Kingdom Towers 1 Pty Ltd v Liverpool City Council

Land and Environment Court (NSW)|2020-11-17

Judgment

COMMISSIONER: This is an appeal under the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Concept Development Application DA-626/2018 (the Application) by Liverpool City Council (the Council). The Application is for a mixed-use development on a site comprising 402 Macquarie Street, 180-186 Terminus Street and 190 Terminus Street Liverpool; legally described as Lot 1, DP 798853, Lot 10, DP589509 and Lots 1-2 DP741869 (the site).

The site and locality

I rely on Council's Amended Statement of Facts and Contentions (Ex 6) for much of the material in this and the following two descriptive sections, noting the Applicant's general agreement as to these points of content in its reply statement filed 19 June 2020.
The site is located on the corner of Macquarie Street and Carey Street, within the Liverpool CBD, located approximately 800m south-west of Liverpool railway station.

Statutory planning context

The applicable local environmental planning instrument is Liverpool Local Environmental Plan 2008 (LLEP). The site falls within the B4 Mixed Use zone under LLEP. The zone runs parallel to, and either side of, Macquarie Street and Terminus Street in the site vicinity. The R4 High Density Residential zone extends south-east from this corridor in the site environs. An extract of the LLEP's Land Zoning Map, highlighting the site through red property boundary markings, is provided below at Figure 1. Figure 1 - Zoning map, highlighting site (Source: Council's Statement of Facts and Contentions, Exhibit 6 p 4)
The objectives of the B4 Mixed Use zone under LLEP are: • To provide a mixture of compatible land uses. • To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling. • To allow for residential and other accommodation in the Liverpool city centre, while maintaining active retail, business or other non-residential uses at street level. • To facilitate a high standard of urban design, convenient urban living and exceptional public amenity.
Relevant to this matter, the land uses permissible within the B4 Mixed Use zoning include "commercial premises" (and therefore under LLEP's Dictionary "business premises" and "retail premises"), "hotel or motel accommodation" and "recreation facility (indoor)". There is no dispute that under LLEP's Dictionary (the Dictionary), the definition "retail premises" includes "food and drink premises" which itself includes "pub".
Clause 7.5A of LLEP applies to the site (as the site falls within "Area 8" under subcl (1)). Clause 7.5A essentially opens the gateway for uplifts in the applicable maximum building height and floor space ratio (FSR) controls otherwise applicable under cll 4.3 and 4.4 of LLEP, respectively. There are certain prerequisites to be met if an application is to qualify for this uplift in development potential.
The clause is reproduced relevantly as follows: 7.5A Additional provisions relating to certain land at Liverpool city centre … (2) Despite clauses 4.3 and 4.4, if at least 20% of the gross floor area of a building is used for the purposes of business premises, centre-based child care facilities, community facilities, educational establishments, entertainment facilities, food and drink premises, functions centres, information and education facilities, medical centres, public administration buildings or retail premises - (a) the height of the building may exceed the maximum height shown for the land on the Height of Buildings Map, and (b) the maximum floor space ratio of the building may exceed the maximum floor space ratio shown for the land on the Floor Space Ratio Map but must not exceed - (i) in relation to a building on land identified as "Area 8" or "Area 10" on the map - 10:1, or (ii) in relation to a building on land identified as "Area 9" on the map - 7:1. (3) Development consent must not be granted under this clause unless - (a) a development control plan that provides for the matters specified in subclause (4) has been prepared for the land, and (b) the site on which the building is located also includes recreation areas, recreation facilities (indoor), community facilities, information and education facilities, through site links or public car parks. (4) The development control plan must include provision for how proposed development is to address the following matters - … (b) the existing and proposed uses and use mix, ...
Clause 7.5 of LLEP is concerned with design excellence. Because this judgement finds the application does not achieve the prerequisites required to trigger cl 7.5A there is no need for me to consider this further jurisdictional test.
Other planning controls also apply of course but given my finding with respect to cl 7.5A there is no need to refer to them at this time.

The proposal

The Application is a concept development application under s 4.22 of the EPA Act, with the Applicant requesting it be treated as such. The Applicant indicates in closing submissions that the Application seeks (Applicant's Written Closing Submission dated 27 November 2020 (AWCS), p 2): "…approval only for site layout, location of future buildings, vehicular access, maximum building envelopes including setbacks and height and GFA for the Site (Proposed Concept Development)."
The plans before the Court also indicate certain "use" aspects of the proposal. These use aspects are reasonably considered a fundamental or essential part of the Application because of the Application's reliance on cl 7.5A of LLEP to achieve the uplift in FSR and building height (as embodied in the Application) compared to the otherwise applicable controls. In particular cl 7.5A(2) stipulates that 20% of the gross floor area (GFA) of the proposed building is to be used for certain nominated uses, and cl 7.5(4)(b) provides that the required development control plan (or under s 4.23 of the EPA Act, a concept development application as an alternative) must include provisions to address "existing and proposes uses and use mix".

Procedural background

The hearing was conducted under the guidance of the Court's COVID-19 Pandemic Arrangements Policy, which is intended to put into effect the State's public health orders regarding social distancing mindful of COVID-19. More particularly, the hearing was conducted as a "virtual court room" arrangement under the "Microsoft Teams" platform.

Qualification for floor space and height of building uplift under cl 7.5A

The determinative issue is whether the proposal qualifies for maximum FSR and height of building uplift under cl 7.5A of LLEP. This represents Contention 1 in Ex 6. This first contention is a jurisdictional gateway. That is to say, the Application cannot be approved unless it qualifies under cl 7.5A.
I note that a number of experts provided sworn evidence in the hearing. However, in this case the matter was determined on the basis of legal interpretations.

Context

Under cll 4.3 and 4.4 of LLEP, respectively, a maximum building height of 28 m and maximum FSR of 3:1 would apply. Provided a development qualifies under cl 7.5A of LLEP: (1) the height of building control under cl 4.3 may be exceeded (with no nominated upper limit), and (2) the FSR control under cl 4.4 may be exceeded to a (total) maximum of 10:1.
The Application provides for a maximum building height of 104.9m (embodied in a 30 storey high tower) and a maximum FSR of 10.1.
The determinative precondition for securing the uplift is at cl 7.5A (2): …at least 20% of the gross floor area of a building is used for the purposes of business premises, centre-based child care facilities, community facilities, educational establishments, entertainment facilities, food and drink premises, functions centres, information and education facilities, medical centres, public administration buildings or retail premises.
With the assistance of the joint expert report from the urban designers and planners (Ex 1, p 7), I note that Sheet DA2_020 of the Application plans (Ex B) indicates as follows: 1. Proposed total GFA 23,030m2 (I note that in their joint report, the experts indicate this as a "potential" GFA (Ex 1, p 7 - subcl 1.b)). 2. "Hotel business uses" with areas indicated as follows: 1. Ground floor retail - 115m2 2. Ground floor (food and drinks) - 880m2 3. Level 1 (gym) - 300m2 4. Podium levels 2-7 (food and drinks) - 80m2 5. Podium levels 2-7 (hotel GFA) - 5920m2 6. Level 8 (food and drinks) - 80m2
Sheet DA2_009 of Ex B indicates in regard to Levels 2-7 "hotel/business" and includes the following text "Levels 2-7 - total GFA = 6000m2 (26%)", under a heading "hotel/business".
I note that some variations to this breakdown are included in draft conditions agreed by the parties (without prejudice) which I will address later.
If, in fact, 6000m2 of the proposed 23,030m2 were to be used for business premises (or, relevantly here food and drink premises - both of which are qualifying uses under cl 7.5A(2)), then the proposal would meet the prerequisite at cl 7.5A(2) as 26% of the GFA of the building would be used for business premises, exceeding the required 20%.
The Applicant provided a written submission concerned particularly with the interpretation of cl 7.5A and the Application's qualifications in regard to it. This document (AWS1) was internally referenced as "filed on 6 July 2020". In support of the Applicant's position in regard to cl 7.5A, AWS1 was supplemented by oral submissions during the hearing, AWCS and a written reply to Council's written closing submissions (AWRS) dated 9 December 2020.
The Applicant submitted that (AWS1, p 14): "…clause 7.5A(2) permits the gross floor area of the building proposed to be used for hotel accommodation to fall within the definitions of "business premises" and/or "food and drink premises" and this area also be included in the calculation of 20% GFA pursuant to the clause."
The main point of dispute here is the categorisation of the use of Levels 2-7, shown in the plans as "Hotel/Business". In submissions, the Applicant confirms the apparent intention from the plans that what is proposed here is hotel accommodation, at least for the bulk of these levels. While the crux of the question is clear, there is sometimes misalignment between the terminology used, in some of the parties' submissions, and Dictionary terminology. Here, I generally follow the Applicant's lead and refer to the proposal insofar as generally Levels 2-7 is concerned, as the "proposed hotel accommodation" (eg AWS1, p 20). I note that the Dictionary definitions adopt the higher order term "tourist and visitor accommodation", within which the term "hotel and motel accommodation" falls, under the Dictionary's provisions. These terms come up in somewhat different contexts in the various legal submissions and I attempt to navigate the use the terms appropriately, below.

Applicant's central arguments

I understood the following three arguments to be put in the Applicant's submissions: (1) the proposed hotel accommodation may be categorised as "business premises" for the purposes of cl 7.5A(2); (2) the proposed hotel accommodation may be categorised as "food and drink premises" for the purposes of cl 7.5A(2); and (3) consideration of the "beneficial and facultative" nature of cl 7.5A(2) (in support of each of the above two arguments).
I will deal with the "beneficial and facultative" consideration initially as it affects the interpretation of both the other arguments.

Issue 1 - whether cl 7.52A(2) is beneficial and facultative and warrants "widest interpretation that its language will give"

The Applicant submits that the "power" in cl 7.5A(2) should be considered "beneficial and facultative" (AWS1, p7). The Applicant initially cites two authorities in support. The first is Christodoulou v Blacktown City Council [2017] NSWLEC 1554 (Gray C) (Christodoulou), where at [50] and [55] the Commissioner found cl 4.1A of Blacktown Local Environmental Plan 2015 (BLEP) "facultative". A reason for this, according to Commissioner Gray was that cl 4.1A provided for subdivision down to a minimum lot size of 300m2 for dual occupancy development when other development standards within BLEP applied more restrictive subdivision standards (i.e. minimum lot sizes larger than 300m²).
The Applicant's second authority is Universal Property Group Pty Ltd v Blacktown City Council [2020] NSWLEC 1432 (Espinosa C) (UPG), which also related to cl 4.1A of BLEP and called on Commissioner Gray's finding in Christodoulou that cl 4.1A of BLEP as facultative. Commissioner Espinosa agreed with certain submissions to ultimately make conclusions advancing the particular findings in Christodoulou at [21]: "I accept, as submitted by the Applicant, that cl 4.1C, being a beneficial and facultative clause "should be construed so as to give the "widest interpretation that its language will give"."
Commissioner Espinosa referenced Radray Constructions Pty Limited v Hornsby Shire Council (2006) 145 LGERA 292; [2006] NSWLEC 155 (Radray) as the source of her quote in [21].
I understood the Applicant to be aligning the provisions at cl 7.5A(2) of LLEP with those of cl 4.1A of BLEP, and the findings of the Commissioners in Christodoulou and UPG cited above. As put by the Applicant (AWS1, p7): "…clause 7.5(A2) is beneficial and facultative because it provides a beneficial dispensation on the maximum height and GFA in clauses 4.3 and 4.4 of LLEP and it is facultative through its operation".
The Applicant also directly cited Radray, submitting that the provision "should be construed so as to give the 'widest interpretation that its language will give'" (ibid, p 8).

Consideration

The Applicant goes too far in regard to its assumptions as to the beneficial and facultative implications of cl 7.5A(2) as applying to the Application.
Radray was concerned with available powers to amend development applications. At the point in time of that judgment, cl 55 of the Environmental Planning and Assessment Regulation 2000 (the EPAR) was the source of power, and Jagot J referenced earlier findings on the same matter in Ebsworth v Sutherland Shire Council [2005] NSWLEC 603 (Ebsworth) (Talbot J) at [40]: "It is my view that Regulation 55 is beneficial and facultative and intended to facilitate the making of amendments on two accounts. Firstly to enable the applicant for consent to respond to any issues identified by the council or objectors and secondly to encourage a consent authority to solicit a better outcome. A broad approach to the application of Regulation 55 is therefore appropriate."
In Ebsworth, Talbot J referenced the adoption of a "broad approach" to the application of power with the intention of making available the two clear and unequivocal benefits that are cited, with Jagot J in agreement with that finding (Radray at [8]).
Her Honour's other cited cases in support of her ultimate finding in Radray, of relevance here, were Bridge Shipping Pty Limited v Grand Shipping SA (1991) 173 CLR 231 at 260 - 261 per McHugh J and Holmes v Permanent Trustee Company of New South Wales Limited (1932) 47 CLR 113 at 19 per Rich J (Radray at [9]). Each of these two cases came to the conclusion that in the relevant instances something similar in phrasing to "the widest interpretation which its language will permit" applied. The common point in these two cases, or reasoning behind this finding of the widest permissible interpretation, was that the particular provisions were found to be "remedial". Reviewing the authorities (relevantly), I understand the term remedial in the sense that the particular provision is intended to address instances where the law is not operating as intended overall.
For me, Radray and Ebsworth found that cl 55 of the EPAR was beneficial and facultative in that it enabled changes to be made to applications, without the downside of starting again with a new application (albeit without breaching the barrier of constituting an original application (Radray at [6])). Both a broad approach and the widest of interpretations was warranted because it facilitated the law's intentions.
This notion of an aspired and quite clear beneficial purpose in regard to the essential intentions of the law, which might be remedial or otherwise, seems to me to be behind each of the authorities referenced above. For me it provides a logic behind support for the "widest interpretation" approach.
There is indeed a beneficial intention to cl 7.5A of LLEP. But the benefits are conditional. The conditions provide that the uplift in a building's FSR and height controls applies only to certain lands (subcl (1)) and on the proviso that 20% of the building's GFA would be used for certain nominated land uses (subcl (2)). It is reasonable to understand that LLEP's drafters selectively applied the benefits with the view that the selected sites and selected land uses (mindful as well of the preconditions at subcll (3) and (4)) will provide some form of justifiable public benefits in return, which sets the sites and land uses aside from others.
The Applicant made attempts to show that the proposed hotel accommodation (of an increased scale associated with cl 7.5A(2)) was in clear alignment with LLEP's aims. While there is no objective specified for cl 7.5A within LLEP, the Applicant links the clause and the uplift in development potential associated with it, to LLEP's aims (cl 1.2). The aim at subcl (d) is highlighted by the Applicant (ibid, p 7): to strengthen the regional position of the Liverpool city centre as the service and employment centre for Sydney's south west region.
There is good sense in the linking of cl 7.5A to LLEP's aims, however reference to this clause (alone) does not alter the selective aspects of cl 7.5A. That is to say, in principle, it can be thought that certain land uses were targeted by LLEP's drafters as likely to bring about benefits, including say in regard to cl 1.2(d), others not. That is to say there is no clarity that adoption of a wide interpretation of language to include a wider range of uses, as qualifying for uplift under cl 7.5(A), is beneficial of itself. I agree with Council that for this particular clause to go beyond what LLEP provides directly enters into the terrain covered in Matic v Mid-Western Regional Council [2008] NSWLEC 113 (Matic). Paragraph [8] seems relevant here: "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])."
Mindful of cl 1.2(d), but all of LLEPs aims, it would be unreasonable to presume beyond LLEP's direct provisions in regard to development potential uplift. There is nothing in the language in LLEP to suggest there was some "desirability" to the widening of the nominated uses targeted for uplift.
With cl 7.5A there is an explicit structure within LLEP itself which defines who and what might benefits and who and what cannot, presumably differentiating on the basis of the expected returned planning benefits. This is a different scenario to Radray, and the authorities cited within it, where there was good clarity on the benefits of a widest interpretation approach.

Issue 2 - whether proposed hotel accommodation may be categorised as "business premises"

I provide the relevant definition from LLEP's Dictionary: 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 a funeral home and, without limitation, premises such as banks, post offices, hairdressers, dry cleaners, travel agencies, internet access facilities, 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.

Applicant's submissions

According to the Applicant, both paragraphs (a) and (b) to the definition support the inclusion of hotel accommodation in the definition of 'business premises' (AWS1, p 5): "The proposed 'hotel accommodation' is both a trade carried on for the provision of services directly to members of the public on a regular basis, as well as under category (b) "a service" provided to member of the public on a regular basis."
The Applicant submits that hotel accommodation use provides services to the public (ibid, p 5): "'Hotel accommodation', is an activity regularly participated with by the general public whether for the service of rest and relaxation, tourist servicing, overnight stay assistance, convenience during stop over and associated activities and other helpful activities for members of the public wished to be close to beaches, shopping, sport or friend or family members living in a different town, city or state."
The use provides "accommodation for commercial reward (payment by the user of the service to the trader)", and that "(to) run a hotel is to run a business" (ibid, p 4). "The operation of a hotel providing accommodation for payment must be regarded as a "business" activity conducted within premises designed for that purpose. To consider otherwise would constitute failure to apply ordinary everyday meaning to words used in the context of LLEP 2008 and to exclude from the definition of 'business premises' the business activity of 'hotel accommodation',"
The Applicant also relates hotel accommodation to the definition of "entertainment facility" suggested in the Dictionary to mean such uses as "theatre" and "cinema". According to the Applicant, these uses "are conducted generally for profit on a business basis in the same or similar manner as hotel". The point here is that the use "entertainment facility" is specifically excluded in the Dictionary definition of "business premises", whereas "hotel (or motel) accommodation" is not excluded (ibid, p 4): "One may ask, why was not hotel accommodation excluded in the same manner? The only answer is that such exclusion was not intended by LLEP 2008."
The Applicant submits that because cl 7.5A(2) is beneficial and facultative, Council is in error with arguments suggesting best fit interpretation of the definition of "business premises" (AWS1, p 8): "…rather than give the definition of 'business premises' the widest interpretation that its language will give (Council) has instead fostered a narrow application or best fit interpretation."

Council's submissions

Council's submissions on whether the proposed hotel accommodation may be categorised as "business premises" involved three lines of argument. Firstly, Council outlined certain structural elements of the Dictionary. A certain specified grouping of terms was outlined, wherein different uses are related by reference within the Dictionary. Some examples were cited as (Respondent's Closing Submission filed 4 December 2020 (RCS), par 18): "(b) Residential accommodation (defined as a building or place used predominantly as a place of residence, including attached dwellings, boarding houses, dwelling houses, hostels, seniors housing and residential flat buildings); (c) Tourist and Visitor Accommodation (defined as a building or place that provides temporary or short-term accommodation on a commercial basis, including backpackers' accommodation, bed and breakfast accommodation, hotel or motel accommodation, and serviced apartments); (d) Commercial Premises (defined as office premises, business premises, and retail premises);"
At par 19 of RCS, the definition of "commercial premises" was highlighted as follows: "As noted above, commercial premises are comprised of three sub-groups: (a) Office premises; (b) Business premises (defined to include funeral homes, and "without limitation" other business premises that are not specifically defined such as banks, post offices and hairdressers "and the like"); (c) Retail premises (defined to include, for example, shops, food and drink premises, bulky goods premises)"
Council's point was, in my understanding, that hotel accommodation fell directly within the tourist and visitor accommodation grouping and not the business premises grouping, under this structure (ibid, par 20): "The use of a building for hotel accommodation is a use which forms part of the group term of Tourist and Visitor Accommodation. It is a use whose impacts are quite different to those of the other examples of business premises listed in the definition."
Secondly, Council referred to certain principles of construing environmental planning instruments from Matic. Council's submission was that if the meaning of an environmental planning instrument must be determined having regard to its context and purpose (Matic at [7]), there was no clarity on what purpose would be served by "including within the definition of "business premises" (defined to include, inter alia, professions, trades, banks, post offices and hairdressers "and the like") a significantly different use such as tourist and visitor accommodation with significantly different environmental impacts".
Thirdly, Council submitted that the Applicant's characterisation of the proposed hotel accommodation as business premises was inconsistent with the findings in Sevenex Pty Limited v Blue Mountains City Council (2011) 183 LGERA 1; [2011] NSWCA 223 (McColl JA, Young JA, Sackville AJA) (Sevenex). This case was concerned with an application to change the approved use of a tourist café, with certain retail sales, to include tourist entertainment including a mini zoo, reproduced relevantly below: "30… '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. ... 'retail premises' means a building or place used for the purpose of selling items by retail, or for hiring or displaying items for the purpose of selling them by retail or hiring them out, whether the items are goods or materials (or whether also sold by wholesale)." 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. … 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 … 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."
According to Council, the above findings would construe that the proposed hotel accommodation was not a business premises as it was neither an "occupation, profession or trade", nor a "service in a planning sense". This was apparent because, while other examples cited in the definition of business premises were seen to do so (RWS, par 25): "… the proposed development did not involve the provision of services to individual customers in accordance with their particular requirements".
I note there is a slight difference in the definition of "business premises" referenced in Sevenex when compared to the Dictionary to LLEP. But this has no significance in the matter before me.

Consideration

The Council's arguments relating to the grouping of land use terms in the Dictionary, and the inclusion of the use "hotel and motel accommodation" within the "tourist and visitor accommodation" grouping; that is to say within a grouping other than "business premises", provides some explanatory guidance on the form of the Dictionary. However, of itself, this grouping arrangement within LLEP's Dictionary does not rule out the potential for hotel accommodation to fall within a definition of business premises. That is to say, I do not see the Dictionary, or LLEP more widely, as providing that the Dictionary's grouping of terms as necessarily exclusive, and in this case there is no direct reference in the Dictionary to hotel and motel accommodation not falling within the business premises definition.
It does seem to me, however, that it is for the Applicant to convince the Court that the intended hotel accommodation could be categorised as business premises relevant to cl 7.5A(2). That is to say, it is not obviously apparent that what is proposed would qualify. This could have occurred, and would have been the case, had the uses tourist and visitor accommodation or hotel and motel accommodation been directly referenced as such in the Dictionary. There was also the potential for the use to be directly referenced in cl 7.5A(2), but that is not under examination here.
The Applicant sees the fact of non-exclusion of hotel and motel accommodation from the definition of business premises (as occurred with entertainment facility) as support for its submissions. The argument is that because the term "entertainment facilities" was excluded from the Dictionary definition of "business premises" and included as a particular nominated use in cl 7.5A(2), then hotel accommodation must have been intended to be included in the definition of "business premises". The Applicant submits that the "only answer" for the non-exclusion of hotel accommodation (from the business premises definition) is a drafting intention that it fall within the definition of "business premises" (see [51]).
The Applicant does not adequately prosecute this argument. There is insufficient evidence or logical argument that entertainment facilities and hotel accommodation are so close in their characteristics, or potential public benefits or impacts, that they should be seen as in alignment for that purpose. All that is clear, on this point (and in regard to the rhetorical question [51]) of the Applicant, is the drafter's intention to include entertainment facilities as a qualifying use in regard to cl 7.5A(2).
The Applicant's submissions that hotel accommodation is both a "trade carried on for the provision of services directly to members of the public on a regular basis" as well as a " 'service' provided to (members) of the public on a regular basis" is not sufficiently supported by logical argument or evidence.
The supporting argument (cited at [0] above) is unconvincing in the face of the findings of Sevenex cited as an appropriate authority by Council and Chamwell v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 (Chamwell) at [34]) .
At [32] in Sevenex, attention is drawn to the distinction between a proposed mini zoo, as providing "an experience" for members of the public; and "providing a service in a planning sense". Each of the nominated uses in the definition of business premises (with the inclusions in Sevenex close enough to those applying here, including "banks, post offices, hairdressers, dry cleaners, travel agencies, internet access facilities") were seen to "involve the provision of services to individual customers in accordance with their particular requirements" (ibid at [33]), or, provide a service "in a planning sense". I agree with Council that hotel accommodation is distinguishable here and that it does "not involve the provision of services to individual customers in accordance with their particular requirements" (RCS, par 25). While the nature of the use may include individual services (or "acts of helpful activity") provided to those staying at the hotel on occasion, this is not the purpose of a hotel accommodation use (mindful of Chamwell at [34]). The purpose of the use is the relatively generic and static accommodation of people, itself. Central is the provision to the user of a hotel room or suite, a tangible item mindful of Sevenex [31].
The Applicant also suggests that to run a hotel is to run a business, as a point of supporting the inclusion of hotel accommodation in the Dictionary definition of "business premises". The uses defined in the Dictionary often involve running businesses. As this judgement is prepared, I have LLEP's Dictionary open, and on-screen at present are the definitions for 'brothel' and 'biosolids treatment facility' as examples of this. The seeming point of the Dictionary is the drawing out of more precise use attributes for various planning purposes under the environmental planning instrument. This overly broad and imprecise argument of the Applicant is also unconvincing.

Issue 3 - whether proposed hotel accommodation may be categorised as "food and drink premises" under Dictionary definition of "pub"

Food and drinks premises are one of the listed "beneficial" uses nominated in cl 7.5(A). Under LLEP's Dictionary, "pub" is a type of food and drink premises. Relevant LLEP Dictionary definitions are reproduced below: food and drink premises means premises that are used for the preparation and retail sale of food or drink (or both) for immediate consumption on or off the premises, and includes any of the following - (a) a restaurant or cafe, (b) take away food and drink premises, (c) a pub, (d) a small bar. pub means licensed premises under the Liquor Act 2007 the principal purpose of which is the retail sale of liquor for consumption on the premises, whether or not the premises include hotel or motel accommodation and whether or not food is sold or entertainment is provided on the premises. small bar means a small bar within the meaning of the Liquor Act 2007.

Applicant's submissions

The Applicant places weight on the direct reference to "hotel or motel accommodation" in the definition of "pub". The Applicant refers to this as an "enabling inclusion" (AWS1, p 8).
The Applicant's argument here is that the definition of "pub" has the effect of "bringing two otherwise different land uses into a single defined term or land use" (ibid, p6).
Authority claimed to support the argument include T & K Berry v Wollongong Council [2008] NSWLEC 210 (Jagot J) (T & K Berry). I reproduce a referenced paragraph at [34] of this judgement in full below: "34 The proper approach to the characterisation of the purpose of development is well known. The established principles are summarised in Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400 at [27] - [50]. In this case it must be recognised that the relevant definition expressly provides that an ecotourism facility may include a manager's residence. The Council's submission that the definition contemplates a residence for one person only (being the manager) by the use of the singular "a" in the reference to a manager's residence is inconsistent with the ordinary meaning of the phrase. A manager's residence means a place where a manager may reside whether the manager is one person alone, one person with a family, or more than one person. Whether a place is being used as a manager's residence or not, as with all questions of the purpose of a use, will depend on a common sense assessment of the character, extent and features of the various uses and the ends they apparently serve."
The Applicant believes the finding is relevant and helpful to the Applicant's position on two grounds (ibid, p 19). First, that it "logically finds irrelevant the Respondent's subject Contention about 'ancillary' based on the size and numbers …". Second, that "the case illustrates how a definition can bring two otherwise different land uses into a single defined term or land use".
The Applicant also submits that Council's submission "denied this beneficial clause its entitlement to rely on the principle of statutory construction that each word should be given work to do". Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 was cited in support. It was put that (ibid, p 21): "The words in the definitions of' business premises', 'pub', and "hotel and motel accommodation" are plain and unambiguous and they should be given their ordinary and grammatical meaning. The words "trade", "service" in the definition of 'business premises' can be given their ordinary meaning and remain clearly in context particularly the beneficial intent of clause 7.5A(2)."
The definition of "pub" is given further direct attention (ibid, p 22): "The definition of 'pub' makes plain that it should not be given a narrow meaning. The ordinary meaning of 'pub' has been displaced by the act of defining the term… The definition of 'pub' having made reference to the inclusion of hotel accommodation requires that such words be given work to do."
Then drawing in the uplift provisions, the Applicant's submits (ibid): "The clause 7.5A(2) uplift provision will entitle the pub area, bar fridge/liquor service to hotel rooms, and the hotel bar areas operating as licenced premises under the Liquor Act 2008 to all be included in the 20% of gross floor area of the building because each of these areas will be used for the purposes of business premises, food and drink premises (pub and small bars) and the hotel accommodation which is not excluded from the definition of 'pub' but specifically allowed to be included by the definition."
The proper interpretation of this definition, according to the Applicant, would bring these two otherwise different land uses ((1) pub and (2) hotel or motel accommodation) into a single defined term or land use.

Council's submission

Council highlights LLEP's Dictionary defined "principal purpose" of pub as "retail sale of liquor for consumption on the premises" (RWS, par 27) but which may include hotel or motel accommodation. Council submits (ibid pars 27-28): "27. That is clearly not the case with this proposal which provides for eight levels of "hotel" of which six levels appear to be dedicated to hotel accommodation. Neither the existence of a bar fridge in each room, nor providing a relatively small area for the sale of alcohol, would convert the proposed use into a pub. 28. The applicant could have nominated the proposed use of those levels as "food and drink premises" in the application. It has not, no doubt because it seeks approval for a hotel instead."

Consideration

The Applicant relied on T & K Berry to support its submissions that land use definitions can bring two otherwise different land uses into a "single defined term or land use" (AWS1, p 7). As I understand, the argument is that provided there is the required licence and sale of liquor for consumption on a premises, then hotel or motel accommodation is a use that falls within the definition of pub; not as something ancillary or subordinate but as a use in its own right. Or that this is the case at least to the extent that the hotel accommodation involved in this Application satisfactorily meets the definition. The Applicant also relies on T & K Berry to submit that to argue that hotel accommodation was independent of the proposed food and drinks premises on the basis of "size and numbers" was irrelevant (as Council had done in Ex 6 and at least obliquely in RCS).
The assessment undertaken in T & K Berry was that when the relevant definition expressly provides that in that case "an ecotourism facility may include a manager's residence", then primary is the manager's residence as a place where a manager may reside "whether the manager is one person alone, one person with a family, or more than one person". That is to say even though the definition refers to the singular, more than one manager's residence may meet the use definition.
I am not persuaded by the Applicant's submissions. There is insufficient in the Applicant's submissions to support the leap from T & K Berry and its findings in regard to an ecotourism facility and the facility's manager's residence(s), and the setting here. The Applicant is seeking to demonstrate that the areas indicated as hotel accommodation in the plans can reasonably sit under the definition of pub as defined in the Dictionary, not as something ancillary or subordinate, but as a use in in its own right and in this instance of some considerable scale. To find that more than one manager's residence may abide by the ecotourism facility definition does not compare sufficiently with the Applicant's challenge here.
Of most relevance in T & K Berry was Jagot J's findings at [34], that: "… as with all questions of the purpose of a use, will depend on a common sense assessment of the character, extent and features of the various uses and the ends they apparently serve."
A common sense assessment would give emphasis to the Dictionary's reference to "the principal purpose" of a pub as "the retail sale of liquor for consumption on the premises". In my view a similar assessment would conclude that the phrase "whether or not the premises include hotel or motel accommodation" is a supplementary descriptive addition to the principal purpose. When "a common sense assessment of the character, extent and features" of what is proposed here is undertaken, it cannot be reasonably found that the hotel accommodation shown in the plans would be characterised as a pub.

Note on Applicant's closing reply submissions relating to without prejudice conditions

As referenced above, without prejudice conditions were emailed to the Court referring to changes to the Application required of the conditions. Without prejudice conditions 4 and 12 are reproduced below: "Design Modifications 4. The design of the concept envelope must be modified as follows: Any reference to materiality on the approved plans shall be removed as materiality is a matter to be (considered) in any detailed DA for the proposed development. Drawing DA2_009 shall be revised to remove reference to the gym on L1 and amend any reference to hotel/business on Level 2 to Level 8 to be replaced with hotel/business/recreation facility (indoor)." "Land Uses 12. A minimum 20% of the GFA for any future applications submitted is to be designated for the purpose of and use as a Business Premises, Retail Premises or Food and Drink Premises."
In written closing reply submissions, the Applicant made reference to these two conditions (AWRS, p 2): "The Agreed conditions are consistent with the Applicant's original submissions that clause 7.5A permits the gross floor area of any hotel accommodation to fall within the definitions of 'business premises' and/or 'food and drink premises'"
While I note the changes proposed in the without prejudice conditions, there is no alteration to my conclusions as a consequence. I note that the Applicant's reading of any future amendments to the Application particulars would be that there remained the capacity for the proposed hotel accommodation to be included [84]. I would also not see such changes to the labelling of the plans to affect the larger intent of the Application as considered above.

Conclusion

The proposal does not meet the required prequalification for uplift in maximum building height and FSR under cl 7.5A(2). The proposal exceeds LLEP's development standards relating to building height and FSR. There is no jurisdiction to approve the Application. In this event, there is no need to further consider the issues in contention.
The Court orders that: 1. The appeal is dismissed. 2. Concept development application DA-626/2018 for a mixed-use development at 402 Macquarie Street, 180-186 Terminus Street and 190 Terminus Street Liverpool is refused. 3. The exhibits are returned except for Exhibits A and B.

Commissioner of the Court 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: 04 March 2021

(2007) 151 LGERA 400

(2006) 145 LGERA 292

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