Peters & Anor v Manly Municipal Council & Anor

CATCHWORDS: DEVELOPMENT CONSENT - appellants claimed invalid because development for a prohibited purpose - car park for golf club on land across the road from the Club - held permitted purpose because ancillary to use of golf club land as recreation area - consideration of independent and ancillary usage - no error shown in judge's conclusion - COSTS - judge made order for costs against appellants - reasons for challenging costs order outlined - no substantial ground demonstrated - leave to appeal against costs order refused.

CASES CITED: Berowra RSL Community and Bowling Club Ltd v Hornsby Shire Council [2000] NSWLEC 243; (200) 114 LGERA 345; Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; (2007) 151 LGERA 400.

Juliet Peters and Michael Voyias - Appellants PARTIES: Manly Municipal Council - First Respondent Manly Golf Club Ltd - Second Respondent

First appellant in person COUNSEL: M Craig QC & A Pickles - First Respondent I Hemmings & S Tzouganatos - Second Respondent

SOLICITORS: Home Wilkinson Lowry - First Respondent Thomson Playford - Second Respondent

LOWER COURT JURISDICTION: Land & Environment Court

LOWER COURT DATE OF DECISION: 1 November 2006

LOWER COURT MEDIUM NEUTRAL CITATION: Peters and Anor v Manly Municipal Council & Anor [2006] NSWLEC 676

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40766/06 L & E 41145/05

GILES JA HANDLEY AJA HISLOP J

Tuesday 4 December 2007 PETERS & ANOR v MANLY MUNICIPAL COUNCIL & ANOR Judgment 1 GILES JA: Manly Golf Club ("the Club") is on the northern side of Balgowlah Road, Manly. Its land occupies 46 or 47 hectares, and on it are an 18 hole golf course, a bowling green and a clubhouse ("the golf course land"). 2 The Club owns land on the southern side of Balgowlah Road, directly opposite the clubhouse ("the land"). The land was used with appropriate development consent as a car park for members. On 4 July 2005 Manly Municipal Council ("the Council") granted to the Club development consent ("the consent") for the erection on the land of a residential apartment building comprising sixteen residential units above an underground car park, with thirty one-spaces in the upper level of the car park for the residents and a further one hundred and thirty spaces in the lower levels for use by members and others attending the Club ("the club car park"). 3 In proceedings brought in the Land and Environment Court the appellants contended that the consent, alternatively so much of it as related to the club car park, was invalid. Lloyd J dismissed their application and ordered that they pay the costs of the respondents. 4 The appellants appealed against the order dismissing their application and against the costs order. Leave to appeal was required for the appeal against the costs order: Land and Environment Court Act 1979, s 58(3)(c).

The utility of the appeal against the order dismissing the application 5 In the course of the appellants' submissions as to the costs order we were informed that the Club had decided not to undertake the development of the land for which the consent had been granted. The Club had been granted a subsequent development consent which did not involve its use of the land for car parking, and was in the course of building car parking facilities on the golf course land. 6 Neither respondent submitted that the appeal should not be entertained because it lacked utility. The challenged consent would remain in force until it lapsed, and conceivably changed circumstances could move the Club to take it up. Further, the costs order was plainly a driving force in the appeal, and substantive success could relieve the appellants of it. Although confined, there is utility.

The judge's decision 7 The golf course land was zoned No 6 - Open Space under Manly Local Environmental Plan 1998 ("the LEP"). The land was zoned No 2 - Residential Zone. In the case of land zoned No 2 - Residential Zone the table of prohibited development in the LEP included "clubs" and "commercial premises". Permissible development in accordance with the table included "recreation area". 8 The judge summarised as the competing positions that the appellants said that the club car park was for the purpose of a club or alternatively for the purpose of commercial premises, while the respondents said that the use of the clubhouse on the golf course land and the club car park on the land were incidental to the golfing and bowling activities at the Club and so for the purpose of a recreation area; alternatively, the respondents said that the innominate use of a car park was also permissible within the zone. 9 The LEP adopted the definitions of "club" and "commercial premises" in the Environmental Planning and Assessment Model Provisions 1980. They were - "' 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." 10 The LEP defined "recreational area" to mean - "(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." 11 The judge said at [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)?" 12 The judge held that the use of the club car park was neither ancillary to the use of a club nor ancillary to the use of commercial premises, but was ancillary to the use of a recreation area. 13 His Honour accepted the evidence of Mr K Manders, the Club's General Manager, which included that except for functions the vast majority of persons using the clubhouse used it to prepare for their game of golf or after playing golf, and there was very little use of the clubhouse by members or their guests which was not associated with the playing of golf. Functions were held for members once or twice a week, and as well the upper floor of the clubhouse was available for public use such as for weddings, seminars, real estate auctions, cultural functions, charity functions and sporting functions. Members of the public attending such functions could not, however, access the ground floor of the clubhouse, which was restricted to members and their guests. 14 As the term "club" as defined in the Model Provisions was confined to a building, in this case the clubhouse, his Honour considered that the use of the clubhouse was ancillary to the dominant purpose of playing golf or bowls and the proposed use of the club car park upon the land was also ancillary to that dominant purpose. Acknowledging that the clubhouse would be used for some functions having no relation to playing golf or bowls, his Honour said at [17] that - " … 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 guests attending for golf (or bowls) related activities." 15 His Honour held that in any event, assuming that the club car park was to be used to serve the prohibited use of a "club", it was permissible as an innominate use.

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.

The appeal against the costs order 29 The appellants had filed without leave a further amended notice of appeal containing additional grounds in relation to the costs order. They wished to rely on further evidence. The respondents objected. The appellants' submissions again were voluminous and not always easy to understand. 30 Since leave to appeal was required, the Court requested that the appellants state in point form their reasons for challenging the costs order. They did so, and the points were elaborated; to an extent, they overlapped. This enabled the Court to appreciate the intended reliance on further evidence. After hearing the appellants, the Court announced that leave to appeal in relation to the costs order should be refused and that it would give its reasons in due course. 31 The first point was that the appellants were misled by the Council "in considering that [the Club] was a club", later revised to the proposition that the appellants "came to court because we believed the decision of [the Council] was wrong based on the reasons they gave for the decision". The appellants said that the Council gave its decision on the basis of existing use rights, and they came to court because they believed that its decision on that basis was incorrect. 32 The point is ill-founded. Even if the Council did give its decision on the basis of existing use rights, points of defence filed three months before the hearing explicitly stated that the Club did not rely on existing use rights; but the appellants continued with their application. And it is not correct that the Council gave its decision on the basis of existing use rights. It is plain from the materials on which the appellants wished to rely, in particular the report of the Council's General Manager, Mr Henry Wong, that the Council granted the consent on the basis that car parking for the Club was a permissible use and that it was unnecessary to consider existing use rights. 33 The second point was that the proceedings in the Land and Environment Court were a waste of everybody's time because the application for development consent had not been made with the Club's consent. 34 From the submissions and the further evidence on which the appellants wished to rely, the factual foundation would not be made out. The grounds for invalidity of the consent on which the appellants relied in the Land and Environment Court did not include lack of owner's consent. It appears that they thought the development application had been made without the Club's consent because applying for the development consent had not been approved in general meeting but later the Club in general meeting resolved to proceed with the different development for which the subsequent development consent was granted. They referred to the absence of a Board power to sell the Club's land or buildings. However, and assuming that approval in general meeting had not been given, obtaining development consent is not selling land, and is not the same as proceeding with the development. The application for development consent was made with the consent of the Club expressed through the signature of Mr Smith as director. I do not think there would be an arguable case of lack of owner's consent. 35 In any event, invalidity of the consent for lack of owner's consent was not raised before the judge. The judge could not properly have held for costs purposes, contrary to his substantive decision, that the consent was invalid for that reason, and taken that into account in making his costs order. This point was not relevant to the judge's exercise of his discretion as to costs, and would provide no basis for error in the costs order. 36 The third point was that the appellants should not have to pay the costs "when judges have come to the same conclusion that we are making". The appellants instanced Berowra RSL Community and Bowling Club Ltd v Hornsby Shire Council and Chamwell Pty Ltd v Strathfield Council; their point was to the effect that their contention that the development consent was invalid was reasonably based. Since neither those nor the other cases on which the appellants relied were to the contrary of the judge's decision, this point does not avail the appellants. 37 The fourth point was that there was manifestly unreasonable behaviour by Mr Wong "in the way he presented the evidence to councillors in relation to his argument in a report he wrote that the development could legally go ahead". The appellants gave considerable attention to the conduct of Mr Wong. By unreasonable behaviour they meant advising councillors that the development could go ahead on the basis of existing use rights; it was not entirely clear whether they meant also failing to ensure that the application for development consent had the consent of the Club. If the first, as I have already indicated Mr Wong did not so advise. If the second, the development application had the Club's consent through the signature of Mr Smith. Nothing in the evidence on which the appellants wished to rely would establish unreasonable behaviour by Mr Wong in some manner contributing to the appellants bringing their proceedings. 38 The fifth point was that the Council and the Club had failed to uphold the law, in that they did not ensure that the application for development consent was made with the consent of the Club. The appellants submitted that it was the responsibility of the Council and the Club to uphold the law, and that if they had done so there would not have been occasion for the appellants to bring their proceedings. The causation argument may be questioned, but it does not matter. As I have said, absence of owner's consent was not raised in the Land and Environment Court, and costs are awarded according to the outcome of the issues litigated; even if factually well founded, which for the reasons I have given it was not, this point could not properly have borne upon the judge's exercise of his discretion. 39 Although not one of the points, the written submissions appeared also to suggest that the appellants should not have been ordered to pay costs because their proceedings were brought in the public interest. The appellants lived adjacent to the land. The public interest, as best I understand it, was the need to make the Council and the Club accountable for their unreasonable behaviour and failure to uphold the law, which for the reasons I have given I do not accept. I do not think that considerations of public interest litigation could properly bring a different costs order. 40 Underlying the points concerning lack of owner's consent was the appellants' assertion that in the Land and Environment Court they saw lack of owner's consent as going to costs and intended to rely on it for that purpose, but were unable to do so because the judge did not give them the opportunity to make submissions as to costs. This was a submission that they were denied procedural fairness in relation to the costs order, with possible wider application than to the point concerning lack of owner's consent. 41 The appellants were represented by their solicitor when the judge published his reasons and made orders. The costs order was unremarkable when the appellants had failed in the proceedings. It was open for the solicitor to ask the judge for an opportunity to make submissions as to why a different costs order should be made, as not uncommonly occurs. The solicitor did not, then or thereafter, ask for an opportunity. I do not think that the appellants were denied procedural fairness, but submissions to the effect of those outlined in this Court would not have provided any occasion for the judge to have made a different costs order. 42 Leave to appeal was refused because no substantial grounds for challenging the judge's costs order had been demonstrated.

1. Refuse leave to appeal against the costs order. 2. Appeal otherwise dismissed. 3. Appellants pay the respondents' costs. 44 HANDLEY AJA: I agree with Giles JA. 45 HISLOP J: I agree with Giles JA. **********

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