Jancewicz v Wagga Wagga City Council [2023] NSWLEC 1695 | Case summary

Facts

The site is zoned as follows: 1. 292 Edward Street - R3 Medium Density Residential 2. 290 Edward Street - R3 Medium Density Residential 3. 11 Gormly Avenue - R1 General Residential.
The Land Use Tables for the R3 Medium Density Residential zone and R1 General Residential zone are as follows: Zone R3 Medium Density Residential 1 Objectives of zone • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To ensure that medium density residential environments are of a high visual quality in their presentation to public streets and spaces. 2 Permitted without consent Home businesses; Home occupations; Roads 3 Permitted with consent Attached dwellings; Boarding houses; Centre-based child care facilities; Community facilities; Group homes; Home industries; Kiosks; Multi dwelling housing; Neighbourhood shops; Oyster aquaculture; Places of public worship; Respite day care centres; Restaurants or cafes; Seniors housing; Take away food and drink premises; Tank-based aquaculture; Any other development not specified in item 2 or 4 4 Prohibited Agriculture; Air transport facilities; Airstrips; Amusement centres; Animal boarding or training establishments; Backpackers' accommodation; Biosolids treatment facilities; Boat building and repair facilities; Camping grounds; Caravan parks; Cemeteries; Commercial premises; Correctional centres; Crematoria; Depots; Eco-tourist facilities; Entertainment facilities; Extractive industries; Farm buildings; Farm stay accommodation; Forestry; Freight transport facilities; Function centres; Heavy industrial storage establishments; Helipads; Highway service centres; Home occupations (sex services); Industrial retail outlets; Industrial training facilities; Industries; Local distribution premises; Marinas; Mooring pens; Mortuaries; Open cut mining; Passenger transport facilities; Recreation facilities (major); Registered clubs; Research stations; Resource recovery facilities; Restricted premises; Rural industries; Rural workers' dwellings; Sewage treatment plants; Sex services premises; Storage premises; Transport depots; Truck depots; Vehicle body repair workshops; Vehicle repair stations; Veterinary hospitals; Warehouse or distribution centres; Waste disposal facilities; Waste or resource management facilities; Water recycling facilities; Water treatment facilities; Wharf or boating facilities; Wholesale supplies Zone R1 General Residential 1 Objectives of zone • To provide for the housing needs of the community. • To provide for a variety of housing types and densities. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To ensure co-ordinated and cost-effective provision of physical, social and cultural infrastructure in new residential areas. 2 Permitted without consent Home businesses; Home occupations; Roads 3 Permitted with consent Attached dwellings; Boarding houses; Centre-based child care facilities; Community facilities; Dwelling houses; Group homes; Home industries; Hostels; Multi dwelling housing; Neighbourhood shops; Oyster aquaculture; Places of public worship; Pond-based aquaculture; Residential flat buildings; Respite day care centres; Semi-detached dwellings; Seniors housing; Shop top housing; Tank-based aquaculture; Any other development not specified in item 2 or 4 4 Prohibited Agriculture; Air transport facilities; Airstrips; Amusement centres; Animal boarding or training establishments; Backpackers' accommodation; Biosolids treatment facilities; Boat building and repair facilities; Camping grounds; Caravan parks; Cemeteries; Commercial premises; Correctional centres; Crematoria; Depots; Eco-tourist facilities; Entertainment facilities; Extractive industries; Farm buildings; Farm stay accommodation; Forestry; Freight transport facilities; Function centres; Heavy industrial storage establishments; Helipads; Highway service centres; Home occupations (sex services); Hotel or motel accommodation; Industrial training facilities; Industries; Local distribution premises; Marinas; Mooring pens; Mortuaries; Open cut mining; Passenger transport facilities; Recreation facilities (indoor); Recreation facilities (major); Recreation facilities (outdoor); Registered clubs; Research stations; Resource recovery facilities; Restricted premises; Rural industries; Rural workers' dwellings; Sewage treatment plants; Sex services premises; Storage premises; Transport depots; Truck depots; Vehicle body repair workshops; Vehicle repair stations; Veterinary hospitals; Warehouse or distribution centres; Waste disposal facilities; Waste or resource management facilities; Water recycling facilities; Water treatment facilities; Wharf or boating facilities; Wholesale supplies
The parties identified the only competing defined purposes of development in terms of the environmental planning instrument are "car park" and "commercial premises". In the latter case, only paragraph (b) of the definition of "business premises". No other land use category defined in the WWLEP is relevant.
The terms "car park", "business premises" and "commercial premises" are defined in the Dictionary to the WWLEP as follows: car park means a building or place primarily used for the purpose of parking motor vehicles, including any manoeuvring space and access thereto, whether operated for gain or not. business premises means a building or place at or on which - (a) an occupation, profession or trade (other than an industry) is carried on for the provision of services directly to members of the public on a regular basis, or (b) a service is provided directly to members of the public on a regular basis, and includes funeral homes, goods repair and reuse premises and, without limitation, premises such as banks, post offices, hairdressers, dry cleaners, travel agencies, betting agencies and the like, but does not include an entertainment facility, home business, home occupation, home occupation (sex services), medical centre, restricted premises, sex services premises or veterinary hospital. Note - Business premises are a type of commercial premises - see the definition of that term in this Dictionary. commercial premises means any of the following - (a) business premises, (b) office premises, (c) retail premises.
The Land Use Table for the R3 Medium Density Residential zone is structured so as to permit, with development consent, "any other development not specified in item 2 or 4". Item 4 specifies nominated purposes of development that are prohibited and includes "commercial premises". There is no express reference to a "car park" in the R3 Land Use Table.

The parties' submissions

The parties agree that in planning law, use must be for a purpose: Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534-5; Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 (Chamwell) at [27] (Preston CJ). Furthermore, that the characterisation of the purpose of a use of land is to be done at a level of generality which is necessary and sufficient to cover the individual activities, transactions and 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 (McHugh JA); Chamwell at [36]. In approaching the question of characterisation of a use of land, what is required is the determination of the appropriate genus which best describes the activities in question: North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd (1989) 16 NSWLR 50 at 59E-F (Kirby P). The focus of this inquiry is whether the proposed development is within a nominate or innominate purpose: Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116; [2013] NSWLEC 147 (Pet Carriers) at [32].
The applicant submits the physical character, extent and features of the car park, and the activities that will take place on it, that is, the parking of motor vehicles, plainly answers the defined land use purpose of a "car park".
However, it is not disputed that if the proposed development is properly characterised as "business premises" (and therefore "commercial premises") it will be prohibited by the operation of the Land Use Table and cl 2.3(1) of the WWLEP.
The Council submits the car park is clearly to be provided directly to members of the public on a regular basis; thus, it is a "service": subpar (b) of the definition of "business premises".
The applicant contends that no "service" is to be provided for the following reasons: 1. Permission to occupy a space for motor vehicles is not the provision of "service", any more than the provision of accommodation: see, by parity of reasoning, Kingdom Towers 1 Pty Ltd v Liverpool City Council [2021] NSWLEC 1074 (Kingdom Towers) at [66]. 2. The use of the car park by persons parking motor vehicles does not involve any "service" in the relevant sense of being provided with "an act of helpful activity": Sevenex Pty Ltd v Blue Mountains City Council (2011) 183 LGERA [2011] NSWCA 223 (Sevenex CA) at [32]-[33].
The question of what constitutes a service for the purposes of a similar form of the above definition was considered in the Court of Appeal decision in Sevenex CA at [31]-[34] (per Young JJA (McColl JA and Sackville AJA agreeing)): "31 The real question here is whether the proposed change of use is another commercial use in that the building is being used: (a) for retail premises; or (b) for business premises, noting that (b) involves a service provided directly to the public on a regular basis. So far as a retail business is concerned, the applicant's submission is that what is actually proposed to be sold on the lower ground floor are tickets from the ticketing office and photos of patrons with the exhibits and that the sale of tickets brings the activity within the concept of a retail business. The distinction between "retail premises" and "business premises" is that the former directs attention to the sale and hire of items - tangibles, whereas "business premises" directs attention to the provision of services - intangibles. It is put that the proposed use qualifies under both or either of the headings. 32 The Commissioner and the primary judge could not accept that selling tickets to the koala exhibit constituted a retail business. As Sackville AJA said during argument, one can sell tickets to anything. I am quite sure that a bus driver taking a couple of dollars and selling a ticket from Ryde to Circular Quay would be surprised to think that he or she was involved in a retail business, as would the passenger. The decisions below distinguish between what is purchased in a shop on the one hand, and the purchase of entertainment on the other, and to my mind, that is perfectly correct. Turning then to whether these are business premises, there is no occupation, profession or trade seemingly carried on, but even if there was, the proposed activity would not be a service provided directly to members of the public on a regular basis. The primary judge accepted Mr Robson's submission that the ordinary definition of "service" is "an act of helpful activity". The primary judge continued at [47]: "The proposed development, which provides 'an experience', cannot be identified as providing a service in a planning sense." 33 I respectfully agree. Mr Hale accepted that the specific examples given in the definition of "business premises" can be taken into account in determining the scope of the expression: "a building or place at or on which ... (b) a service is provided directly to members of the public on a regular basis." The proposed development does not involve the provision of services to individual customers in accordance with their particular requirements, as is the case with each of the examples given in the definition. The only doubt one has about the list is the reference to "sex services" being specifically excluded from which one might conclude that if they were not specifically excluded they would come within the definition of "services", but I do not think that that is sufficiently strong to displace the ordinary meaning of the word. 34 I realise, of course, that in some contexts the word "services" can have a very wide connotation: see IW v City of Perth [1997] HCA 30; 191 CLR 1, 12-14. However, one must read the word in its context and the illustrations given direct the mind to the type of service that the rule-making body had in mind."
In that case, the definition of "business premises" was defined by reference to the Standard Instrument (Local Environmental Plans) Order 2006 then in different terms as follows: business premises means a building or place at or on which: (a) an occupation, profession or trade (other than an industry) is carried on for the provision of services directly to members of the public on a regular basis, or (b) a service is provided directly to members of the public on a regular basis, and may include, without limitation, premises such as banks, post offices, hairdressers, dry cleaners, travel agencies, internet access facilities, medical centres, betting agencies and the like, but does not include sex services premises.
The current definition in the WWLEP was amended on 25 February 2011 by the Standard Instrument (Local Environmental Plans) Amendment Order 2011 to expressly exclude the following uses separately defined in the Dictionary to the WWLEP: entertainment facility, home business, home occupation, home occupation (sex services), medical centre, restricted premises, sex services premises or veterinary hospital
"Internet access facilities" are now not expressly included but "funeral homes, goods repair and reuse premises" are.
The relevant facts in Sevenex CA were described by the Commissioner at first instance in the Court below as follows: "1 SENIOR COMMISSIONER: Echo Point lookout at Katoomba is one of NSW's most frequently visited tourist locations. Approximately 160 m from the lookout is located a retail complex that trades under the name The Three Sisters' Plaza (the building). The site of the building (the site) is the only developed land on this side of Echo Point Road between Lilianfells Park and the entrance to the lookout. The site is on the edge of the escarpment and has an area of 1783 m². The site is wholly located within the Echo Point tourist precinct. 2 The building has three levels. The middle level is the level accessed directly, by a short flight of steps, from Echo Point Road. The lower level, the subject of the development application in this appeal, is virtually entirely below ground level with a number of high-level windows (with sills at or near the external ground level), along the western perimeter, providing limited natural light. There is, however, a large open stairwell from the middle level that also provides a degree of light, although not directly, into the lower level. 3 The applicant now proposes, in the area on the lower level, to establish, in the south-western corner, a koala and reptile exhibit that will include opportunities for visitors to be photographed with koalas. The visitors will pay a fee to enter this exhibit. The exhibit will also incorporate a koala and reptile food storage room and secure areas to which the koalas can be removed when they are not part of the active display. Two or three koalas are proposed to be housed in this exhibit. 4 Along the eastern wall at this level is proposed to be an Aboriginal Cultural Trail. Entry to this will also require payment. Toward the north-western corner of the lower level will be established a cafe adjacent to the koala exhibit and, to the north of the cafe, a retail tourist and souvenir shop is proposed. 5 The council raises no issue with respect to the cafe and retail aspects of the proposal but contends that the koala and reptile exhibit and the Aboriginal Cultural Trail are prohibited uses." (Emphasis added) (Sevenex Pty Limited v Blue Mountains City Council [2009] NSWLEC 1264)
Sheahan J considered the matter and held: "47 I am not convinced by Mr Hale's submission that the definition of "services" would extend to a use such as the proposed development. As Mr Robson submits, the ordinary Australian English definition of "service" is "an act of helpful activity". The proposed development, which provides "an experience", cannot be identified as providing a service in a planning sense. Further, as the description of the proposal in documents accompanying the application suggests, the proper characterisation of the proposal is that of an "information and education facility", or a tourist facility. 48 The use of the words "and the like" in the definition of "business premises" has the effect of limiting uses which may be covered to those of a similar nature to those which are identified. Those mentioned in the definition all share a "theme" in that they are of a domestic nature and would be common to most shopping centres and suburban localities. The proposed new uses are not of that type, and therefore could not be seen as embraced by the definition of "business premises"." (Sevenex Pty Limited v Blue Mountains City Council (No.2) [2010] NSWLEC 101)
The Court of Appeal also determined that the koala and reptile exhibit and the Aboriginal Cultural Trail were not prohibited as business premises because no "service" was being provided relevantly because an "experience" was not a "service" within the planning context of the definition: "31 The real question here is whether the proposed change of use is another commercial use in that the building is being used: (a) for retail premises; or (b) for business premises, noting that (b) involves a service provided directly to the public on a regular basis. So far as a retail business is concerned, the applicant's submission is that what is actually proposed to be sold on the lower ground floor are tickets from the ticketing office and photos of patrons with the exhibits and that the sale of tickets brings the activity within the concept of a retail business. The distinction between "retail premises" and "business premises" is that the former directs attention to the sale and hire of items - tangibles, whereas "business premises" directs attention to the provision of services - intangibles. It is put that the proposed use qualifies under both or either of the headings. 32 The Commissioner and the primary judge could not accept that selling tickets to the koala exhibit constituted a retail business. As Sackville AJA said during argument, one can sell tickets to anything. I am quite sure that a bus driver taking a couple of dollars and selling a ticket from Ryde to Circular Quay would be surprised to think that he or she was involved in a retail business, as would the passenger. The decisions below distinguish between what is purchased in a shop on the one hand, and the purchase of entertainment on the other, and to my mind, that is perfectly correct. Turning then to whether these are business premises, there is no occupation, profession or trade seemingly carried on, but even if there was, the proposed activity would not be a service provided directly to members of the public on a regular basis. The primary judge accepted Mr Robson's submission that the ordinary definition of "service" is "an act of helpful activity". The primary judge continued at [47]: "The proposed development, which provides 'an experience', cannot be identified as providing a service in a planning sense." 33 I respectfully agree. Mr Hale accepted that the specific examples given in the definition of "business premises" can be taken into account in determining the scope of the expression: "a building or place at or on which ... (b) a service is provided directly to members of the public on a regular basis." The proposed development does not involve the provision of services to individual customers in accordance with their particular requirements, as is the case with each of the examples given in the definition. The only doubt one has about the list is the reference to "sex services" being specifically excluded from which one might conclude that if they were not specifically excluded they would come within the definition of "services", but I do not think that that is sufficiently strong to displace the ordinary meaning of the word. 34 I realise, of course, that in some contexts the word "services" can have a very wide connotation: see IW v City of Perth [1997] HCA 30; 191 CLR 1, 12-14. However, one must read the word in its context and the illustrations given direct the mind to the type of service that the rule-making body had in mind." (Emphasis added) (Sevenex CA at [31]-[34])
The Council observed the distinction drawn in Sevenex CA between the provision of an "experience" (held not to be a "service" under the definition as it then was) is quite different to what is being provided by a commercial public car park to patrons. The decision is therefore distinguishable. Albeit, the fact that the definition of "business premises" was amended to explicitly exclude an "entertainment facility" suggests that the distinction drawn in Sevenex CA regarding an "experience" not being a "service" may have been different if determined today.
There would have been no reason for the draftsperson to exclude an "entertainment facility" (a theatre, cinema, music hall, concert hall, dance hall and the like, but does not include a pub or registered club) from being a "business premises" if the intention of the Standard Instrument had not been that the provision of an "experience" is not ordinarily within the broad notion of provision of a "service" in the relevant planning context.
More importantly, if that use had not previously been intended to be within the meaning of par (b) and therefore a place where a "service" is provided, the amendment must be an indication that it would be following the amendment.
In any case, the distinction relied upon by the Court of Appeal turned on the fact that an "experience" (a koala and reptile exhibit and an Aboriginal Cultural Trail) was not something provided in accordance with the particular requirements of individual customers.
That said, the service provided by the proposed commercial car park is quite different to an experience in the Sevenex sense. As are the facts which found the reasoning of the Court's decision in Kingdom Towers.
In this instance the customer of a public car park receives from the operator permission to occupy a car space on the land for the particular amount of time that he or she desires or requires. That is an act of helpful activity by the operator.
The customer no doubt usually pays for the same relative to the length of the stay in the car park. But this is also irrelevant. The question is whether a "service" is provided, not the presence or otherwise of recompense for same.
The fact that there may not be any person who will be present at the ticket machine and physically operating the boom gate of this particular car park must be immaterial. Whether a service is facilitated directly by an individual or alternatively by automated equipment cannot be relevant for planning purposes; compare for example, an automatic car wash and one where the car washing is done by hand. Both are places where the service of car washing is being provided.
Similarly in the case of the proposed car park, it is still the programmed act of the operator who provides car spaces and operates the automatic boom gate, ticketing systems and the offer of EV charging that are the facts that are collectively a helpful act for customers.
The proposed development is a use for the purpose of par (b) of the definition of "business premises" as defined in WWLEP. This is a use which is expressly prohibited as being for "commercial premises".

Jancewicz v Wagga Wagga City Council

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Judgment (9 paragraphs)

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Cases Cited (11)