Osmotherly v Baulkham Hills Shire Council

CASES CITED: Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 Sansom v Port Stephens Council [2006] NSWLEC 475

APPLICANT Mr P. Larkham, barrister Instructed by John Simpson & Co. LEGAL REPRESENTATIVES:

RESPONDENT Mr A. Galasso, SC Instructed by Mr C. Winn, solicitor

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11044 of 2007 Darren John Osmotherly and Kellianne Osmotherly v Baulkham Hills Shire Council

JUDGMENT Introduction 1 This appeal involves a development application seeking consent to operate a tourist facility mainly utilising existing buildings and the construction of a new dwelling house on land at 766 River Road, Lower Portland. More particularly the tourist facility involves houseboat rental, a restaurant, a take-away food shop/kiosk, and various associated facilities including an on-site sewage treatment plant.

2 The site comprises lot 8 DP 816860 and has an area of 6,120 square metres. It is divided by River Road: the southern portion with a northern frontage to the river road is to be utilised for the proposed dwelling house; the remainder of the site that has a southern frontage to River Road and a northern frontage to the Hawkesbury River is to be utilised for the tourist facility.

3 The site is situated in the locality known as Lower Portland, where the Hawkesbury River meets the Colo River. It is predominantly rural-residential in nature.

Planning controls 4 The site of the application is subject to the provisions of the Baulkham Hills Shire Council Local Environmental Plan 2005. Pursuant to the zoning map and the land use table in clause 13 of the LEP the house site (as well as adjoining lands to the west and east) is zoned 2(c) Residential - Tourist Village and the proposed dwelling house is permissible with development consent. The tourist facility site is zoned 1(b) Rural wherein a tourist facility as defined is permissible with development consent. Also, a restaurant is permissible with development consent but a shop is prohibited. Advertising and public submissions 5 The development application was advertised on three separate occasions resulting in two supporting and four objecting submissions being received. Matters of concern expressed in the letters of objection include: o Adverse impacts on local rural/residential amenity resulting from boat and vehicular traffic generated by the development especially at night. o Adverse impacts on local rural/residential amenity resulting from excessive noise, light overspill and inappropriate patron behaviour associated with the development. o Unresolved wastewater and sewage disposal aspects and petroleum storage. o Likely continuing inappropriate use of the site for accommodation without the approval of the council. o The restaurant presently seats 50 people and this is far too large. o The take-away food shop is likely to continue to generate considerable boat traffic and congestion. o The applicant is likely to disregard any conditions of consent. 6 The letters in support indicate that the development will provide much-needed facility on the banks of the river. Expert evidence 7 On behalf of the respondent Council expert evidence was provided by: Mr C Young (town planning), Mr A Brown (building surveyor) and Mr D Griffney (environmental health).

8 On behalf of the applicant expert evidence was given by: Mr P Hurley (town planning) Mr T. Myers (building surveyor), Mr Stephens (acoustics), Mr T. Fiander (engineering) and Mr T. Hall (engineering). Council's contentions 9 The council's statement of contentions contains the following essential reasons for refusal of the development application: o Insufficient information to properly assess the development and its impact, o Overdevelopment of the site and adverse impacts on the locality, o Adverse impacts on the Hawkesbury River, o Excessive and inappropriate signage, o Unsuitability of the site for a tourist facility, o Objections from adjoining/surrounding residents. 10 As the hearing proceeded these contentions devolved (as a result of modifications to the application and agreed conditions of consent) to the following essential issues: 1. Whether the proposed kiosk comprises prohibited development and if it is permissible whether it would adversely affect the amenity of the neighbourhood. 2. Whether the proposed private courtyard adjacent to the restaurant should be permitted. Tourist facility - permissibility of take away food shop/kiosk 11 The applicant contends that the proposed take away food shop/kiosk falls within the definition of tourist facility and the respondent says that it does not.

12 I understand that the kiosk is to sell take-away foods, including pizzas as well as sundry items such as fishing tackle and bait. According to evidence given by residents the kiosk will (as it has done in the past), if approved, continue to sell take-away food not only to tourists but also to local residents. For the purposes of preparing takeaway food the kiosk is to utilise the restaurant's kitchen.

13 Tourist facility is defined in clause 5 of the LEP as follows: Tourist facility means an establishment providing facilities for holiday accommodation or recreation, and may include a boat shed, boat landing facilities, camping ground, caravan park, holiday cabins, hotel, house boat, marina, motel, playground, restaurant, water sport facilities or a club used in conjunction with any such activity. 14 The proposed restaurant, the houseboat and boat landing facilities are land uses that are specifically identified within the definition of tourist facility. On this basis the proposal could be considered to be an establishment providing facilities for recreation and possibly even for accommodation if the houseboats were considered to comprise accommodation. Hence these land uses comprise a tourist facility and are permissible as such .

15 The several specifically identified land uses in the definition of tourist facility are not inclusive and there are likely to be others . Plainly, whilst the kiosk is or is part of an establishment, it does not comprise accommodation, hence the question arises: is it a facility for recreation within the meaning of the definition?

16 The respondent submits that the kiosk can be best described as a shop whether or not it sells food or non-food products. In this context I agree that it is an independent use even though it is, in part, interdependent with another use, in this case the restaurant. (See Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404.) The fact that it shares the restaurant's kitchen does not mean it is the same land use. This conclusion is reinforced when the definition of restaurant is taken into account: Restaurant means a building or place the principal purpose of which is the provision of food to people for consumption on the premises. 17 By not providing principally for the provision of food to people for consumption on the premises a take-away food shop where the food is consumed elsewhere must be something else. A take-away food shop is not defined in the LEP but a shop is defined as follows: Shop means a building or place used for the purpose of selling, whether by retail or auction, or hiring of, or displaying for the purpose of the selling or hiring of, items (whether goods or materials), but does not include a building or place elsewhere specifically defined in this clause. 18 Plainly, if the kiosk is not a tourist facility (or some other land-use that I am not aware of), it must be a shop, being a building or place that sells goods. As already indicated if it is a shop, it is prohibited and the application must be refused.

19 As indicated above the kiosk has, and can reasonably be expected in the future to provide takeaway food for tourists as well as for residents and one can reasonably anticipate that the restaurant would cater for a similar clientele. However I do not accept that this is the basis for determining the question of whether the kiosk is a tourist facility. Similarly, I do not accept that if it were a tourist facility, its use by local residents as distinct from tourists or non-residents would make any difference.

20 In addition, it seems to me that the definition of tourist facility, by reference to the identified land-use examples, encompass activities involving accommodation or recreation that take place at, and as part of the relevant establishment. For example the use of a restaurant involves the purchase and consumption of a meal on the premises typically as a form of recreation. Conversely, with the kiosk, the food would be purchased on the premises and eaten somewhere else rather than within the facility. 21 This approach is consistent with that taken by Pain J. in Sansom v Port Stephens Council [2006] NSWLEC 475 where she dealt with an almost and relevantly identical definition of tourist facility. In her judgment she found in effect that that the definition requires that tourist recreation is intended to take place at the tourist facility itself.

22 Whilst not determinative of the question, a broader understanding of the arrangement or concept of zones in the LEP provides some assistance. As indicated above, part of the site is included in the 2(c) (Tourist Village) zone. The objectives of the 2(c) zone include the provision of tourist-orientated activities whilst not adversely affecting the living environment of neighbours. In the zone, recreation facilities and shops are permissible with consent, an indication that there is a difference between these two land uses. The definition of shop is referred to above. A recreation facility is defined as: Recreation facility means a building or place used for sporting activities, recreation or leisure activities, whether or not operated for the purpose of gain but, in the Table to clause 13 (ie the Table of land use zones), does not include a building or place elsewhere specifically defined in this clause (ie Clause 5 - Definitions). 23 This definition has the effect of excluding shops from a recreation facility and reinforces the regime in the 1(b) zone that permits a tourist facility (that includes in effect a recreation facility), but prohibits shops as defined.

24 I have thus decided that the kiosk is not a tourist facility and must therefore be a shop. It is therefore prohibited.

25 There is another possible interpretation of the definition of tourist facility. This requires that the tourist facility, being an establishment providing facilities for holiday accommodation or recreation to be a principal land-use and that the other land uses (boat shed, boat landing facilities etc) can only be included if they are used in conjunction with such principal land-use. For example a maritime museum could be a principal land-use that has an associated boat shed and boat landing facilities. Similarly a hotel could be a principal land-use that has an associated playground and water sport facilities. 26 In this proposal the main land uses comprise the restaurant and the houseboat rental facility but by reference to the definition these are the kind of activities that are required be used in conjunction with a principal activity. This would appear to be contrary to what the definition requires. Hence the proposed kiosk must be a shop because there is no principal activity for it to be used in conjunction with. Takeaway food shop/kiosk - merits 27 In the above circumstances it is not necessary to decide the question of whether the kiosk would, on its merits be satisfactory but I nevertheless make a number of observations.

28 The kiosk is likely to be used not only by tourists who might come to the it on foot, by car or by boat but also by local residents. There was no evidence that revealed which of these two categories of customers is likely to predominate although, taking into account the existing population in the locality there is unlikely to be a sufficient market/population by itself to sustain the kiosk therefore it must be tourist oriented. However there would be no practical way of conditioning it so that only tourists would use it. 29 Subject to appropriate conditions of consent (including a trial period), the two town planners were not concerned about the restaurant but they disagreed in relation to the kiosk. Mr Young was concerned that the take-away food facility had the potential to cause the greatest impact on the amenity of the area considering traffic volumes, movements and parking. Mr Hurley did not think it this would be significant.

30 Despite resident's concerns as to the past behavior of patrons/customers using the restaurant and the kiosk, I would have been satisfied, subject to the proposed conditions of consent (including a trial period, hours of operation and the plan of management) that approval of the kiosk could have been granted. Of course if the trial period resulted in an unsatisfactory outcome then it may need to be modified or discontinued.

31 I have reached this conclusion also taking into account the likelihood that the majority of take-away food customers would attend the site by boat and that expert evidence of possible noise impacts indicates this not to be of any determinative significance. The courtyard - merits 32 The plans of the proposal show a private courtyard area adjacent to the restaurant. This courtyard already exists. It is proposed that the development's owners who are to reside in the proposed dwelling house will use the courtyard from time to time. Mr Hurley explained that the courtyard will provide the residents with a separate area that is distinguished from the restaurant.

33 Mr Young is concerned that this courtyard may, given its close proximity, be utilised as part of the restaurant to extend its capacity. Its distance from the proposed dwelling house is also of concern. 34 I have no concerns about the proposed private courtyard if it is to be used for private purposes. Also if it is used for restaurant purposes this would be contrary to the conditions of consent. I have therefore decided to include in the conditions of consent the applicant's condition facilitating the retention of the courtyard with a further condition that limits its use to private, non-commercial purposes. Conclusion 35 In the circumstances I have decided that the appeal should be upheld and conditional development consent (excluding the take-away food shop/kiosk) granted. The conditions will be in accordance with those in Exhibit 7 including the agreed amendments and as further amended to reflect this decision.

      T A Bly
      Commissioner of the Court
      ljr

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