The appeal against the order dismissing the application
16 The appellants were represented in the Land and Environment Court. In this Court they were not represented. They filed voluminous written submissions, and the first appellant made oral submissions. There was a deal of repetition, and the submissions were not always easy to understand. I have sought to capture the substance of the appellants' reasons for challenging the judge's order.
17 The appellants' primary submission, a constant theme in what they said, was to the effect that the zoning table prohibited development for use as a club and the Club was a club, and was a club even though it provided recreational facilities, so that the club car park was prohibited because it was ancillary to a prohibited use. This faced the difficulty that the definition of "club" in the Model Provisions was "a building used by persons associated, or by a body incorporated, for … sporting, athletic or other lawful purposes" (emphasis added). The appellants said that the definition did not mean that the combination of the clubhouse and the golf course and bowling green was not a club.
18 The submission should not be accepted. By force of the definition, for the purposes of the LEP "club" was not the same as the Club. The prohibited use was confined to the clubhouse, and the judge's reasoning was correct.
19 The appellants said that their submission was particularly supported by Berowra RSL Community and Bowling Club Ltd v Hornsby Shire Council [2000] NSWLEC 243; (2000) 114 LGERA 345. The zoning in that case permitted development for the purposes of "recreation areas" and "recreation facilities" but prohibited development for the purpose of "registered clubs". It was held that the development was prohibited because the Berowra RSL was a registered club, even though the use of the land as a recreational bowling club fell within the definition of "recreational areas". This does not support the appellants. There was no equivalent in the present case of the prohibition because the Berowra Club was a registered club; the prohibition was what was in issue.
20 The appellants' second submission was to the effect that the use of the club car park was associated with the independent (prohibited) use for the purpose of a club, and so itself prohibited. While not clearly brought out, for the purposes of the submission "club" should be taken to have meant use confined to the clubhouse. The appellants cited from Baulkham Hills Shire Council v O'Donnell (1990) 69 LGERA 404 at 409-10 per Meagher JA -
"When one use of 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."
21 If there are two or more purposes neither of which subserves the other, and one which is independent and not merely incidental to other purposes is prohibited, the prohibition has effect: Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 at 161 per Glass JA. Independent use is a question of fact and degree. The judge said pithily at [14], "The raison d'être for the existence of the clubhouse is the golf course and the needs of golfers". The evidence of Mr Manders amply founded his Honour's conclusion that the use of the clubhouse was ancillary to the dominant purpose of playing golf or bowls, so that implicitly it was not an independent use. No error has been shown in that conclusion.
22 The appellants relied on Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; (2007) 151 LGERA 400. In that case the cark park and driveways and a circulation area in part served permissible residential units and in part served shops including a prohibited supermarket. It was held that these parts of the development "served the end of enabling the supermarket to be carried on … and that purpose imparts to the land on which those uses are pursued the character of shop, including the supermarket" (at [35]). The case does not assist the appellants. Following its language, the club car park served an end, but the end was not the prohibited use for the purpose of a club.
23 The appellant's submissions included that the judge should not have accepted Mr Mander's evidence of usage of the existing car park. The judge said at [13] -
"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."
24 The appellants submitted to the effect that looking out the window was insufficient for Mr Manders reliably to observe predominant use of the existing car park. Mr Manders' observations were not just from looking out the window, and in my opinion the judge was entitled to accept him in this respect.
25 The appellants' third submission was to the effect that the use of the clubhouse for functions having no relation to playing golf or bowls was an independent use of the golf course land, it was commercial use and the clubhouse was commercial premises, and the proposed use of the club car park would be ancillary to the use for the purpose of commercial premises and so prohibited.
26 The judge held otherwise, see [13] above. The usage of the existing car park would not ordinarily be a strong guide to whether, as well as the use of the clubhouse by members and guests attending for golf or bowls related activities, there was an independent commercial use for the functions not related to playing golf or bowls. However, it can properly be inferred that the revenue from the functions supported conduct of the Club as a golf and bowls club, so that the non-related functions did have a connection with the conduct of the Club, and the evidence was not explicit as to the frequency of the non-related functions so as to assist in establishing an independent commercial use. Particularly when counsel for the appellants did not seek, in her cross-examination of Mr Manders or otherwise, to quantify the extent of usage for functions not related to playing golf or bowls. I do not think error has been shown in the judge's conclusion that the usage was subservient; in the light of his reasons as a whole, meaning not an independent use.
27 At times it appeared that there was a fourth submission to the effect that the proposed use club car park on the land was an independent use for the purpose of a club or for the purpose of commercial premises. It does not seem that a submission to that effect was made in the Land and Environment Court. To the contrary, in order to meet the argument for an innominate use the appellants there submitted that the club car park was subservient to the use of the clubhouse. Its use was in my view an ancillary use, but if it could be characterised as an independent use, it would not be for the purpose of a club or commercial premises. It would be a car park for the Club.
28 As I have said, I have sought to distil the substance of the appellants' reasons for challenging the judge's order. Much else was said, in the written submissions and orally, and the appellants referred to other cases. I have endeavoured to understand and take account of all the submissions, but I do not think the appellants' appeal was advanced beyond the reasons I have sought to describe. In my opinion, their challenge has not been made good.