Sevenex Pty Limited v Blue Mountains City Council

Sevenex Pty Limited v Blue Mountains City Council - [2009] NSWLEC 1264 - NSWLEC 2009 case summary — Zoe

[12]

5 The council raises no issue with respect to the cafe and retail aspects of the proposal but contends that the koala and reptile exhibit and the Aboriginal Cultural Trail are prohibited uses. The short planning history 6 The site was deferred at the time of adoption of the Blue Mountains Local Environmental Plan 1991 (the LEP). The building was granted development consent dated 4 March 1993 by Blue Mountains City Council (the council). The use for which consent was granted in 1993 was rendered prohibited by virtue of the subsequent incorporation of the site into the Residential Bushland Conservation zone. Amendment 3 to the LEP (which amendment was made on 28 May 1993 after the council had granted development consent to the building) permitted development "for the purposes of a refreshment room and an arts and crafts gallery" The effect of Amendment 3 was to permit development on the site, also inconsistent with the Residential Bushland Conservation zone of the LEP, but did so on terms more restrictive than that approved in the development consent earlier in 1993. The issues 7 There are, in essence, three issues raised by the council that are in contention in these proceedings. These are: - Is the use of the proposed development in this application the same use as that for which development consent was granted in 1993 and thus permitted as an existing use (the general characterisation issue)? or - If it is not, is the use of the proposed development one that is permitted as a consequence of a combination of s 108 of the Environmental Planning and Assessment Act 1979 (the Act), cl 41 of the Environmental Planning and Assessment Regulation 2000 (the Regulation), and the Standard Instrument (Local Environmental Plan) Order 2006 (the Order) permitting a change of an existing commercial use to another commercial use (the statutory characterisation issue)? and - If either or both of these questions is answered in the affirmative, should, as a matter of discretion, the koala and reptile exhibit be granted development consent if I am not able to be satisfied that relevant licences pursuant to be Exhibited Animals Protection Act 1986 will be issued by the Department of Primary Industries?

[41]

35 On this issue of understanding how the word service should be understood in this limited town planning context, Mr Hale had provided a written advice to the applicant, in April 2009, and this advice had been provided by the applicant solicitor's to the council and formed part of the council's material tended in the proceedings. Mr Hale's submissions, in addition to traversing the range of statutory definitions from unrelated legislation discussed earlier was also consistent with his advice and can, conveniently, be summarised in the following extract from his advice as follows: 16. The use may be characterised as business premises because the building will be a building at which "a service is provided directly to members of the public on a regular basis". That service is a service of providing to members of the public access to view and study koalas in a secure, comfortable and aesthetically pleasing environment and also to be photographed with them and access to the Aboriginal Cultural Exhibit. 17. The word "service" and "services" are words of great width of meaning. One of the definitions of "service" in the Macquarie Dictionary is: " The supplying or supplier of any articles, commodities, etc, required or demanded " 18. The word "service" and the word "services" have been the subject of considerable judicial scrutiny but scrutiny as part of the statutory interpretation of the legislation in which the words appear. For example, Part IIIA of the Trade Practices Act 1975 (C'wealth) is concerned with access to services. Services is defined in s.4 of that Act in the broadest of terms as including "any rights ... benefits privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce " and which include "the rights, benefits, privileges of facilities that are, or are to be provided, granted or conferred under ... a contract for or in relation to ... the provision of or the use or enjoyment of facilities .for amusement, entertainment, recreation or instruction ". The proposed use as a Koala Exhibit and as an Aboriginal Cultural Exhibit would clearly come within that definition.

[42]

Obviously the definition of services under the Trade Practices Act does not assist in the proper construction of the word "services" under the Standard Instrument, except to the extent that the width of the definition of services under the Trade Practices Act is consistent with the width of the ordinary meaning of the word and the definition in the Macquarie Dictionary to which I have referred. 20. Unlike the Trade Practices Act the word "services" is not defined in the Standard Instrument. Its meaning and the meaning of service, therefore needs to be construed in the context of the Standard Instrument and having regard to meaning of the word as a matter of ordinary English. 21. That "business premises" is a definition of wide meaning is emphasised by the words "and may include, without limitation... " which appear in the definition. The word "service" as used in the Standard Instrument and in particular in the definition of business premises means the supply of something other than goods or products or other items for sale. The definition of retail premises directs attention to the sale or hiring of goods or materials. The definition of business premises is directed to the provision of services, namely something other than goods or materials. 22. This construction is supported by the following: (a) In the definitions of "building identification ... " and "signage" there is a distinction made between products and goods on the one hand and services on the other. (b) This distinction is also made in subclause (e) of the definition of "a service station" which draws the distinction between general merchandise and services. (c) The width of the term "service" or "services" is also emphasised by the wide variety of services referred to in the definitions in the Standard Instrument. For example, a service concerned with the provision of "lessons or coaching in, or providing for participation in a culture, recreational, religious or sporting activity": (see definition of childcare centre); services for boats (see definition of mariner); advisory services (see definition of exhibition village); health services (see definition of medical centre); sex services. 36 In addition, as part of the application to the council, supporting material was provided to the council by Ms Rachael Baker who appears, from the material, to be the putative curator of the koala and reptile exhibit. This material included a number of paragraphs under the heading introduction which are relevant, in my view, and a paragraph in her conclusion which is also relevant. Ms Baker did not provide a statement of evidence in the proceedings nor did she give oral evidence. She describes her understanding of the purposes of the exhibit in this document. The material from the supporting document provided to the council is in the following terms:

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Judgment (73 paragraphs)

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