room the provision of food would still be an essential component.
34 The Council submits that the Model Provisions definitions should not be used, as the SREP was made after the Model Provisions and it would have been open for the SREP to adopt them. The appropriate definition of "commercial premises" is its ordinary dictionary meaning, however it is not sufficient that the use be for a commercial return, as that is too broad, and would include many of the uses listed in the Table to cl18 of the SREP.
Consideration
35 The approach to be adopted to characterisation of the proposed development was stated by Kitto J in Shire of Perth v O'Keefe (1963) 110 CLR 528:
The application of the by-law in a particular case is therefore not to be approached through a meticulous examination of the details of processes or activities, or through a precise cataloguing of individual items of goods dealt in, but by asking what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date.
36 In Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400 at 407 Preston CJ held, applying Royal Agricultural Society (NSW) v Sydney City Council (1987) 61 LGRA 305 at 310, that the characterisation of the purpose of a use of land should be undertaken "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". The task of characterisation of a proposed development must also be done in a "common sense and practical way": Chamwell, at 408.
37 The physical works proposed, marked in yellow on the plans, relate primarily to the works required to construct a kitchen, storage, bar, toilet facilities and service areas on level 1, and, as was the case in Chamwell, are "the means by which the land is made to serve" the purpose of the proposed development. In identifying that purpose, the original development application before its amendment in May 2009, including the description provided in the Statement of Environmental Effects, is of limited assistance. The Statement of Environmental Effects stated that the facility was being designed to accommodate a café and an ancillary child minding service, and that the applicant was relying on existing use rights arising from the approval in 2004 of refreshment rooms. In oral submissions Mr Newport for the applicant stated that the applicant is not relying on any existing use rights to support the amended development application.
38 The application as amended is described in the letter dated 15 May 2009 as being for the "Level 1 Function Centre". The Plan of Management refers throughout to level 1 as a "Function Centre". The letter dated 15 May 2009, and the Plan of Management, distinguish between two different uses proposed for level 1, namely function centre and conference venue. Based on the Plan of Management, the proposed use as a function centre would include weddings (an average being 80-120 guests), and other functions at which meals could be served; the proposed use as a conference venue could accommodate up to 300 people for a presentation or seminar; the premises are to continue to be licensed; and the hours of operation are 7am to 12am Monday-Saturday and 6am to 11am Sunday.
39 In my view, when considered at a high level of generality, the purpose of the proposed uses of level 1 could be regarded as being to provide a venue for the holding of functions, including weddings, and conferences, at which both food and alcohol can be served. That purpose could be usefully defined in terms of being a "function centre" as defined in the Standard Instrument (Local Environmental Plans) Order 2006, which means "a building or place used for the holding of events, functions, conferences and the like…" However, that definition does not apply in terms to the SREP, and the SREP does not make specific provision for a "function centre" either in the Table which forms part of cl18 or in the definitions in the Dictionary to the SREP, or in other provisions such as the definition of "land/water interface development". In considering how to characterise the purpose as understood from the amended development application, the issue is whether the proposed uses as a conference facility and a function centre are for a single purpose, namely as "commercial premises" as contended by the applicant, or for two separate purposes as contended by the Council.
40 In construing cl18, the principles outlined by Jagot J in Matic v Mid Western Regional Council [2008] NSWLEC 113 are of assistance. Jagot J held:
7 The meaning of a provision in an environmental planning instrument must be determined having regard to its context and purpose ( Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379 at [37] - [46] and [63]; s 33 of the Interpretation Act 1987). "Context" has a wide scope and may include the "mischief which…one may discern the statute was intended to remedy" so that, by this method, an alternative construction to the literal meaning may be preferred if it is "reasonably open and more closely conforms to the legislative intent" ( CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408).