Peters & Anor v Manly Municipal Council & Anor

KEY ISSUES: Judicial Review :- - validity of development consent - residential zoning - underground car park - characterisation of use - ancillary use - multiple uses - innominate use

LEGISLATION CITED: Manly Local Environmental Plan 1998 Environmental Planning and Assessment Model Provisions 1980

Argyropoulos v Canterbury Municipal Council (1988) 66 LGRA 202 ; Colgate Palmolive Pty Ltd v Leichhardt Council, NSWLEC, Talbot J, 8 October 1996, unreported; CASES CITED: Egan v Hawkesbury City Council (1993) 79 LGERA 321; Foodbarn Pty Ltd v Solicitor-General for New South Wales (1975) 32 LGRA 157; Ku-ring-gai Municipal Council v Geoffrey Twibill & Associates (1979) 39 LGRA 154; Wotton v Wingecarribee Shire Council (1989) 68 LGRA 38

APPLICANTS: K Rose (barrister) SOLICITORS: Sattler & Associates

FIRST RESPONDENT: LEGAL REPRESENTATIVES: M G Craig QC and A M Pickles (barrister) SOLICITORS: Abbott Tout

SECOND RESPONDENT: I J Hemmings (barrister) SOLICITORS: Thomson Playford

JUDGMENT:

• 10 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

PETERS & ANOR v MANLY MUNICIPAL COUNCIL & ANOR [2006] NSWLEC 676

JUDGMENT 1 HIS HONOUR: On 4 July 2005 the first respondent, Manly Municipal Council, granted development consent to the second respondent, Manly Golf Club, for the erection of a residential flat building at Nos. 87-95 Balgowlah Road, Manly, which is directly opposite the Club's clubhouse. The proposed development comprises 16 residential units above an underground car park. The car park will have an upper level with 31 spaces for the residential units. Below the residential car park there will be a further car park for 130 spaces for the Club. The Club's patrons will not have access to the residential car parking level and vice versa. 2 The applicants, Juliet Peters and Michael Voyias, seek a declaration that the development consent is invalid, or alternatively a declaration that so much of the consent that relates to the Club's car parking is invalid. The applicants also seek an injunction restraining the Club from acting upon the consent. The applicants' submission, reduced to its basis, is that a car park for the Club is prohibited in the relevant zone under the Manly Local Environmental Plan 1998 ("the LEP"). 3 The Club itself is located across the road on land that is Zone No. 6 - Open Space under the LEP. The development site, however, is within Zone No. 2 - Residential Zone. The applicants say that the development is for the purpose of either a "club" or, alternatively, for "commercial premises", both of which are prohibited development within the residential zone. The respondents say that the primary use of the car park will be for those persons playing golf or bowls, that the use of the clubhouse and the car park is incidental to those activities and is thus to be used for the purpose of a "recreation area" which is a permissible use in the residential zone. The respondents alternatively submit that the use is that of a "car park", which is an innominate use, also permissible in the zone. The planning controls 4 The relevant zoning in the LEP sets out the objectives of the zone, development that may be carried out without development consent, development that may be carried out with development consent, and development which is prohibited. In the case of Zone No. 2 - Residential Zone, the table of prohibited development includes "clubs" and "commercial premises". All development which does not fall within the table of prohibited development or the table of development without consent is thus permissible with consent. 5 The LEP adopts the definitions of a "club" and "commercial premises" in the Environmental Planning and Assessment Model Provisions 1980, which are as follows: " club " means a building used by persons associated, or by a body incorporated, for social, literary, political, sporting, athletic or other lawful purposes whether of the same or a different kind and whether or not the whole or part of such building is the premises of a club registered under the Registered Clubs Act, 1976;

" commercial premises " means a building or place used as an office or for business or commercial purposes, but does not include a building or place elsewhere specifically defined in this clause or a building or place used for a purpose elsewhere specifically defined in this clause;

6 A "recreation area", which is permissible within the residential zone is defined by the LEP as follows: Recreation area means: a) a children's playground. b) an area used for sporting activities or sporting facilities. c) an area used to provide facilities for recreational activities which promote the physical, cultural or intellectual welfare of persons within the community, being facilities provided by: (i) the Council, or (ii) a body of persons associated for the purposes of the physical, cultural or intellectual welfare of persons within the community, but does not include a race course or a showground. 7 The question for determination is how is the use to be categorised of that part of the development which comprises the car park for the Club? Is it ancillary to (a) the use of a "club" (which is prohibited) or (b) the use of "commercial premises" (which is also prohibited) or (c) the use of a "recreation area" (which is permissible)? Alternatively, is it a separate innominate use (which is permissible)?

The evidence 8 The basic facts, which come largely from the evidence by the Club's general manager, Mr K Manders, are not seriously disputed and may be summarised as follows. To the extent that there may be any dispute, I have no reason to doubt the evidence of Mr Manders.

(a) Manly Golf Club as presently constituted was formed on 15 June 1917. Its primary object, set out in its Memorandum of Association, is " to promote the game of golf and other athletic sports and pastimes ". The Club owns and manages an 18-hole golf course and a bowling green.

(b) As at 17 February 2006, the Club had 1,475 members, of which 1,134 were sports playing members being 1,094 golfers and 37 lawn bowlers. Of the remaining members, 71 were absentee/overseas members. The playing members comprised about 81.5% of the membership of the Club.

(c) In excess of 50,000 rounds of golf are played on the golf course per year. The average usage over the 12 months preceding 16 May 2006 was 1,097 rounds per week.

(d) The clubhouse is a heritage listed building which was built in 1924. Subject to (g) below, only members (including temporary members) and guests of permanent members may enter the Club's premises and use its facilities.

(e) Except for the use of the Club's premises for functions, the vast majority of persons using the clubhouse do so in order to prepare for their game of golf, or have played golf and are relaxing after their game. There is very little use of the clubhouse by members or their guests that is not associated with the playing of golf.

(f) The Club holds functions for members (including temporary members) and guests with about 80 to 100 attendees, usually once or twice a week.

(g) Apart from functions for members and guests, the upper floor of the clubhouse is available for public use, such as weddings, seminars, real estate auctions, cultural functions, charity functions and sporting functions. These functions can cater for up to 350 people. Members of the public attending such functions cannot, however, access the ground floor of the clubhouse which is restricted to members and their guests only. According to Mr Manders the number of car parking spaces required for 100 golfers would be at least twice those required for 100 function attendees as golfers generally arrive singly.

(h) There is an existing car park on the development site with spaces for about 110-112 cars. A sign at the entrance to the car park states: " Manly Golf Club members parking only ". This car park was the subject of a development consent granted by the council on 1 September 1995. The development consent described the development as simply " car park ". There is no legal challenge to the validity of that consent. The statement of environmental effects for the development stated that whilst the land is zoned residential, car parking as an independent use of land is a permissible use. The statement also noted that a golf course is permissible within such a zone and if the car parking is for golfers then that use is also permissible. I presume, therefore, that the consent was granted on the basis that the car park, not being a prohibited use, is a permissible use in the residential zone, whether it was a car park simpliciter or a car park for golfers.

Ancillary to a "club" 9 Ms K Rose, appearing for the applicants, submits that the Club's premises are a "club", being a clubhouse at Balgowlah Road, incorporated as an Australian public company and used for a variety of lawful purposes. Ms Rose submits that, in accordance with Egan v Hawkesbury City Council (1993) 79 LGERA 321, if the premises could be characterised in some other way, this is not intended to have the effect that it could be carried on, even with consent. Contending that the parking is ancillary to the use of the land as a club, Ms Rose seeks to establish that the grant of consent was unlawful. 10 Submitting that the dominant purpose of the clubhouse is as a "club", Ms Rose separates the indoor and outdoor areas of the Club. She contends that the use of the clubhouse is independent and separate from sports. While Ms Rose acknowledges that not all uses of the land to which the car parking is ancillary are prohibited, she submits that, based upon Foodbarn Pty Ltd v Solicitor-General for New South Wales (1975) 32 LGRA 157, as there are multiple purposes operating in an independent, not merely incidental, fashion and as one such purpose is prohibited, this impacts upon the entire grant of consent.

11 Correctly put, Ms Rose submits that there are multiple uses of the Club's land to which the proposed car park is ancillary. She submits that the uses are independent and not merely incidental to the use for golfing or bowls. As the use of the premises as a "club" is prohibited in the residential zone, she contends that this makes the grant of development consent invalid despite there being other uses which are not prohibited in the zone. 12 Mr M G Craig QC, appearing for the first respondent, submits that such a characterisation of the land is incorrect. He submits that part of the development consent that was granted was for a separate part of the car park for the use of golf club patrons utilising the golf course and facilities on adjacent land. Looking to the definition of "club" in the Model Provisions Mr Craig submits that it is clear that a "club" use is confined to a building. He contends that as a result the applicants must establish that the basement car park is to serve only those visiting the clubhouse building, not those utilising the land for the recreational and sporting facilities therein. 13 As noted in par [8] above, the evidence of Mr Manders is that playing members comprise approximately 81.5% of the membership of the Club. Mr Manders further indicates that from his regular observations of the golf course, the clubhouse and car park he has observed that the predominant use of the car park is by playing members and their guests. Under cross-examination Mr Manders admitted that due to his busy job he does not spend a lot of time looking out the window observing the patrons of the car park. However, as a result of his role and daily presence at the Club I believe that Mr Manders would have made sufficient observations to support this conclusion. 14 I agree with the submission of Mr Craig QC that the use of the clubhouse building is ancillary to the dominant purpose of the Club for the playing of golf. The raison d'etre for the existence of the clubhouse is the golf course and the needs of golfers. That is, as the use of the clubhouse is ancillary to the dominant purpose of the playing of golf so too the proposed car park is also ancillary to that dominant function. The use of the basement car park by members of the Club is not the use for a "club" as defined by the Model Provisions and as incorporated into the LEP. Golf courses are not prohibited in the residential zone. It follows that the use of the car park for parking by golfers is likewise not prohibited in the residential zone.

Ancillary to "commercial premises" 15 In the alternative, Ms Rose submits that there is another independent use of the clubhouse with part of the premises used as a function centre. It is not in dispute between the parties that part of the clubhouse is used for the conduct of functions which may have no relation to the game of golf. Ms Rose submits, therefore, that this is a purely commercial use, which is independent of the Club's activities, bringing the use under the definition of "commercial premises", which is also prohibited in the residential zone. Such function attendees are allowed to use the Club's car parking and, it is submitted, this is a significant use, as the advertised capacity for functions at the club is up to 350 people. 16 Mr Craig submits, however, that this is not an independent use of the land. Applying Foodbarn Pty Ltd v Solicitor-General for New South Wales, he submits that the use of the golf course and Club's land for functions is ancillary and incidental to the dominant purpose of the use of the land as a golf course and can be disregarded for the purpose of characterising the use of that land. 17 In my opinion, the fact the predominant users of the existing car park are playing members and guests suggests that the users of the proposed car park will likewise also be predominantly playing members and guests. It also suggests that the use of the clubhouse for functions is a subservient use which is ancillary to the dominant use by members and quests attending for golf (or bowls) related activities.

Ancillary use to a "recreation area" 18 Ms Rose submits that the Club is not a body associated for the "physical welfare of persons within the community" within the meaning of the definition of "recreation area". Arguing that the common theme of the purposes in the Memorandum of Association is golf, she contends that this is not for the welfare of anyone. She further submits that the phrase "persons within the community" has an element that the body in question has a public benefit aspect to it; it is her contention that as the Club has an exclusive membership it cannot satisfy this requirement. 19 Despite the careful and well-constructed argument put by Ms Rose, I find, however, in concurrence with Mr Craig's submissions that the Club fits squarely within the definition of "recreation area". The principal and dominant use of the Club's land is as a golf course. That is a sporting activity. The Club also operates a bowling green on its land. This is also a sporting activity. The Club's land is "an area used for sporting activities" within par (b) of the definition. 20 I am further persuaded by the council's submissions in relation to the use of the clubhouse building. Looking to the Memorandum of Association of the Manly Golf Club, the first object for which the Club is founded is, as noted in par [8] above, "to promote the game of golf and other athletic sports and pastimes." The clubhouse building clearly comes within this object - it can be seen as ancillary to the primary use of the land for "sporting activities" with the provision of change rooms and other such facilities which necessarily accompany the playing of a sport. I respectfully adopt Hemmings J's definition of "sporting facilities" in Wotton v Wingecarribee Shire Council (1989) 68 LGRA 38 (at 44):

"Sporting facilities" are not defined in the LEP but, in my opinion, include areas and buildings which promote the playing, viewing and administration of sport and must include land and buildings used as pavilions, change rooms, toilets, tennis courts, squash courts, club rooms, offices, shops, refreshment rooms and car parking. 21 Mr Craig further points out that the clubhouse does not exist in isolation and is therefore not an independent and separate use of the land, rather it is ancillary to the use of the land as a golf course. As noted above, playing members constitute approximately 81.5% of the membership of the Club. This makes clear that the dominant purpose for which the car parking is to be provided is to serve members of the Club who make use of the "recreation area", including the facilities in the clubhouse. I am thus satisfied that the Club's car parking included as part of the development consent is ancillary to the use of the premises as a "recreation area". Such a use is permissible within the residential zone and thereby the council validly granted the development consent.

Car park as an independent innominate use 22 Both respondents submit that, regardless of the characterisation of the dominant purpose of the adjacent land, car parking is permissible in the residential zone as an innominate use. The applicants disagree, arguing that the car park cannot be characterised as a separate innominate use as the Club's development application was for a car park "associated with the Manly Golf Club". Ms Rose argues, by reference to the decision of Talbot J in Colgate Palmolive Pty Ltd v Leichhardt Council, NSWLEC, 8 October 1996, unreported, that the car parking is intended to serve the Club and is subservient to that use. It is not necessary to resolve this question in the light of my finding that the car park is subservient to a "recreational area" which is permissible in the residential zone, or alternatively is subservient to a golf course which is also permissible in the residential zone. 23 Nevertheless, I am persuaded that, in the alternative, the consent to allow car parking for the Club is valid as an innominate permissible use. I shall assume, for the purpose of this argument, that the car park is to be used to serve a prohibited use of a club. In Argyropoulos v Canterbury Municipal Council (1988) 66 LGRA 202, Cripps J held that a permissible use (a road) remained nevertheless permissible in a residential area although its sole purpose was to serve a prohibited industrial use on adjoining industrial land. Similarly here, although the permissible use, a car park, is to serve a prohibited use on the adjoining land, it remains likewise permissible. I thus accept the respondents' submission.

24 The applicants have been unable to show that the development consent is unlawful. It follows that their application must be dismissed with costs. 25 I make the following formal orders: (1) The application is dismissed. (2) The applicants must pay the respondents' costs. (3) The exhibits may be returned. I hereby certify that the preceding 25 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

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