George Eddy Holdings Pty Limited v The Council of the Municipality of Kiama

Chamwell Pty Limited v Strathfield Council (2007) 151 LGERA 114 Dem Gillespies v Warringah Council [2002] NSWLEC 224 CASES CITED: Hospital Action Group Association Inc v Hastings Municipal Council (1993) 80 LGERA 190 McCabe v Blue Mountains City Council 145 LGERA 86 Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 Wygrien v Kiama Municipal Council and Anor [2008] NSWLEC 1233

APPLICANT Mr I Hemmings, barrister SOLICITORS Wilshire Webb Staunton Beattie Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr P Clay, barrister SOLICITORS RMB Lawyers with Kearns & Garside

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10927 of 2009 George Eddy Holdings Pty Limited v The Council of the Municipality of Kiama

JUDGMENT 1 COMMISSIONERS: This is an appeal against the refusal of DA10.2009.126.1 by the Council of the Municipality of Kiama (the council) for the extension of an existing water park and associated activities known as "Jamberoo Action Park" (the Park) at Jamberoo Road, Curramore (the site). 2 The contentions raised by the council relate to the permissibility of the proposed extensions, consistency with zone objectives, visual impact, traffic management and the provision of water and disposal of sewage. The traffic management contention was satisfactorily addressed through further amendments however the parties were not in a position to deal with the visual impact and the provision of water and disposal of sewage contentions as the experts were still assessing recent amendments. 3 It was agreed that the permissibility contention and the consistency with the zone objectives should be considered as a preliminary matter and in the event that the proposed use is permissible and is consistent with the relevant zone objectives then further dates will need to be provided for consideration of the visual impact and the water and disposal of sewage contentions. The site 4 The site comprises Lot 1 in DP 1070506 with an area of 42.61 ha and Lot 3 in DP 258919 with an area of 20.49 ha. Lot 1 contains the majority of the activities associated with the Park, including tobaggan tracks, water slides, an artificial beach, pools, go-kart circuit, mini golf area, restaurant and reception centre, administrative facilities and car parking. Lot 3 is generally vacant and used for the purposes of grazing with the exception of the sewage treatment plant and some sheds associated with the activities on Lot 1. 5 The general area is predominantly rural in character where properties are used for large and small-scale rural activities and rural residential dwelling houses. The proposal 6 The proposal provides for an extension of the existing activities in the Park to include the following: - Lazy River tube ride, - Rain Fortress water play structure, - children's themed water play zone, - Tornado raft ride, - Behemoth raft ride, - Uphill Coaster raft ride, - Mammoth River raft ride, - shade and picnic shelters, - food and beverage outlet, - 1703 additional car parking spaces, - associated landscaping, and - demolition of existing go-kart circuit to accommodate the new rides. 7 All new activities will be accommodated within Lot 1 and the additional car parking and upgraded effluent treatment and effluent irrigation system are to be located within Lot 3. Relevant planning controls 8 The site is located part within Zone 1(a) and part within Zone 7(e)(Rural Environmental Protection (Hinterland) under Kiama Local Environmental Plan 1996 (LEP 1996). Zone 7(e) is located on the northern part of Lot 1 and is not subject to any works associated with the proposed development. Clause 4 provides aims and objectives for the plan and cl 6 provides definitions. 9 Clause 9(3) provides that consent shall not be granted unless "the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out". 10 The objectives of the 1(a) zone are: (a) to provide suitable land for agricultural use, (b) to protect the agricultural potential of rural land, (c) to prevent the fragmentation of rural land of prime crop and pasture potential, (d) to enable uses that are compatible with the rural use of the land, (e) to protect the landscape quality of the rural area, (f) to cater for small domestically-based enterprises that do not adversely affect the environment or the amenity of the neighbourhood and its residents, and (g) to ensure that development and land management practices do not have an adverse effect on water catchments, water quality, land surface conditions and important ecosystems such as streams, estuaries and wetlands. 11 Clause 12(1) provides specific requirements for the 1(a) zone and requires that consent shall not be granted unless the Court has taken into account the effect that the proposed development will have on the agricultural viability of that land and land in the vicinity although the council raised no issue on agricultural viability. Is the proposed development permissible? 12 The permissibility contention arises from the use of Lot 3 for additional car parking for some 1700 cars, associated landscaping, sewage treatment plant, sewage settlement pond and effluent irrigation areas. With the exception of the visual impact issue, the proposed new activities on Lot 1 were not in contention as it was agreed that this lot benefits from existing use rights and the new activities were seen to be ancillary to the existing use of Lot 1 for the Park. 13 The permissibility contention centres on the proper characterisation of the development presently carried out on Lot 1 and the proposed associated activities on Lot 3. Put simply, if the existing and proposed use is categorised as an " amusement park", then the application must be refused as it is a prohibited use within the 1(a) zone. There was no dispute that proposed works on Lot 3 were a fundamental and necessary part of the works proposed on Lot 1. Conversely, if the existing and proposed use is categorised as a "recreation facility", it would be a permissible use within the 1(a) zone and would need to be considered under cl 9(3) and 12(3) and if found acceptable, a merit assessment would be required to determine its overall acceptability. 14 The following definitions from LEP 1996 are relevant: amusement park means a commercially run ground where amusements and mechanical entertainments such as merry-go-rounds and the like are permanently situated. recreation facility means a building or place used for indoor or outdoor recreation, a billiard saloon, table tennis centre, squash court, swimming pool, gymnasium, health studio, bowling alley, fun parlour or any other building of a like character used for recreation and whether used for the purpose of gain or not, but does not include a place of assembly . The council's submissions 15 Mr Clay submits that it is not a definition itself which creates a prohibition or otherwise. A definition is not an operative provision in a local environmental plan so the meaning of a definition turns on the context in which it appears, considered as a whole. 16 The elements in the definition of "amusement park" that are not contentious are that it is a commercially run ground and that it is permanently situated. The question is whether the facilities (other than the ancillary buildings and the like) are amusements and mechanical entertainments such as merry-go-rounds and the like is in dispute. Mr Clay submits that the term such as means "for example" and is not a limiting phrase but simply giving examples of what are amusements and mechanical entertainments. . The term and the like also has its ordinary meaning; being things which are similar. The fact that examples are provided in the definition does not derogate from the requirement to actually construe the land use as an "amusement park", in particular, amusements and mechanical entertainments

17 Mr Clay provides definitions of amusement, mechanical and entertainment from the Macquqrie Dictionary On-Line but accepts that while dictionaries are a useful tool in determining the meaning of words, some caution must be exercised in their use. Reference is made to McCabe v Blue Mountains City Council 145 LGERA 86 where Jagot J referred at [51] to House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; 106 LGERA 440, where Mason P identified the limits on the use of dictionaries in the search of meaning. Her Honour noted that at [22], [24] and [30] Mason P emphasised that the context of the search is planning law and that environmental planning instruments and consents are concerned with "physical use, environmental impact and amenity". 18 Mr Clay submits that the objective is to glean the meaning of the phrase in the planning context - having regard to the physical use, environmental impact and amenity. The essence of the dictionary definitions is that it is the amusement or entertainment, or both, which is applied to an individual. It is something active provided by the development which results in amusement or entertainment. It is not the passive provision of something, For example, a swimming pool would not be characterised as amusements and mechanical entertainments because the pool itself is passive - it is a facility which a person may be entertained or used in a variety of ways, but it is not the pool that actively provides that amusement or entertainment. By contrast, a merry-go-round is itself amusing or entertaining. It is active. It does something. It goes around and around and probably up and down. It is mechanical. It provides the amusement and/or entertainment. 19 In considering the major components of the proposed development, Mr Clay submits that none of the rides are entirely passive. Each ride attempts to amuse or entertain (or both) by the provision of something, although there are obviously variations in the level of "external" provision of the amusement. All rides have some level of mechanical intervention and none is entirely passive. There is mechanical assistance for each ride in varying degrees though some would seem to offer significant mechanical assistance. 20 A consideration of the physical use, environmental impact and amenity of the Park is similar to the traditional amusement park, such as Luna Park. There is noise, traffic, large numbers of people, queues and people using rides. Taking into account the meaning in planning terms of amusement park and the definition, the proposal falls clearly within the definition of amusement park. The applicant's submission 21 Mr Hemmings submits that it is necessary for the Court to determine whether the purpose being served by the use of the land is for an amusement park or a recreation facility. That is because the use must be for a purpose and the purpose is the end to which the land is seen to serve. In undertaking the task of statutory interpretation, it is necessary to recall that definitions are merely an aid to construction and do not operate in any other way, so that the effect of the local environmental plan and its operation, in relation to the purposes of development must be found in the substantive provisions of the instrument. On this basis it is appropriate to look to both the policy and purpose of LEP 1996 and also its text and structure. 22 Mr Hemmings accepts that the Park is a commercially run ground and is permanently situated and that the area of disagreement relates to the interpretation of the words amusements and mechanical entertainments such as merry-go-rounds and the like in the definition. These words must be given their normal meaning and not a technical meaning. The Macquarie Dictionary defines "amusement" as: 1. The state of being amused; enjoyment. 2. That which amuses; entertainment. 3. A mechanical entertainment, as a merry-go-round at a fair.

23 Recreation is defined in the Macquarie Dictionary as "pastime, the version, exercise or the resource affording relaxation and enjoyment."

24 These terms are used independently in LEP 1996 and there is potential for significant overlap. At its most basic, users of the Park both recreate and are amused. The Park provides a range of activities and equipment for recreation and/or amusement. If the task of interpretation includes a consideration of the activities and equipment that predominates, and then tries to relate those activities and/or equipment to the definition; those most closely relating to one of the identified activities and/or equipment is the "swimming pool". The vast majority of the Park is focused in and around swimming pools. Conversely, if the use is analysed by reference to the "amusement park" definition and an attempt is made to find the examples "such as merry go rounds"; there are none. 25 Although there may be some "mechanical entertainment", such as the chairlift, cars and train, the categorisation also depends upon the approach taken to the interpretation of those words. The Macquarie Dictionary definition of "mechanical entertainment" becomes circular as the definition of entertainment expressly identifies "a mechanical entertainment, as a merry-go-round at a fair". The train gives access to the Park as a whole and clearly is subordinate to the predominant swimming pool use of the Park. Also, the chairlift is not easily considered a "mechanical entertainment although the ride serves the function of providing access to the toboggans. Similarly, the toboggans are not easily identified as "mechanical entertainment".

26 Mr Hemmings submits that the totality of the activities being carried out, and the equipment being used at the Park properly amounts to a "recreation facility" and not an "amusement park". The use is not characterised by "amusements and mechanical entertainment" such as merry-go-rounds but rather provides for both indoor and outdoor recreating. Findings 27 The general approach to characterisation for planning purposes is best set out by Preston CJ in Chamwell Pty Limited v Strathfield Council (2007) 151 LGERA 114 where His Honour relevantly states (at 27 and 28): 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. 28 His Honour further relevantly states (at 33 to 36 and 45): 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. . 45 The characterisation of the purpose of development must also be done in a common sense and practical way… 29 The general thrust of the findings in Chamwell is that the characterisation must focus on the purpose of the land. This must be done at a level of generality and in a commonsense and practical way that is sufficient to include the individual uses that make up the purpose. While there may be a number of different uses, these different uses may still serve the same purpose. 30 The definition of "amusement park" provides for: a commercially run ground, amusements and mechanical entertainments such as merry-go-rounds and the like, and the park to be permanently situated. 31 As submitted by Mr Clay, the objective is to glean the meaning of the term "amusement park" in a planning context. The LEP 1996 definition and dictionary definitions provide some guidance however, in our view, are not definitive. An "amusement park" has a familiar and generally well understood meaning. Most people would have likely attended an amusement park at some time. We accept that Mr Clay's use of Luna Park as an example of an "amusement park" is valid and would generally be accepted by most members of the community as being a typical example of an amusement park and representing the ordinary meaning of the term. While the types of amusement parks may vary and have different components or parts, based on our general observations at venues such as Luna Park and the Park, they have a number of consistent characteristics. These characteristics include: a target patronage of largely, but not exclusively, children or young adults, multiple activities that would be classified as "active" rather than "passive", activities that a provide a short time duration to allow for turnover of patrons, activities that have a fixed time, frequency of use that is not likely to be daily, weekly or possibly monthly, generally provide raised levels of entertainment, enjoyment, excitement or thrills for the duration of the activity, specialised activities that are not generally found in most areas, specific themes but still with consistent characteristics, staff to assist the operation, and provision of structures for queuing and crowd control.

32 These characteristics are not inconsistent with specific requirements of the definition of an "amusement park" in LEP 1996 and the more general dictionary definitions of "amusement" or "entertainment".

33 We do not accept the submission of Mr Hemmings that the Park is most closely related to a "swimming pool" (and as such, falling within the definition of "recreation facility") because of the water-based activities. This submission falls squarely within the findings in Chamwell where it is necessary to distinguish between the purpose of the use and the components that make up the purpose. In our view, the swimming pool is clearly a component of the purpose rather than the purpose itself. 34 In accepting that some people could be seen to "recreate" at the Park, we are satisfied that this would be a minor individual activity and not the purpose of the use of land to utilise the range of activities available at the Park. We are also largely untroubled in concluding that the existing and proposed range of activities would fall within the term "amusements and mechanical entertainments such as merry-go-rounds and the like," in the definition of "amusement park". The submission of Mr Clay highlighted the mechanical components of each of the proposed new activities although we do not accept that it is necessary for every activity to have some form of mechanical component to satisfy the definition. 35 We also do not accept the submission of Mr Hemmings that as the there are no examples "such as merry go rounds" then the Park cannot be categorised as an "amusement park". The use of the term "merry go round" is simply an example of "amusements and mechanical entertainments" and does not require the existence of such a facility to satisfy the definition of "amusement park". 36 For the reasons in the preceding paragraphs, the characterisation of the purpose of the use of land should be as an "amusement park" and as such the proposed development is a prohibited use and the appeal must be dismissed. 37 For completeness we will briefly deal with the question of whether the proposal is consistent with the zone objectives. Zone objectives 38 Clause 9(3) of LEP 1996 imposes a barrier to the granting of consent unless the proposed development is consistent with the relevant objectives of the zone. The relevant objectives are: (d) to enable uses that are compatible with the rural use of the land, (e) to protect the landscape quality of the rural area,

The evidence - objective (d) 39 Town planning evidence was provided by Mr Jeff Williams for the council and Ms Clare Brown for the applicant. Mr Williams states that "the land" includes areas of both developed and undeveloped land. The undeveloped portion of the site and surrounding properties are used for a range of various rural uses, including rural residential purposes, agriculture and passive rural use or landscape. The expansion of the Park and new car parking areas are not considered to be of a rural nature and are not, as a result of the proposed scale and design, considered to be compatible with the rural use of the land within the vicinity. In particular, the proposed new car park introduces a significant amount of hard paving of approximately 4.1 ha with significant earthworks and landscaping. The extent of the proposed works cannot be considered to be rural or compatible with the rural use of the subject site or adjoining land. 40 Ms Brown states that the objective does not require the uses to be only of a rural character as the structure of the land use table provides for a range of innominate uses beyond just rural uses. The location of the proposed car park is within an area historically used for overflow parking and the sewer treatment and water storage dams will remain in place although they will be supplemented. In her opinion, the proposal will not be incompatible or adversely impact on the rural use of land in the immediate locality. While it will remove the opportunity to undertake a rural use on part of Lot 3, it is still possible for the remainder of Lot 3 to be used for rural purposes. Overall, the proposal is compatible with the rural uses in the broader locality and does not present a conflict with the rural use of land beyond the site.

Findings - - objective (d) 41 Clause 9(3) imposes a precondition to the Court exercising the power to grant consent to the proposed development. The clause requires that the development must be "consistent with the objectives of the zone". I have taken this to mean the relevant objectives of the zone. The Court has generally adopted "consistent with" as meaning not antipathetic, nor incompatible or inconsistent with (see Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 and Hospital Action Group Association Inc v Hastings Municipal Council (1993) 80 LGERA 190) although the ordinary and natural meaning has also been used by the Court (see Dem Gillespies v Warringah Council [2002] NSWLEC 224). 42 We have also taken the words "the land" in the objective to mean Lot 3. To accept Ms Brown's evidence the Court would have to find that the proposed activities on Lot 3 are consistent with the requirement that these uses are compatible with the rural use of the land. Ms Brown is correct in stating that there are a range of innominate uses, that include non-rural uses, that are permissible within the 1(a) zone. That, however is not the end of the argument. The fact that these uses are permissible does not guarantee that they would be compatible with the rural use of the land as this will depend on the particular characteristics of that use. For example, a "caravan park " is permissible within the 1(a) zone, however the size and extent of a caravan park would most likely be a critical determinant in whether a caravan park would be compatible with the rural use of the land (see Wygrien v Kiama Municipal Council and Anor [2008] NSWLEC 1233). 43 In this case, Lot 3 has an area of 20.49 ha and apart from some small improvements is undeveloped and appeared from the site view to be used for grazing purposes. The proposal will provide 4.1 ha of hard surface paving for car parking purposes together batters, cuts and landscaping. We do not accept that the form and size of this development could reasonably be seen as being compatible with the rural use of the land when compared to the existing use of the land by either the Schaffer Corporation test or the Dem Gillespies test. 44 On this basis the proposed development would be inconsistent with zone objective (d) and pursuant to cl 9(3) development consent could not be granted. The evidence - objective (e) 45 Mr Williams states that the qualities of the rural landscape in this area are characterised by a clear rolling pastures, valleys and creek lines, moderately vegetated ridges and spurs, up to the backdrop of the heavily vegetated and the dramatic Illawarra Escarpment to the west. In Mr Williams's opinion, the car park will be highly visible from adjoining properties, being the properties to the south and the east. The proposed works associated with the car park will change this rural landscape from the rolling pasture/grassland in the foreground with the escarpment in the distance to an engineered, albeit landscaped appearance, in the immediate foreground. For this reason Mr Williams concludes that the proposed development is inconsistent with objective (e). 46 Ms Brown states that the Park has limited visual vantage points external to the site. The Park has developed so it sits into the slope of the land and below the escarpment and does not impede views from the site or the broader locality to the escarpment or areas beyond the site. The proposal incorporates landscaping around the new car park and this landscaping at maturity will screen the proposal from external view and so protect the landscape quality of a rural area. While there will be an alteration of the views from adjoining properties, the partly grassed and partly vegetated paddock area adjacent will be replaced with a view of embankments to the car park which are to be suitably landscaped. Findings - objective (e) 47 On the question of whether the proposed development is consistent with objective (e), we accept the conclusions of Mr Williams. There was no dispute that the description of the rural landscape by Mr Williams was reflective of the landscape of the area. It was witnessed on the site view. The proposal, through the necessity to screen the large car park, will provide a different landscape to that which currently exists. While this in itself may not lead to a finding of inconsistency with the zone objectives, the change in the rural landscape from largely rolling hills and grassland to a landscape that requires considerable planting and cut and fill over a relatively large area, is in our view, inconsistent with the objective that seeks to protect the landscape quality of the rural area by either the Schaffer Corporation test or the Dem Gillespies test. 48 On this basis the proposed development would be inconsistent with zone objective (e) and pursuant to cl 9(3) development consent could not be granted. Orders 49 The orders of the Court are: 1. The appeal is dismissed. 2. DA10.2009.126.1 for the extension of an existing water park and associated activities known as " Jamberoo Action Park" at Jamberoo Road, Curramore is refused. 3. The exhibits are returned

      G T Brown
      Commissioner of the Court

      D Johnson
      Acting Commissioner of the Court

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