Characterisation of the development
25The Club submits that its proposed accommodation facility should not be categorised as a "motel" and is therefore permissible with development. It contends that its development is for the purpose of a "club" within the meaning of the LEP, either because it is club development in itself or is ancillary to the use of land for the purpose of a club. Alternatively, it is contended that the purpose of its development should be characterised as "club related accommodation". As such, it is within the innominate category of development referred to in the development control table for the Residential 2(a1) zone and is thereby permissible.
26The principles by which development is to be categorised are not in dispute between the parties. The law has, in recent years, been summarised by Preston CJ in Chamwell v Strathfield City Council [2007] NSWLEC 114; (2007) 151 LGERA 400. In essence, it is necessary to determine the purpose of the proposed land use, that purpose being informed by determining the end to which the land is to be used should the proposed development proceed ( Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529 at 535).
27In support of its submissions directed to permissibility, the applicant points to the integrated operation of the accommodation facility with the activities and facilities presently offered by the Club. It identifies
(i) the single ownership of the Site on which both major buildings and the activities within them will be conducted;
(ii) the employment by the Club of those involved in the management and operation of the facility on behalf of the Club;
(iii) the location of the reception facility within the existing Club building, at least during Club trading hours;
(iv) the intention that the accommodation facility be included within the premises to be licensed under the Registered Clubs Act ;
(v) the restriction of use of the accommodation facility to club members, including temporary club members; and
(vi) the availability to guests staying in the accommodation facility of the dining, conference and function facilities available within the existing club building
as all being relevant to the compendious description of all development, present and proposed, as use for the purpose of a club.
28In essence, these same matters are relied upon by the applicant to contend that while the use of the new building is to provide temporary or short-term accommodation, its purpose is subordinate to that of the Club. As an ancillary facility, the "club" categorisation remains apposite.
29The applicant seeks support for its contention that the accommodation facility may be regarded as part of the Club, when included in the premises registered under the Registered Clubs Act , in observations made by Talbot J in Swansea RSL Club and Rosecorp Pty Ltd v Council of the City of Lake Macquarie [2005] NSWLEC 755. One of the issues that his Honour was asked to determine in that case was whether a building containing a number of residential units was ancillary to the use of land for the purpose of a club registered under the Registered Clubs Act . Ultimately, his Honour did not determine the issue. However, having observed that the provision of living accommodation appeared to be "antipathetic to the manner in which it is expected a club will be conducted" (at [61]), his Honour continued:
"[62] Nevertheless, I am unable to fathom any reason which would prohibit the club from obtaining a certificate of registration in respect of the whole development. Ultimately it may not be successful in obtaining a certificate of registration but I am not persuaded that there is an underlying impediment, statutory or otherwise, to the making of an application to the Licensing Court supported by the appropriate plans on the basis that the whole of the premises are registered as a club. I find myself in the difficult position of not being able to totally discount the prospect that registration could be obtained."
30I am not convinced that the observations made by Talbot J necessarily support the applicant's submissions. The capacity to have the premises registered under the Registered Clubs Act , should that eventuate, may be one thing but it does not determine the purpose of use under planning law. The fact that there may be some synergy, at least at the management level, between the Club's present operations and its intended accommodation facility, coupled with registration under the Registered Clubs Act , does not determine the purpose of use of the proposed facility under the LEP, the statutory force of which is founded in the EPA Act. In that regard, the observations of Gleeson CJ in Woollahra Municipal Council v Minister for the Environment (1991) 23 NSWLR 710 are apposite. There, his Honour said (at 714):
"In the context of planning law, a statement of the purpose for which land is being used is a description or characterisation of what is being done with, or upon, the land, not an account of the motives of the person involved in that activity. The question in the present case is whether the use to which the land is being put, which is to be identified by reference to the nature of the activity being conducted upon it, is a use for a purpose authorised by the Act."
31In support of its alternate submission that the purpose of the proposed development falls into an innominate category of development that is permissible according to the development control table and described as "club related accommodation", reference is made to the decision of the Court of Appeal in Macquarie International Health Clinic Pty Ltd v University of Sydney (1998) 98 LGERA 218. In that case, the Court of Appeal determined that a facility to establish a teaching hospital within the medical precinct of the University of Sydney campus should properly be categorised as "teaching hospital" rather than for the purpose of a "hospital" itself or for the purpose of "education". The Court there determined that the application involved two purposes that were so inextricably bound that the single purpose of "teaching hospital" was the appropriate categorisation. By analogy, the applicant submitted that the intermingling of the present use of the Club Site for its Club use and the proposed additional use for accommodation resulted in a separate or "hybrid" use for the purpose of club related accommodation.
32I have concluded that the applicant's submissions should not be accepted. There are a number of reasons for this conclusion. First, the scale of the proposed accommodation facility itself speaks against the applicant's contentions. A building of four storeys having the layout and dimensions earlier described and providing temporary or short-term accommodation in 133 rooms does, by its very description, meet the definition of "motel" as contained in the LEP. The fact that the building will be located on the same site as the Club building does not detract from this conclusion. Planning controls imposed in an instrument made under the provisions of the EPA Act are directed to land use, not land title.
33Further, I do not find as persuasive the argument directed to limitation of use of the accommodation facility to club members. It can reasonably be concluded that a high percentage of those who would seek to use the new facility for overnight or short-term stays are likely to reside more than five kilometres from the Site. Such persons, if not already club members, are unlikely to be refused temporary club membership. They would therefore be entitled to use the accommodation facility.
34There was no evidence to suggest that club members, temporary or permanent, would be entitled to enjoy the accommodation facility without paying so to do. The privilege of membership did not carry with it the right to use the facility without charge. I infer that the majority of those likely to use the accommodation facility would be persons seeking temporary membership for the purpose of so doing and from whom an appropriate fee would be received.
35The fact that the Club will employ the staff responsible for management of the facility does not alter the purpose for which the facility is used. Employment by a single employer does not determine the planning purpose of diverse activities in which that single employer may be engaged. A single employer who uses a building for the purpose of a warehouse and, either in a section of that building or in an adjacent building, operates a retail shop does not, by reason of being a single entity, deny the categorisation of his business as having two planning purposes.
36Likewise, the fact that for the greater part of each day the reception area within the existing club building would also provide the reception service for the accommodation facility does not impinge upon the purpose for which the latter facility is used. It must be remembered that the accommodation building is configured with a separate reception area which, according to the Club's application, will be used for that purpose "after hours". It is further to be noticed that apart from being received in the reception area, whether within the existing Club building or within the proposed accommodation building, there is no necessity for an accommodation guest to make any use of the existing Club building or the facilities that it offers.
37Against the background of these considerations, it is appropriate to return to the application of principle. As Preston CJ observed in Chamwell (at [45]), when characterising development, it is necessary to do so "in a common sense and practical way". Unlike the basement carpark being considered in Chamwell , where the applicant unsuccessfully argued that it was an independent purpose from that of the supermarket for which it was to provide car parking accommodation, the use of the accommodation building in the present case is not so inextricably bound to the use of the Club that it must be seen, for planning purposes, as subordinate to and not independent of the use for the purpose of the Club. Moreover, for the reasons I have given, particularly the size of the proposed building and the number of accommodation rooms it will contain, the application of a practical and common sense approach clearly favours the determination that the purpose for which the new building is to be used is as a "motel" within the meaning of the LEP.
38The task of characterisation must be undertaken with the specificity of the LEP firmly in mind. It clearly required that a facility falling within the definition of "motel" should not be located on land within the Residential 2(a1) zone. The purpose of the instrument would be frustrated if too liberal an approach was taken to the categorisation of development that, on its face, fell clearly within the definition of a nominated category of prohibited development.
39In formulating the practical and common sense approach to categorisation, Preston CJ made reference to the decision of the Court of Appeal in Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404. The oft-quoted passage from the judgment of Meagher JA in that case is, both in fact and in principle, appropriate to be applied in the present case. His Honour said (at 409):
"Notwithstanding the principles laid down down in Foodbarn , it does not follow that a use which can be said to be ancillary to another use is thereby automatically precluded 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. When a resident uses his land to park his motor car at his house, he is no doubt not conducting an independent use of car parking; when an employer installs at his factory a canteen for his workers, no doubt he is not conducting an independent use of running a restaurant; ... . 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. If a book publisher opens a sales room at his publishing house to sell his products, the selling of books is an independent use although ancillary to the use of publishing."
40In the present case, a commonality of interests between the Club's activities as a "club", within the meaning of the LEP, and the operation of the proposed accommodation facility can be acknowledged. It is the nature and extent of the latter activity, rendering it capable of independent use, that identifies it as a separate planning purpose. As has already been illustrated in the judgment of Meagher JA in Baulkham Hills v O'Donnell , the fact that on the same premises one can conduct activities that have two planning purposes is well known in the law. So much is also exemplified in the seminal decision of Glass JA in Foodbarn v Solicitor General (1975) 32 LGRA 157 where his Honour said (at 161):
"Where the whole of the premises is used for two or more purposes none of which subserves the others, it is, in my opinion, irrelevant to inquire which of the multiple purposes is dominant. If any one purpose operating in a way which is independent and not merely incidental to other purposes is prohibited, it is immaterial that it may be overshadowed by the others whether in terms of income generated, space occupied or ratio of staff engaged. The ordinance is nonetheless being disobeyed."
Adopting the language used by Glass JA, it cannot be said in the present case that the proposed accommodation facility subserves the use of the Site for the purposes of a club, even if it is to be regarded as "ancillary" to or interdependent with the club purpose. The analogy of the book publisher and bookshop given by Meagher JA is instructive in the present case.
41There is a further matter to be noticed, referable to the applicant's alternate argument that the proposed purpose of use of the Site should be considered innominate in the context of permissible activities in the land use table to the LEP. In Abret Pty Ltd v Wingecaribee Shire Council [2011] NSWCA 107, Beazley JA observed (Campbell JA and Handley AJA agreeing), the fact that a use is not listed as prohibited in a development control table does not mean that it is permissible with consent (at [62]). Her Honour continued by indicating that in all cases it was necessary to categorise the use so that, if the purpose of the use was otherwise controlled under the LEP, that proposed use must be subject to the constraints upon it expressed in the planning instrument. Such a constraint may be one of prohibition.
42Applying the reasoning in Abret , there is nothing that identifies the proposed accommodation building as "club related accommodation" other than the label assigned to it by the applicant. Accepting that the development is intended to be used so that the accommodation provided is for members of the Club, the purpose nonetheless remains that of providing for "temporary or short-term accommodation of travellers or the general public", thereby engaging the prohibited purpose of a "motel".
43For the reasons that I have given, the use of the proposed accommodation building is for a purpose that is independent of the present use of the Site for the purpose of the Club. That which is proposed is for a motel and is therefore prohibited development under the provisions of the LEP. Development consent must be refused.