Griffani v Ballina Shire Council

Land and Environment Court (NSW)|2021-06-23|Before: Dr J

Solicitors: McCartney Young Lawyers (Applicants) Lindsay Taylor Lawyers (First Respondent) Swaab (Second and Third Respondents) File Number(s): 2020/65260 Publication restriction: No

Permissibility of the Proposed Development - what is the characterisation of the Proposed Development?

The remaining unresolved contention relates to a legal jurisdictional argument relating to the permissibility of the Proposed Development. The parties rely on a number of decisions. I will first consider the statutory framework and then consider the submissions of the parties including the decisions they rely on.

The Statutory framework

The BLEP provides a land use table specifying the development permitted without consent, with consent and what development is prohibited in a zone. Clause 2.3(3) re Land Use Table and "purpose": (3) In the Land Use Table at the end of this Part - (a) a reference to a type of building or other thing is a reference to development for the purposes of that type of building or other thing, and (b) a reference to a type of building or other thing does not include (despite any definition in this Plan) a reference to a type of building or other thing referred to separately in the Land Use Table in relation to the same zone.
The Site is located in zone RU1 Primary Production and the relevant extract from the BLEP land use table is as follows: Zone RU1 Primary Production 1 Objectives of zone • To encourage sustainable primary industry production by maintaining and enhancing the natural resource base. • To encourage diversity in primary industry enterprises and systems appropriate for the area. • To minimise the fragmentation and alienation of resource lands. • To minimise conflict between land uses within this zone and land uses within adjoining zones. • To maintain the rural, cultural and landscape character of the locality. • To enable development that is compatible with the rural and environmental nature of the land. • To ensure that there is not unreasonable or uneconomic demands for the provision of public infrastructure. 2 Permitted without consent Environmental protection works; Extensive agriculture; Home-based child care; Home occupations; Intensive plant agriculture 3 Permitted with consent Airstrips; Animal boarding or training establishments; Aquaculture; Boat launching ramps; Boat sheds; Car parks; Cellar door premises; Cemeteries; Dual occupancies; Dwelling houses; Environmental facilities; Extractive industries; Farm buildings; Flood mitigation works; Forestry; Helipads; Home businesses; Home industries; Home occupations (sex services); Information and education facilities; Intensive livestock agriculture; Jetties; Markets; Mooring pens; Moorings; Open cut mining; Recreation areas; Recreation facilities (outdoor); Roads; Roadside stalls; Rural industries; Rural supplies; Rural workers' dwellings; Sewerage systems; Signage; Tourist and visitor accommodation; Turf farming; Water recreation structures; Water supply systems (emphasis added) 4 Prohibited Advertising structures; Backpackers' accommodation; Hotel or motel accommodation; Serviced apartments; Any other development not specified in item 2 or 3 (emphasis added)
The BLEP Dictionary list is not exhaustive and includes two prohibited developments namely Hotel or motel accommodation and Serviced Apartments. tourist and visitor accommodation means a building or place that provides temporary or short-term accommodation on a commercial basis, and includes any of the following - (a) backpackers' accommodation, (b) bed and breakfast accommodation, (c) farm stay accommodation, (d) hotel or motel accommodation, (e) serviced apartments, but does not include - (f) camping grounds, or (g) caravan parks, or (h) eco-tourist facilities.
Further controls are found in cl 7.9 of the BLEP for rural tourism development requiring the tourism development in the RU1 and RU2 zones to be small scale as a jurisdictional prerequisite and I reproduce this clause in full as follows: 7.9 Rural and nature-based tourism development (1) The objective of this clause is to ensure that services and facilities provided for tourists in rural and natural areas do not adversely impact on the agricultural production, scenic or environmental values of the land. (2) This clause applies to land in the following zones - (a) Zone RU1 Primary Production, (b) Zone RU2 Rural Landscape. (3) Development consent must not be granted to tourism development on land to which this clause applies unless the consent authority is satisfied that - (a) there is, or will be, adequate vehicular access to and from a road, other than a classified road, taking into account the scale of the development proposed, and (b) the development is small scale and low impact, and (c) the development is complementary to the rural or environmental attributes of the land and its surrounds, and (d) the development will not have a significant adverse impact on agricultural production, amenity or significant features of the natural environment. (4) Development consent must not be granted to development for the purpose of tourist and visitor accommodation on a lot that is land to which this clause applies unless - (a) a lawfully erected dwelling house or dual occupancy (attached) is situated on the lot, or (b) a dwelling house may be erected on the lot under this Plan. (5) Development consent must not be granted to development under subclause (4) if the development - (a) includes an ancillary caretaker's or manager's residence, or (b) is for the purpose of more than 1 bed and breakfast accommodation. (6) In this clause - small scale means a scale that corresponds to that of residential uses in a rural or environmental locality. tourism development means development for any of the following purposes - (a) caravan parks, (b) cellar door premises, (c) charter and tourism boating facilities, (d) home industries that provide services, or the sale of goods, on site to visitors, (e) information and education facilities, (f) kiosks, (g) markets, (h) recreation facilities (major), (i) recreation facilities (outdoor), (j) rural industries that provide services, or the sale of goods, on site to visitors, (k) tourist and visitor accommodation.
The Second and Third Respondents submit that the Proposed Development is Hotel or motel accommodation and/or serviced apartments which are in fact prohibited. These are defined terms as follows: hotel or motel accommodation means a building or place (whether or not licensed premises under the Liquor Act 2007) that provides temporary or short-term accommodation on a commercial basis and that - (a) comprises rooms or self-contained suites, and (b) may provide meals to guests or the general public and facilities for the parking of guests' vehicles, but does not include backpackers' accommodation, a boarding house, bed and breakfast accommodation or farm stay accommodation. Note - Hotel or motel accommodation is a type of tourist and visitor accommodation - see the definition of that term in this Dictionary. […] serviced apartment means a building (or part of a building) providing self-contained accommodation to tourists or visitors on a commercial basis and that is regularly serviced or cleaned by the owner or manager of the building or part of the building or the owner's or manager's agents. Note - Serviced apartments are a type of tourist and visitor accommodation - see the definition of that term in this Dictionary.

Role of the DCP

The BDCP is a mandatory consideration in accordance with s 4.15(1)(a)(iii) of the EPA Act and the Applicant submits that a provision of the BDCP directly pertinent to this Proposed Development is entitled to significant weight in the decision making process but it is not itself determinative (Zhang v Canterbury City Council 51 NSWLR 589; [2001] NSWCA 167 Spigelman CJ at [75]).
I accept that the statutory framework for the evaluation of a development application includes consideration of the relevant development control plan (s 4.15(1)(a)(iii) EPA Act). As identified in clause 1.5 of the BDCP the "DCP contains detailed provisions that supplement the provisions" of the BLEP. The BDCP contains a chapter dedicated to rural properties and is titled "Chapter 7 Rural Living and Activity". At section 3.3 Rural Tourist and Visitor Accommodation applies to RU1 zone and the development type 'tourist and visitor accommodation (except caravan parks and camping grounds)'. The BDCP planning objectives of rural tourist and visitor accommodation are set out in clause 3.3.2 as follows: "3.3.2 Planning Objectives a. Provide for the establishment and operation of diverse small scale tourist and visitor accommodation within rural and environmental protection zones within Ballina Shire; b. Ensure that facilities are designed and constructed so as to maintain rural character and amenity, productive agricultural use of land and environmental values; c. Encourage visitor interaction with the rural and natural environment; d. Ensure the provision of a satisfactory level of service to guests and that such premises meet acceptable access, community health and fire safety standards; and e. Encourage environmental repair, restoration and management activities in conjunction with rural tourist development."
The BDCP Development Controls are set out in clause 3.3.3 and at clause 3.3.3(i) provides that tourist and visitor accommodation must be small scale which is further explained in the "Notes" as follows: "Small scale tourist and visitor accommodation is development that is predominantly residential in character and scale and that does not consist of larger commercial activities such as boarding houses, backpackers accommodation or hotel or motel accommodation."
At the BDCP Development Control provided for in clause 3.3.3(vi), such small scale tourist and visitor facilities are subject to configuration and design requirements as follows: "Clustering of buildings within the area established by the radius specified in Table 3.1 (unless it can be demonstrated that a dispersed arrangement provides for a more efficient use of the site and does not adversely impact on the use of productive agricultural land or the environmental characteristics of the land, both on site and off site); Utilisation of a single access point from the public road network to service both the accommodation and residential use of the site; Total internal floor area not exceeding 75m² per accommodation unit; Maximum of 2 bedrooms and 1 kitchenette per accommodation unit; and Provision of at least one defined car parking space per accommodation unit.
The BDCP provides the following definition for the purpose of the 'tourist and visitor accommodation' development controls: "Accommodation unit means a single room (or suite of rooms) cabin, cottage, or similar building of residential character for use as temporary accommodation. It does not include large commercial uses such as boarding houses, backpackers' accommodation, hostels or hotel or motel accommodation."

Characterisation cases:

There are a number of decisions relied on by the parties regarding the characterisation of the purpose of the development. I find it useful in the context of the contest between the Applicant and the Second and Third Respondents, to set out the relevant cases and the principles or propositions relied on by the parties and I then refer back to them in my findings and conclusion below in the judgment. I now list the relevant decisions and include the extract of the proposition for each decision. 1. Botany Bay City Council v Pet Carriers International Pty Limited (2013) 201 LGERA 116; [2013] NSWLEC 147 (Pet Carriers) decision of Preston CJ: "24 Planning law turns on the characterisation of the purpose of development of land. The threefold classification in the EPA Act and environmental planning instruments made under it in regard to the carrying out of development depends on the characterisation of the purpose of the development. The threefold classification is of development that may be carried out without development consent, development that may be carried out with development consent, and development that is prohibited or cannot be carried out with or without development consent 25 The purpose of a development is objective in the sense that it is the end which is seen to be served by the carrying out of the development, not subjective in the sense that it is the object in the minds of the persons carrying out the development … 28 difficult questions of construction and characterisation can arise when the environmental planning instrument permits one purpose but prohibits the other. It may be necessary to ascertain, having regard to the character, extent and other features of the uses, whether the prohibited purpose can be regarded as subsumed in the permissible purpose, so that it is legitimate to disregard the prohibited purpose and treat the permissible purpose as that for which the land is used, or whether they are independent of each other so that the lad is being used for both prohibited and permissible purposes. … 54 Each case turns on the terms of its own facts and the relevant environmental planning instrument and land use table." 1. Ardill Payne & Partners v Byron Shire Council [2019] NSWLEC 1125 (Ardill Payne), decision of Commissioner Wash: "[24] While it is sometimes appropriate to go to the specifics in characterisation (eg the "servicing" aspect of serviced apartments is critical in distinguishing it from other forms of accommodation in some urban zones), it is not necessary or appropriate in this case to go beyond Mr Young's argument that this aspect of the development is better characterised as "tourist and visitor accommodation" and as "a building or place that provides temporary or short-term accommodation on a commercial basis". I am not convinced, factually, that these intended "cabins" meet the "hotel or motel accommodation" definition. I am not convinced that they contain what would be my interpretation of the phrase "rooms or self-contained suites" as included in the definition. Equally I cannot consider this aspect of the development as a "serviced apartment" according to the definition, as for me the "regularly serviced or cleaned by the owner or manager of the building" aspect implies a regularity (eg every day or every few days) which rings true for serviced apartments but does not seem a "necessary" feature of this particular use (while I agree with Mr Seton that such particulars are not available, cleaning might reasonably be thought to occur at the end of the stay, something different to "regularly"). It is "sufficient" to characterise the purpose of this aspect of the development as "tourist and visitor accommodation", a permissible use." 1. Woolworths Ltd v Pallas Newco PTY LTD & ANOR (2004) 61 NSWLR 707; [2004] NSWCA 422 revised - 29/03/2005 (Pallas Newco) "[62] In the present case, the determination of whether a proposed development is a "drive-in take-away establishment" raises questions of fact and degree but not of such a character as to suggest that Parliament intended that such a characterisation should turn on the opinion of the consent authority. This may be an issue on which reasonable minds may differ, but there is nothing to suggest that the decision requires any particular expertise or local knowledge, let alone that it turns in any way on contestable value judgments. It is a conclusion about which an independent non-expert impartial observer could make an assessment as to whether it is right or wrong. It is not the kind of test which, by its very nature, is unlikely to be jurisdictional." 1. The issue or question in the Pallas Newco decision was whether the characterisation of the development was a liquor shop as opposed to a drive in takeaway establishment. Here, in relation to the Proposed Development, the question might be asked whether there is a dominance of hotel/motel over what is stated in the development application, namely 'tourist and visitor accommodation'. Physically, the Proposed Development comprises 8 individual, separate cabins and the addendum to the SEE (Exhibit E) states at 1.1.2 that "[t]his proposal for tourist and visitor accommodation cabins does not seek approval for a farm stay, serviced apartment, or hotel or motel accommodation development as defined by the Ballina Local Environmental Plan 2012". The Second and Third Respondent submit that "simply writing a line in an addendum to a SEE doesn't solve the problem of how you characterise the development." (Transcript 24 June 2021 page 132 at 15) 2. Sherman v Newcastle City Council [2019] NSWLEC 1238 (Sherman) decision of Commissioner Dickson, at [56] - [57]: "56 In his decision in 'Pet Carriers', Preston CJ states that the ultimate focus of an inquiry as to the characterisation of land should be whether a development is within a nominate or innominate purpose under the relevant instrument. 57 Applying the preceding framework, I am satisfied that the development sought falls within the broad definition of 'tourist and visitor accommodation', a nominate permissible use. 58 Having made this determination, I have turned my mind to whether the purpose of the use sought in the development application is appropriately characterised as a serviced apartment and therefore falls within the nominated prohibited use. I am satisfied it does not. My reasoning is as follows: (1) I accept the arguments of Mr Pickles (refer par [38]) that the use 'serviced apartment' denotes a regularity of servicing (of which cleaning is one such service) that is not present in the current application. (2) Notwithstanding if the draft POM, or the final POM, is considered I am not persuaded that the placing of waste bins out for collection by the owner is reasonably regarded as regular servicing. (3) Cleaning and servicing of the premises at the beginning and end of a hire period are a feature, or characteristic, of each of the remaining subset terms under the definition of tourist and visitor accommodation. Therefore in my view this is not a characteristic that distinguishes serviced apartments. (4) I am satisfied that giving the ordinary meaning to the term, 'serviced apartment' denotes the provision of some services to the occupant, beyond the provision of accommodation. I am not persuaded that the application proposes such additional services (such as changing sheets, towels and provision of daily or on request cleaning). This position is reinforced by the Macquarie Dictionary definition of 'serviced apartment' which states: serviced apartment /sɜvəst əˈpatmənt/ (say servuhst 'uhpahtmuhnt) noun an apartment which is rented for short or long stays, in which basic housekeeping services are provided. https://www.macquariedictionary.com.au (5) I am satisfied that the use sought provides facilities and services more akin to self-contained accommodation. 59 I accept the agreed position of the parties that the nominated forms of 'tourist and visitor accommodation' found in the definition are not exhaustive. I find that the use proposed is encompassed by the group term and does not fall within any of the listed subset terms." 1. Houghton v Shoalhaven City Council [2016] NSWLEC 1195 (Houghton) decision of Morris C, at [20] and then [66]: "20 It is common ground that the proposed tourist cabin would fall within the definition of tourist and visitor accommodation as it provides temporary or short-term accommodation on a commercial basis and is permissible with consent in the E3 zone. It is also agreed that the tourist cabin is not hotel or motel accommodation or a serviced apartment. … 66 Whilst not a contention in the case, the issue of permissibility was raised by resident objectors. In accordance with the provisions of clause 2.3(3) of the LEP and the definitions in the Dictionary to that plan, I am satisfied that the development of the tourist cabin would fall within the definition of tourist and visitor accommodation and would not be hotel or motel accommodation or a serviced apartment. The types of development listed in the definition of tourist and visitor accommodation is not exhaustive and therefore can include other like uses. I am therefore satisfied that the proposed cabin would be a use that is permissible in the E3 zone. 67 This fact is further reinforced in the DCP with a definition of tourist cabin included in the Dictionary to that plan. That definition is as follows: Tourist cabin means a freestanding building used to provide short-term self-contained holiday accommodation. Note: Tourist cabin is a type of tourist and visitor accommodation as defined in Shoalhaven Local Environmental Plan 2014."
The Applicant submits that the Court would follow the decisions of Sherman, Ardill Payne and Houghton in circumstances where they are correctly decided and the Second and Third Respondent have not demonstrated that they are "plainly wrong" and to support this proposition the Applicant relies on Challenger Listed Investments v Valuer General (No 2) [2015] NSWLEC 60 Decision of Pepper J, at [28]-[31]: "28. From the outset it is important to correct a misconception held by Challenger, as evidenced by both the correspondence set out above, and statements made by Challenger's counsel in the hearing before me (T11.50). That is, that decisions of commissioners in this Court carry less weight than decisions of judges of this Court, or that the principles of comity do not apply in respect of judges following commissioners' decisions. 29 This proposition must be emphatically rejected. As was stated by Dixon C in Mac Services Group v Mid-Western Regional Council [2014] NSWLEC 1072 (at [52]-[61]): 52. Before I deal further with the contentions it is necessary to deal with the parties' submissions that I am "bound" or "obliged" to follow the decision of the Court in Maygood (2) to consider the provisions of the LEP 2012 in these proceedings under s 79C. 53. Ultimately, that submission is not fundamental to my determination as I do intend to give appropriate consideration to the new instrument. However, for reasons I will shortly explain I do not accept that I am bound or obliged by the Maygood (2) decision as a matter of principle, although I would, of course, pay due deference to that decision in accordance with the usual principles of comity. 54. The fundamental flaw with the submission is that it imports into the Land and Environment Court Act 1979 (the Act) a hierarchy of decision makers. In fact, the Act does not establish a hierarchy such that as a general proposition the Commissioners' are bound by the determination of a single judge sitting in the same class of proceedings (unless on a preliminary question in the same matter). Both exercise the jurisdiction of the Court when determining (relevantly) a Class 1 appeal. 55. Obviously, in the case of appeal under s 56A, the Commissioner determining the matter from which the appeal is brought is bound by the decision of the Judge hearing the appeal on remitter unless the Judge otherwise disposes of the appeal under s 56A(2). 56. The absence of any hierarchy of the kind to put an obligation on Commissioners generally to follow decisions of Judges emerges from a consideration of the legislation. Section 6 (1) provides: Single Judge to constitute the Court (1) All proceedings in the Court, and all business arising out of any such proceedings, shall, subject to this Act, be heard and disposed of before a Judge, who shall constitute the Court. (2) Subsection (1) does not affect the provisions of this Act and the rules concerning the hearing and disposal of proceedings and business before one or more Commissioners or other officers of the Court. 57. These are functions to be exercised in the name of the Court by either Judge or Commissioner. 58. Section 36(2) provides: Delegation to Commissioners (1) Where proceedings are pending in Class 1, 2 or 3 of the Court's jurisdiction (other than proceedings that are being dealt with under section 34A or 40), the Chief Judge: (a) except as provided by paragraph (b) or subsection (1B), may, of the Chief Judge's own motion or on the request of a party, direct that the proceedings be heard and disposed of by one or more Commissioners, and (b) shall, where the proceedings are proceedings: (i) arising under the Aboriginal Land Rights Act 1983 , and (ii) of a kind specified in Schedule 2, direct that the proceedings be heard and disposed of by a Commissioner. (1A) The Governor may, by regulation, amend Schedule 2 by: (a) adding thereto any matter, (b) altering any matter therein, or (c) omitting any matter therefrom, or may, by regulation, omit the Schedule and insert instead a new Schedule. (1B) The Chief Judge may not direct under this section that proceedings under section 29, 30 or 31 of the Access to Neighbouring Land Act 2000 are to be heard and disposed of by one or more Commissioners. (2) Subject to this Act and the rules, the Commissioner or Commissioners hearing and disposing of the proceedings pursuant to this section shall have and may exercise the functions of the Court (other than its functions under this section). (3) The decision of the Commissioner or Commissioners shall be deemed to be the decision of the Court. (4) Where proceedings are directed to be heard and disposed of by 2 or more Commissioners: (a) if the Senior Commissioner is one of the Commissioners hearing and disposing of the proceedings-the Senior Commissioner shall preside at the hearing of the proceedings, (b) if the Senior Commissioner is not one of those Commissioners-one of those Commissioners directed to do so by the Chief Judge shall preside at the hearing, and (c) if the Commissioners are divided in opinion as to the decision to be made on any question: (i) if there is a majority of the one opinion-the question shall be decided according to the opinion of the majority, or (ii) in any other case-the question shall be decided according to the opinion of the Commissioner presiding. (5) Proceedings that are before a Commissioner under section 34, or under this section, may be referred or removed for hearing and determination by a Judge in the same way as proceedings before an associate Judge may be referred or removed for hearing and determination by a Judge in the Supreme Court. (6) The power of a Commissioner to refer proceedings pursuant to subsection (5) is subject to any contrary order of the Chief Judge. 59. Where proceedings are pending in Class 1, 2 or 3 of the Court's jurisdiction the Chief Judge can direct that the proceedings be heard and disposed of by one or more Commissioners: s 36(1)(a). 60. The decision of the Commissioner is deemed to be a decision of the Court: s 36(3). 61. Having regard to the above provisions, there is no hierarchy under the Act which supports the proposition that a Commissioner is bound to follow the decision for a single judge in respect of an appeal under s 56A of the Act unless it is that matter on remitter (as noted earlier). 30 I respectfully endorse the Commissioner's reasoning. Statements made by me to the contrary in Maygood Australia Pty Ltd v Willoughby City Council (No 2) [2013] NSWLEC 142 (at [21]) are wrong and ought not be followed. 31 I would only refine the Commissioner's reasoning in Mac Services (at [65]-[67]) by noting that although a commissioner is not, as a matter of precedent, bound to follow a decision of a single instance judge of this Court, he or she should do so as a matter of comity unless in the opinion of the commissioner the judgment is plainly wrong (for a discussion of the scope and application of that test see Fullerton Cove Residents Action Group v Dart Energy Ltd (No 2) [2013] NSWLEC 38; (2013) 195 LGERA 229 at [278]-[284]). But if, in the opinion of the commissioner the judgment is plainly wrong, then the commissioner is entitled to depart from it and no error will result in doing so."
In Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 at [407], applying Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGERA 305 at [310], Preston J held 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". Further at [408] His Honour finds that the task of characterisation of a proposed development must also be done in a "common sense and practical way".
In the decision of Jagot J in Matic v Mid-Western Regional Council [2008] NSWLEC 113 at [7] - [9] Jagot J states as follows: "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). 8 Legislative intent, however, is not to be discerned by reference to pre-conceived ideas or vague notions of what might or might not be desirable. Intent is to be objectively determined. It is manifested "by the use of language" in the document to be construed (Wilson v Anderson and Others (2002) 213 CLR 401 at [8]). Accordingly: …it is through the meaning of the text, understood in the light of background, purpose and object, and surrounding circumstances, that the legislature expresses its intention, and it is from the text, read in that light, that intention is inferred ( Singh v The Commonwealth and Another (2004) 222 CLR 322 at [19]). 9 These requirements have particular significance for the construction of environmental planning instruments. The planning purpose of an environmental planning instrument is to be determined by reference to the language of the instrument considered in context. There is no room for "some preconceived general notion of what constitutes planning" (Western Australian Planning Commission v Temwood Holdings Pty Limited (2004) 221 CLR 30 at [56] citing Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 123 CLR 490 at 500). Further, and as noted in Calleja v Botany Bay City Council (2005) 142 LGERA 104 at [25] "any attempt to always find planning logic in planning instruments is generally a barren exercise"."
Finally, in Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379 (Tovir), a decision of Basten JA, Macfarlan JA and Leeming JA: "54 Thirdly, it will be seen that the definitions used in the LEP are used less than precisely. As Basten JA's reasons amply demonstrate, it is not possible, in accordance with the process described by McHugh J in Kelly v The Queen [2004] HCA 12; 218 CLR 216 at [103], to transcribe the defined term into "backpackers accommodation"; some flexibility has to be given to the words used, in order to make sense of them. Where the drafter has been less than fastidiously precise in his or her choice of language, only limited weight may be given to relatively minor features such as those to which the appellants point. This consideration applies to contracts: see Mainteck Services Pty Ltd v Stein Heurtey SA [2014] NSWCA 184; 310 ALR 113 at [98]. It applies to legislative instruments as well, for it derives from the care with which language is used. Indeed, it has been said that it has particular application to subordinate legislation. Lord Reid said in Gill v Donald Humberstone & Co Ltd [1963] 3 All ER 180 at 183 that the regulations in that appeal "ought to be construed in the light of practical considerations, rather than by a meticulous comparison of the language of their various provisions, such as might be appropriate in construing sections of an Act of Parliament". Decisions applying that reasoning may be found in Marina Bay Developments Pty Ltd v Pittwater Council [2007] NSWLEC 41."

Submissions and Findings

The Applicant and the Second and Third Respondent provided the court with written outline of submissions and all parties made oral closing submissions. The Council adopts the submissions of the Applicant.
The parties agree and I find that the test for characterising the purpose of the Proposed Development is an objective test based on the application itself (Pet Carriers at [25]).
The Second and Third Respondent submit that the Proposed Development is a "Hotel or motel accommodation" and/or "Serviced apartments" which are in fact prohibited. I agree with and accept the Second and Third Respondent's proposition that if the Proposed Development were to be characterised as a hotel or motel accommodation or as serviced apartments the result would be that the Proposed Development is prohibited (transcript page 132) and accordingly, that as a consequence, the Court would have no power to grant consent to development for the purposes of serviced apartments or hotel or motel accommodation. (written subs par 5 and 6).
As to the Second and Third Respondent's contention that the Proposed Development is prohibited because is properly categorised as "serviced apartments" which is a prohibited use, the Court does not rely solely on the description of the development for which consent is sought by the Applicant but also on the evidence contained in the supporting documents including the Addendum SEE (Exhibit E) and the OMP (Exhibit G) as described below.
The facilities provided to guests is detailed in these documents, and these documents will form part of the consent, and they expressly exclude provision of any cleaning or other servicing during their stay. The Addendum SEE details the facilities provided to guests at page 2 as follows: "Each cabin will have a clothes' washing machine and portable clothes drying rack facilities for guest use. Each cabin is equipped with a kitchenette, cooking facilities and eating utensils. If guests use the kitchenette, there are wash-up and cleaning facilities provided for the use of the guests to clean up after the meal. The cabins also contain basic cleaning facilities for guest use. The cabins are not serviced during the guests stay. That is, beds will not be made, rooms will not be cleaned or 'straightened up' or towels replaced whilst guest are staying in the cabin. Bed linen will only be changed by the applicant at the conclusion of the guests stay, with linen collected by a commercial firm supplying linen services to the proponent."
The OMP then unequivocally provides at clause 2.C(h) as follows: "Guests are required to clean and service their own cabin throughout the duration of their stay."
I accept the Applicant's submission that the second part of the definition of "serviced apartment" requires regular servicing or cleaning of the building or part of the building and that the Proposed Development does not satisfy the definition because the term of the definition connotes both a degree of regularity and a degree of service (Sherman at [58]). The cleaning or servicing is not regular in that the sheets only get changed and the cabin only gets cleaned, at the end of the stay. If guests stay for a week they do not benefit from any daily cleaning or service. I find that there is no regularity of servicing or cleaning. In relation to the degree of service, I conclude that the guests do not get any service because guests are required to clean and service their own cabin throughout the duration of their stay.
The Second and Third Respondents did refer the court to the decision of Preston CJ in Tweed Shire Council v Taylor [2019] NSWLEC 45 (Tweed) which was a matter in the Class 4 jurisdiction of the Court dealing with a summons seeking orders to demolish an illegally constructed tree house being used as a serviced apartment. In that matter, there was no contest between the parties as to the categorisation of the unauthorised development as a serviced apartment and I note Preston CJ accepted and adopted the Council's submission that development consent cannot be granted for prohibited development (at para [22] and found that the Respondent was unlikely to be able to remedy the breaches of the EPA Act by regularising the unlawful erection and use of the building for a number of reasons including at para [74] that the building cannot be used lawfully for the purpose of a serviced apartment for which it was constructed and that there was no evidence that the building could be used for a purpose permissible with development consent in the applicable zone (para [75]). The facts and evidence in these proceedings are sufficiently different in order to distinguish it from the decision in Tweed. Some of the differences include the following: 1. The Proposed Development seeks development consent on land owned by the Applicant and has owners consent; 2. The Proposed Development does not seek development consent for service apartments; 3. There is evidence that the Proposed Development will be used for a permitted purpose in the RU1 zone, namely tourist and visitor accommodation; 4. The Proposed Development will comply with the relevant planning controls and there are no outstanding merit concerns.
I do not agree that the Court has undergone the task of rewriting the instrument nor of rewriting the definition of "hotel or motel accommodation" or the definition of "serviced apartments" in reaching my conclusion that the Proposed Development is a type of tourist and visitor accommodation that is not a hotel or motel accommodation and is not serviced apartments (Wingecarribee Shire Council v De Angelis [2016] NSWCA 189, Basten JA at [20]). My reasons follow below.
In relation to the reliance on the Standard Instrument I do not accept the Second and Third Respondents submission that the definition of "Hotel or motel accommodation" is 'quite precise and specific' and I reject the argument that this matter does not attract the principle in Tovir, notwithstanding that I accept that the Tovir principle does not result in a general principle requiring laxity or flexibility in construing delegated legislation, or statutory instruments generally (4nature Incorporated v Centennial Springvale Pty Ltd (2017) 95 NSWLR 361; [2017] NSWCA 191 Basten JA (Beazley JA and Leeming JA agreeing) at [45]).
I agree with and adopt the submission of the Applicant at 33 of written submissions that on the Second and Respondent's rigid construction, each cabin (accommodation unit) would have to be characterised as an individual "hotel or motel" which would clearly not make sense to the words employed or provide for a practical consideration of the BLEP definition.
There is nothing common sense in the interpretation of the definition of hotel or motel accommodation by the Second and Third Respondents and I accept the Applicant's submission at 36 that "if their construction were correct, any building which had a "room" and was used for short term accommodation on a commercial basis would be a "hotel or motel", which would virtually result in all tourist and visitor accommodation - even cabins or caravans in a caravan park and services apartments - being characterised as "hotel or motels". In the circumstances where the first part of the definition of 'hotel or motel accommodation' is otherwise identical to the definition of 'tourist or visitor accommodation' and where the second part of the definition of 'hotel or motel accommodation of comprising of a room or rooms begs the question asked by the Applicant in closing submissions of what type of tourist and visitor accommodation does not have a room? (Transcript 23 June 2021 page 116 at 24). I accept the Applicant's submission that the definition of 'hotel or motel accommodation' in the circumstances of these proceedings ought to be construed in light of a practical considerations, rather than by a meticulous comparison of the language of their various provisions, such as might be appropriate in construing sections of an Act of Parliament" (Tovir at [54]).
I am satisfied and find, as agreed by the parties, that the definition of 'tourist and visitor accommodation' in the BLEP is not an exhaustive list and I find further that if I were to apply the Second and Third Respondent's interpretation of 'hotel or motel' the definition of 'tourist and visitor accommodation' would have no work to do because all 'tourist and visitor accommodation' would have a room. I do not accept that the Proposed Development consisting of eight holiday cabins is a 'hotel or motel accommodation' for the reason that to so find would result in an absurd or irrational construction of the BLEP which should be avoided (Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26 at 304; New South Wales Crime Commissioner v Kelly [2003] NSWCA 245; (2003) 58 NSWLR 71 at [20] and Capital Airport Group Pty Ltd v Director-General of the Department of Planning (2010) 171 LGERA 440; [2010] NSWLEC 5 at [23]-[24]).
Clause 7.9 of the BLEP provides for tourism development on RU1 zone land and stipulates the objective is to ensure that services and facilities provided for tourists in rural and natural areas do not adversely impact on the agricultural production, scenic or environmental values of the land and expressly requires that the tourism development be small scale. The BDCP Chapter 7 Rural Living and Activity, Section 3.3 Rural Tourist and Visitor Accommodation including the controls in clause 3.3.2 and clause 3.3.3 are wholly consistent with and pursuant to cl 7.9 of the BLEP which defines tourism development and is reproduced above at par [17] and is further considered below in "jurisdictional prerequisites".
The BDCP very specifically provides for objectives and controls in relation to and limited to "small scale tourist and visitor accommodation" on RU1 zone land and is directly pertinent to the Proposed Development. I am required to give the relevant provisions of the BDCP significant weight in my decision-making process notwithstanding that the provisions are not determinative of my decision. The BDCP provisions in clauses 3.3.2 and 3.3.3 assist in providing objectives and controls around a type of tourist and visitor accommodation, namely small scale tourist and visitor accommodation and is entirely consistent with the BLEP Land Use Table for RU1 zone land and which also expressly excludes "hotel or motel accommodation". These objectives and controls in the BDCP are not subjective considerations as referred to by the Second and Third Respondent (written submissions at 27) as they provide quite specific and objective criteria to a type of tourist and visitor accommodation that expressly excludes hotel or motel accommodation which is identified as being one of a number of types of other larger commercial tourist and visitor accommodation activities.
The Proposed Development complies with the specific and objective controls in the BDCP for small scale tourist and visitor accommodation on RU1 land which is evident in the design and layout of the holiday cabin clustering, the Addendum SEE and in the terms of the POM.
I am not satisfied that there is a 'dominance' argument applicable in this instance where one might argue that the hotel motel accommodation dominates over the 'tourist and visitor accommodation' (Transcript page 132). Unlike the situation in Pallas Newco, the similarity or conflict between a "Liquor shop" and a "drive-in takeaway establishment" is not analogous to the Proposed Development where the plans and the conditions do not disclose any inconsistency with the consent sought to disclose any so called 'dominance' of purpose.

Findings on permissibility

On the facts, I agree with the Applicant's written submission at para 45, that there can be no doubt that the proposed cabins are an 'accommodation unit' or small scale tourism development as specifically considered by cl 7.9 of the BLEP and chapter 7 of the BDCP, to be included as a type and form of development captured by the non-exhaustive definition of 'tourist and visitor accommodation' in the BLEP. I find that the use proposed by the Proposed Development is encompassed by the group term and does not fall within any of the listed subset terms, including the prohibited subset terms.
I conclude that for the reasons set out in this judgment the Proposed Development is for tourist and visitor accommodation and is permissible with consent.

Jurisdictional prerequisites - Exhibit B - Applicant's submission on jurisdiction and supporting documents (Transcript 23 June 2021 page 93)

A number of matters raised by objector submissions and other jurisdictional prerequisites are addressed by the Applicant in a note on jurisdictional matters that arise under the relevant legislation and contained in Exhibit B. I will briefly consider these below and I note that there is no dispute between the parties with regard to these jurisdictional prerequisites.
During the proceedings the Applicant tendered statutory declarations by Rinaldo Giovanni Griffani and Maria Luigia Griffani declared on 23 June 2021 (Exhibits H and J) and I am satisfied that the Applicants are the owners of the Site and have provided the requisite owner's consent to the application for the Proposed Development.
Clause 7.9 of the BLEP deals with rural and nature-based tourism development and applies to land in the zone RU1. The jurisdictional prerequisites are contained in subcll 7.9(3) and 7.9(4). The provisions of cl 7.9 are addressed in the SEE at page 29 and in a letter from the Applicant's consultant planner, Damien Chapelle to the Council dated 21 June 2019 providing additional information including addressing the aspect of the tourist accommodation being small scale under the terms of cl 7.9 of the BLEP and expressly references Chapter 7 of the BDCP. I am satisfied that the matters in cl 7.9 have been adequately and appropriately addressed.
The Court is required to be satisfied that the Proposed Development is supplied with adequate and appropriate levels of infrastructure servicing including the disposal and management of sewerage (cl 7.7, BLEP). I have referred to Council's assessment in relation to onsite sewerage management (Exhibit A, Tab 8) and the On-site Wastewater Management Assessment prepared by Greg Alderson dated November 2018 (Wastewater Assessment) (Exhibit A, Tab 3) and note the inclusion of the Wastewater Assessment in the Proposed/Draft Conditions of Consent filed 23 June 2021 (Exhibit 2R2).
The Second and Third Respondent raised a new contention on day 2 of the hearing that the Court would not be satisfied that there is sufficient water to supply a washing machine in each cabin and therefore the Court cannot be satisfied that the essential services clause 7.7 in the BLEP is satisfied (Transcript 23 June 2021, page 94 at 1). The Applicant addressed this new contention by referring the Court to the BASIX certificates (Transcript 23 June 2021 page 98) claiming that the new contention is a 'red herring' in the context of there being sufficient water supply for the washing machines and where the Wastewater Assessment had made a calculation of wastewater for the 8 cabins of 2880 litres per day incorporating a 23% reduction or discount on the basis of the lack of laundry facilities. The calculated waste water disposal area documented on page 16 is 778m2 and the Court is satisfied that there are in fact two dedicated areas of 778m2 depicted on the "Proposed Wastewater Management Layout" plan annexed to the On-site Wastewater Management Assessment Report with each area labelled as follows: "8 cabins subsurface irrigation 778m2" and "8 cabin reserve area subsurface irrigation 778m2". I am satisfied that on the evidence before the Court this contention is resolved in that there is sufficient water supply for the washing machines in each cabin and there is adequate provision of the resulting total wastewater. I conclude for these reasons that I am satisfied that cl 7.7 is adequately addressed. I am satisfied that development can be granted because the services that are essential for the development are available or that adequate arrangements have been made to make them available including but not limited to the disposal and management of sewerage.
The Applicant addressed the concern raised by objectors regarding the maximum building height pursuant to the BLEP and refers the Court to the height calculations contained in Exhibit A, Tab 6 demonstrating the Proposed Development is under the height control and this document is included in the conditions of consent.
The Proposed Development is a BASIX affected development, namely a BASIX affected building being a building that contains one or more dwellings, but does not include a hotel or a motel. I am satisfied that the BASIX certificates tendered by the Applicant do an assessment based on one bedroom for each cabin and that the Proposed Development aligns with the BASIX Certificate (Transcript 23 June 2021 page 94 at 3 and 9).

Conclusions

There are no merit matters in dispute between the parties and the jurisdictional prerequisites have been satisfactorily addressed above. Accordingly, it is appropriate that the appeal be upheld and that consent be granted to the Proposed Development subject to conditions.
Exhibit 2R2 comprises the Proposed/Draft Conditions of Consent as agreed between the parties. The document contains track changes and I make the following findings as to the final wording of the conditions of consent: 1. On the third day of the hearing the Second and Third Respondent advised the court that Condition 3(b) was no longer pressed and the parties consented to its deletion from Exhibit 2R2 (transcript 24 June 2021 page 128 at 1 - 20); 2. The Applicant made submissions in relation to condition 138 and the additional wording sought by the Second and Third Respondents "The communal building is not to be used after 6pm" to the effect that firstly, the additional wording is not necessary and the Court can be satisfied by the terms of the OMP which extensively provides for the use of the communal building by guests including the hours of operation stipulating that the communal building is available for use by guests only and will be operational between the hours of 7am to 6pm Monday to Saturday and 8am - 6pm Sundays and public holidays. In the alternative, the Applicant had agreed to the additional words provided the words 'by guests' were inserted after the word 'used' and before the words 'after 6pm'. I conclude that the additional wording sought by the Second and Third Respondents is not necessary and does not add any obligation not already extensively covered in the OMP regarding the use of the communal building. The additional words are to be deleted.

Orders

The Court orders that 1. The appeal is upheld. 2. The Development Application number DA 2019/30 is determined by the grant of development consent at 43 Tuckombil Lane, Tuckombil being Lot 1 in DP 786850 for the staged development of eight (8) holiday cabins (maximum 24 guests) and extension to existing shed for use as a communal area. Staging of the development is proposed as follows: 1. Stage 1 - Tourist and Visitor Accommodation - Three cabins and associated civil works (driveway and car park) and Communal Area; and 2. Stage 2 - Tourist and Visitor Accommodation - Five cabins and such development approval is subject to conditions of consent at annexure A 1. Exhibit 2R1 to be returned to the Second and Third Respondents.

Commissioner of the Court Annexure A (1826253, pdf) Plans (10760689, pdf)

Amendments 03 November 2021 - Added 'Plans' attachment. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 November 2021

(2013) 201 LGERA 116

(2010) 171 LGERA 440

(2007) 151 LGERA 400

(2013) 195 LGERA 229

(2005) 142 LGERA 104

At a glance

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Judgment (13 paragraphs)

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Cases Cited (38)