Optima Developments Pty Limited v Lake Macquarie City Council

9 The applicant alternatively submits that the use of the land is for an "educational establishment" as defined in the Model Provisions. Such definition provides:- educational establishment means a building used as a school, college, technical college, academy, lecture hall, gallery or museum, but does not include a building used wholly or principally as an institution or child care centre.

The applicant says that the land will be used as a "lecture hall" which is a permissible use in the Rural C zone under the LEP.

10 The council submits that the definition of "tourist facilities" requires the provision of "holiday accommodation or recreation". The remainder of the definition "tourist facilities" is facultative but the uses therein listed may only be considered to be "tourist facilities" if the mandatory requirement of the definition is satisfied. The council submits that a conference use cannot be categorised as "tourist facilities", since the ordinary and natural meaning of "holiday" and "recreation" are antipathetic to "conference". The council relies upon definitions contained in the Macquarie Dictionary (revised 3rd edition) to demonstrate that the proposed conference use is not for "holiday accommodation or recreation". The term "holiday" is relevantly defined as "any day of exemption from labour". "Recreation" relevantly means "a pastime, diversion, exercise or other resource affording relaxation and enjoyment". In contrast, the word "conference" is defined relevantly as:- A meeting for consultation of discussion; the act of conferring or consulting together; consultation, especially on an important or serious matter Accordingly, the provision of a conference facility is inconsistent with that of "tourist facilities" as defined. 11 The council further submits that the existing approval for the use of the land as a motel does not assist the applicant. A "motel" is separately defined in the Model Provisions as follows:- motel means a building or buildings (other than a hotel, boarding-house or residential flat building) substantially used for the overnight accommodation of travellers and the vehicles used by them whether or not the building or buildings are also used in the provision of meals to those travellers or the general public. 12 The approved use of a "motel" is defined as providing overnight accommodation to travellers and does not involve any element of holiday accommodation. The council says that the inclusion of the word "motel" in the definition of "tourist facilities" does not lead to the conclusion that the principal obligation to provide holiday accommodation is redundant. Alternatively, the council submits that even if the motel and restaurant could be regarded as a tourist facility, the addition of a conference facility remains a separate commercial use because it is development not contemplated by the definition of "tourist facilities".

13 The council submits that the approved uses were granted on the basis of their characterisation as stated in the development applications, and that the approved use of a motel cannot be construed as an approval for "tourist facilities".

14 In answer to the applicant's submission that the proposed use for conferences is an ancillary use to the restaurant and motel, the council says such submission ignores the fact that a separate development application has been lodged for the proposed use. The lodgement of such application demonstrates that the proposed use for conferences is recognised to be a separate use. The council submits that whether a use is truly ancillary to another use is a question of fact and degree and that there is insufficient evidence before the Court to determine such issue. 15 Similarly the council submits that there is insufficient evidence before the Court to enable it to determine whether the proposed use could be considered an "educational establishment".

Findings 16 The applicant has obtained approval pursuant to three development applications to use the land as a "Heritage College", a "motel" and "[a]dditions/alterations creating a restaurant and twenty four additional motel suites". The applicant has never obtained consent to use the land as a tourist facility. The fact that the applicant operates under the name of the "Watagan Lodge Tourist Facility" is irrelevant for the purpose of determining its authorised use. A "motel" is a separate use. The definition of "motel" requires that the buildings be "substantially used for overnight accommodation of travellers", and the provision of meals for travellers and the general public. An approval for a "motel" does not necessarily render it a tourist facility, which must provide "holiday accommodation or recreation". 17 The Court is not permitted to "substitute its own opinion for that of the primary decision maker" (see Minister for Aboriginal Affairs v Peko Wallsend Limited and Others (1985-1986) 162 CLR 24 in Londish v Knox Grammar School and Others (1997) 97 LGERA 1 per Stein JA at p 7-8) and in this instance, to re-characterise the approved existing uses for "tourist facilities". The Court should not review the characterisation of the approved existing uses and cannot interpret any of the consents as authorising the land to be used as "tourist facilities". It has not been alleged that the council's characterisation of the existing approved uses has been vitiated by irrelevant considerations and was not "reasonably open to be made": see Londish v Knox Grammar School per Stein JA at p 8. 18 The applicant's submission that the proposed conference use is ancillary to "tourist facilities" must fail in the absence of any existing consent for such use. However, the Court will consider whether a conference use is ancillary to the approved use of a motel.

Is the proposed use for conferences ancillary to a motel use?

19 The determination of this question requires the Court to make a number of findings. Such findings include whether there is a use which subserves the other, and if so "which of the multiple purposes is dominant": see Foodbarn Pty Limited and Others v Solicitor-General (1975) 32 LGRA 157 per Glass JA at p 161. Such an assessment requires a consideration of the facts. In Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 at p 409 Meagher JA said:- Notwithstanding the principles laid down in Foodbarn , it does not follow that a use which can be said to be ancillary to another use is thereby automatically preluded from being an independent use of the land. It is a question of fact and degree in all the circumstances of the case whether such a result ensues or not.

His Honour also observed:- But when one use of the land is by reason of its nature and extent capable of being an independent use it is not deprived of that quality because it is "ancillary to", or related to, or interdependent with, another use. 20 There are insufficient facts to enable the Court to make judgment whether a conference use could be found to be ancillary to the approved use of a "motel". The Court does not accept that the lodgement of a development application by the applicant for such use thereby conclusively determines that the conference use is separate and not ancillary to an approved use. Evidence detailing the nature and extent of the conference use with the motel and restaurant is required before the Court can determine whether the conference use is ancillary to the motel use.

Educational establishment 21 The submission by the applicant that the use comprises an "educational establishment" is not supported by any evidence. Accordingly, there are no facts upon which the Court can conclude that the proposed use constitutes an "educational establishment" and would therefore be a permissible use.

Conference facility as "commercial premises" 22 In Warringah Shire Council v Jennings Group Ltd (1992) 75 LGRA 402 Cripps JA at p 411 determined that "commercial premises" as used in the Warringah Local Environmental Plan included all commercial uses "except those commercial premises elsewhere specifically defined." In this instance, "commercial premises" contained in the Model Provisions includes all commercial purposes except those commercial purposes "elsewhere specifically defined". 23 The applicant's proposed use of a conference facility constitutes "commercial premises" since the definitions of the only possible alternative uses of "tourist facilities", "motel" and "educational establishment" are not satisfied. 24 Column IV of the table in cl 10B of the LEP renders "commercial premises" a prohibited use in the Rural C zone. Accordingly the applicant's proposed use for conferences is prohibited as a separate use. Whether such use is ancillary to the approved use of "motel" is a matter which can only be determined following a hearing of the appropriate evidence.

Answer to question of law 25 The Court finds that the proposed conference facility properly characterised is "commercial premises" and is prohibited in the "RURAL (c) Rural "C"" zone pursuant to the Lake Macquarie Environmental Plan 1984. Orders 26 The Court orders that:-

1. The cost of this application be reserved;
2. The exhibits be returned.

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