Sevenex Pty Limited v Blue Mountains City Council

APPLICANT Mr T Hale SC INSTRUCTED BY Wellings Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr J Robson SC INSTRUCTED BY McPhee Kelshaw

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10929 of 2009 Sevenex Pty Limited v Blue Mountains City Council

JUDGMENT Introduction 1 SENIOR COMMISSIONER: Echo Point lookout at Katoomba is one of NSW's most frequently visited tourist locations. Approximately 160 m from the lookout is located a retail complex that trades under the name The Three Sisters' Plaza (the building). The site of the building (the site) is the only developed land on this side of Echo Point Road between Lilianfells Park and the entrance to the lookout. The site is on the edge of the escarpment and has an area of 1783 m². The site is wholly located within the Echo Point tourist precinct.

2 The building has three levels. The middle level is the level accessed directly, by a short flight of steps, from Echo Point Road. The lower level, the subject of the development application in this appeal, is virtually entirely below ground level with a number of high-level windows (with sills at or near the external ground level), along the western perimeter, providing limited natural light. There is, however, a large open stairwell from the middle level that also provides a degree of light, although not directly, into the lower level.

3 The applicant now proposes, in the area on the lower level, to establish, in the south-western corner, a koala and reptile exhibit that will include opportunities for visitors to be photographed with koalas. The visitors will pay a fee to enter this exhibit. The exhibit will also incorporate a koala and reptile food storage room and secure areas to which the koalas can be removed when they are not part of the active display. Two or three koalas are proposed to be housed in this exhibit.

4 Along the eastern wall at this level is proposed to be an Aboriginal Cultural Trail. Entry to this will also require payment. Toward the north-western corner of the lower level will be established a cafe adjacent to the koala exhibit and, to the north of the cafe, a retail tourist and souvenir shop is proposed.

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?

8 A range of other issues were raised by the objectors to the proposal - many of which were not matters that fall within the scope of matters to be assessed pursuant to s 79C of the Act (these objections being matters of an ethical or philosophical nature). However, other objector issues (such as the adequacy of parking) were addressed in the council's assessment report and would need to be considered and addressed by me if the permissibility hurdle was overcome.

The general characterisation issue 9 The existing development was granted consent by the council in an "Advice of Determination of Development Application" dated 4 March 1993. Although this consent was modified by a further determination dated 18 November 1993, this modification did not alter any relevant matter in these proceedings. In each instance, the plans for the western elements of the lower level of the building are described as retail and crafts.

10 In the original application plans, "crafts" is shown in the north-western corner with a dividing wall between that space and an area in the south-western corner that is described as "retail". The retail area occupies approximately two-thirds of the length of the western wall in the western element of the lower floor of the building.

11 In the November 1993 modification plans, these areas on the lower ground floor are not shown with a dividing wall and are simply designated "retail & crafts".

12 Mr Robson SC, barrister for the council, has not submitted that anything turns on this difference and I agree.

13 The paragraph of the 1993 development consent that precedes the detailed conditions of consent contains elements that require to be analysed in determining the general characterisation issue. This paragraph reads as follows: Pursuant to Section 92 of the Environmental Planning and Assessment Act, 1979, notice is hereby given of the determination by Council of Development Application No. 940/92 of 9th September, 1992 for the establishment of a commercial development on the abovementioned land. The Development Application as shown on the plans DRS No. 92016 SK/1 to SK/15 Statement of Environmental Effects prepared by Planning Workshop has been determined by the granting of consent subject to the following conditions: 14 It is obvious from the reading of this paragraph that the numbers of the plans (SK/1 to SK/15) should have been followed by one or more additional words prior to the words "Statement of Environmental Effects". The words that have been omitted would be relevant if the council were to have submitted that the omitted words had the effect of incorporating the Statement of Environmental Effects as an element of the development consent relevant to the general characterisation issue.

15 However, as there is no material before me that would enable any certainty with respect to what words should be included, Mr Robson disavowed any interpretation that incorporated the Statement of Environmental Effects. The council was prepared, in his submission, to rely on the second sentence of the above quoted paragraph solely by reference to the plans designated in it rather than requiring incorporation of any terms of the Statement of Environmental Effects. I have, therefore, confined my consideration of this issue on this basis.

16 Mr Hale SC, barrister for the applicant, submitted that a correct reading of the first paragraph of the notice of determination should lead to the conclusion that the council had granted development consent to an unconstrained, as to operational context, "commercial development on the abovementioned land". He also submitted that the use was a general one for the whole of the building rather than being subdivided by having regard to any of the areas designated for individual purposes on the plans.

17 Mr Robson, on the other hand, submitted that the correct reading of the first paragraph of the notice of determination required that I conclude that the development that was approved was one that was confined to the commercial uses expressly noted on the plans - relevantly, those noted for the lower level of the building.

18 I am satisfied that the view put on behalf of the council is the correct one on this point. My reasons are reaching this conclusion are simple to state. The paragraph quoted above from the 1993 development consent contains two sentences.

19 In my view, the first of those sentences is preambular and is merely scene setting for the context of what follows. It does not, in my view, have any operative effect. The second sentence, however, is the operative sentence that effects the granting of development consent. The consent is specifically granted, defined and confined, relevant to my determination of this issue, by the words "Development Application as shown on the plans DRS No. 92016 SK/1 to SK/15"

20 As a consequence, rather than being a development consent for a broad and unconstrained commercial purpose, the 1993 consent is one that specifically granted permission to use the various spaces in the building for the various uses designated on the March 1993 consent plans. The November 1993 modification plans do not effect any change to these designated uses relevant to the issues in these proceedings.

21 Thus the 1993 consent for the area proposed for the koala and reptile exhibit, on the lower level, was a consent for retail and craft uses rather than for an unconstrained commercial use.

22 The necessary further consequence of this finding is that the applicant is not entitled to rely on a broad characterisation approach to found permissibility, on a general continuation of existing use rights basis, for the proposed koala and reptile exhibit in the south-western corner of the lower level building.

23 A similar position applies, from an examination of the relevant elements in the 1993 plans showing the eastern side of the lower level, to the Aboriginal Cultural Trail. As a consequence, this, too, cannot found permissibility on the 1993 consent.

The statutory characterisation issue 24 Although the applicant has failed to establish that the proposed changes to the operations of the building and the activities in it are capable of being supported on the basis of the 1993 development consent, the question remains to be considered whether the changes are rendered permissible through the statutory provisions relating to existing uses. S 108 of the Act provides that regulations may establish a framework within which an existing use may be changed to another use even if it is otherwise prohibited. The relevant provisions of the regulations are contained in s41 of the Regulation, that applicably reads: 41 Certain development allowed (1) An existing use may, subject to this Division:

(a) ….., or (b) ….., or (c) ….., or (d) ….., or (e) if it is a commercial use - be changed to another commercial use (including a commercial use that would otherwise be prohibited under the Act), or 25 The Regulation also provides for a definition of "commercial use" to be applied in this context. That definition is in the following terms: (3) In this clause: commercial use means the use of a building, work or land for the purpose of office premises, business premises or retail premises (as those terms are defined in the Standard Instrument (Local Environmental Plans) Order 2006 ).

26 As a consequence, it is necessary to turn to the three definitions of the types of premises found in this definition in the Regulation (which definitions are found in the Order). I note, before doing so, however, that I understand it to be agreed that the present uses satisfy the above definition.

27 It is common ground that the definition of "retail premises" encompasses those areas of the lower level of the building in the north-western corner proposed to be used for the sale of souvenir and tourist items and the area between that retail facility and the koala and reptile exhibit (which area is proposed to be used as a café). The council accepts that these uses of these areas are permissible and raises no objection to them.

28 It is also common ground that the koala and reptile exhibit and the Aboriginal Cultural Trail do not fall within the definition of "office premises" nor do they fall within the definition of "retail premises" contained in the Order. I am, therefore, required to consider whether or not these two proposed uses for within the definition of "business premises" contained in the Order. This definition is in the following terms: business premises means a building or place at or on which:

(a) an occupation, profession or trade (other than an industry) is carried on for the provision of services directly to members of the public on a regular basis, or (b) a service is provided directly to members of the public on a regular basis,

and may include, without limitation, premises such as banks, post offices, hairdressers, dry cleaners, travel agencies, internet access facilities, medical centres, betting agencies and the like, but does not include sex services premises.

29 It is also common ground between the parties that the first category of buildings provided for in this definition is also not applicable. As a consequence, the only category within which these two exhibits may possibly fall are "a service provided directly to members of the public on a regular basis".

30 There are a number of elements within this provision.

31 It is not disputed that that which is to be provided is to be provided to the public nor that it is to be provided on a regular basis (given what would be the reasonably expected operating hours of the exhibits).

32 Second, although I questioned Mr Hale about whether the word "directly" required some prohibition of indirect marketing of tickets to the exhibit or Trail through tourism wholesalers or tour company operators, I am satisfied that, however that which is provided is marketed, it will, nonetheless, be provided directly as those who undertake the experience will do so first-hand rather than in some indirect fashion.

33 The primary and determinative issue in contention between the parties, therefore, on definitional matters, arises from whether or not the experience being provided constitutes "a service" or not.

34 The word "service" is not defined by the Order. Mr Hale took me to a variety of statutory definitions in State and Commonwealth enactments - suggesting that I could find some guidance from what was contained therein. However, as each of the enactments was brought into being for a particular regulatory purpose (none of them being for town planning purposes), I have found them of no assistance in understanding how this word might be comprehended in such a legislated town planning framework.

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.

19. 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:

Part of the role of any zoological institution is to provide education through entertainment, as will be the case with this proposed koala exhibit. Education is such a big part of zoological institutions because the public is much more likely to retain information and show interest when the subject is enjoyable. By providing animals for the public to see and enjoy a close we generate interest in people who may not otherwise be interested. We are also able to draw the public's attention to other import and varied subjects, including their education of former unique to Australia.

The three sisters is one of the most frequent of tourist locations in Australia. By exhibiting koalas at the three sisters Plaza we would be giving a face to Australia's native flora and fauna, generating interest not only in the and will itself but in the environment that surrounds it. This exhibit would provide us with the opportunity to educate people both on a national and international scale.

……………………. ……………………. ……………………. Conclusion

In regards to international tourism and the Australian public koala is a big native drawcard. They are an endearing representative of Australian native flora and fauna. The colour exhibit would be a major asset at the three sisters Plaza generating not just a financial reward but provide a public and international educational one as well. 37 The on the other hand, on this point, Mr Robson submitted to the contrary. His position can also, conveniently, be summarised by an extract from his written submissions which were, on this point, in the following terms: The premises are not Business Premises

The 'business premises' definition is set out above. The definition is in two parts, expressed in the alternative. The Applicant does not suggest that the use falls within paragraph (a) of the definition. Nor could it.

Rather, there is a suggestion that the proposed use falls within paragraph (b) in that there is a "service" that is to be "provided directly to members of the public on a regular basis".

Apparently, the Applicant contends that "service" is the provision of a "koala experience". It was earlier referred to by the Applicant's legal representative as: "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. "

"Service" is not defined in any of the Environmental Planning and Assessment Act, the Regulations or the Standard Instrument. The word is being used according to its ordinary meaning. As a result, dictionary definitions can be of assistance. The Macquarie Dictionary defines "service" to mean "an act of helpful activity". When construing the word, its meaning is derived from its context. Finally, environmental planning instruments are a species of delegated legislation, a statutory instrument, and should be interpreted in accordance with the general principles of statutory interpretation. As a result, a construction should be preferred that is consistent with the language and purpose of all of the provisions of such instruments.

It is correct to say that the definition of Business Premises provides examples that are expressly "without limitation". That simply means that the list that follows is not an exhaustive list of business premises. However, the fact that the list is inclusive only does not prevent its use in. order to understand the context.

As can be seen by reference to the inclusive list of premises that provide services, each of them can be seen to serve a member of the public. The member of the public is served by a person providing to the member of the public an act of helpful activity (to adopt the Macquarie Dictionary definition).

It is with that understanding of the common use of the word "service", and the context within which it appears that the suggested "service" the subject matter of this application is to be considered.

Thus, the koala "experience" is just that: an experience. Although members of the public may experience the koalas and their habitat those members of the public are not the recipient of any helpful activity. Nor have they been served nor received the benefit of anyone's services. Similarly, no service is provided by the Aboriginal diorama.

38 In my view, the construction of the second element of the definition of business premises advanced by Mr Robson is to be preferred.

39 I consider that the concept of "helpful activities" is an appropriate way to characterise the nature of those used as examples in the definition.

40 Whilst I accept that the definition's examples are a range without limitation, seems to me that the fundamental distinction between the nature of the activities characterised as providing a service in those noted as examples by the definition are characterised, without further limitation, as being services (helpful activities) that are likely to be accessed by a consumer of the service on a regular or frequent basis or as an ordinary part of day-to-day living. Further, I do not consider that the mere fact that the activity involves a commercial transaction but not the provision of "goods or materials" falling within the definition of "retail premises" automatically renders that for which payment is made a "service" merely because it could not fall within any definition of "goods or materials". Such an approach, whilst simplistically satisfactory for statutory frameworks such as that imposing a goods and services tax and thus might be appropriate in that context, is not appropriate in this town planning context.

41 For example, I am satisfied that a medical centre that operates purely on a bulk-billed basis under Medicare without requiring any co-payment from a patient, nonetheless satisfies the definition of a service as the definition of "business premises" includes "medical centres" without any specification on how they might be operated. Conversely, it seems obvious to me that the mere presence of a payment by the person receiving something which is not "goods or materials" does not automatically require it to be incorporated in the range of buildings covered by this provision.

42 It is pertinent to note that the definition also includes the following: may include, without limitation, premises such as banks, post offices, hairdressers, dry cleaners, travel agencies, internet access facilities, medical centres, betting agencies and the like, but does not include sex services premises.

43 The definitions in the Order also use the word "service/s", in the title of the defined term, in a number of instances. These are: · health services facility; · highway service centre; · home occupation (sex services); · service station; · sex services; and · sex services premises. 44 There are also a number of other definitions in the Order that use the word service within the text of the definition rather than in its title. These include: · child-care centre; · marina; · exhibition village; · medical centre; and · sex service premises. 45 Indeed, it is pertinent to note there is at least one definition in the Order, that of "storage premises", that makes it clear that it is possible to have premises that are used for commercial purposes in a fashion that does not cause those premises to be either retail premises or business premises and which premises are, self-evidently, also not office premises. That definition is in the following terms: storage premises means a building or place used for the storage of goods, materials, plant or machinery for commercial purposes and where the storage is not ancillary to any business premises or retail premises on the same parcel of land. 46 The definitions in the Order also use the words "service", "services", "serviced" or "servicing", on my count, 53 times throughout the definitions. A reading of the context of the use of these words in the various places where they appear in my view reinforces the position that there is a constant thread of the use of these terms to describe something that would be used or undertaken on a regular or frequent basis or as an ordinary part of day-to-day living. The nature of that which is proposed to be provided by the koala and reptile exhibit cannot possibly be so described.

47 As I have earlier indicated, I am satisfied that the fleeting, transitory and unlikely to be regularly or frequently repeated nature of the experience cannot fall within the concept of a service for the second limb of the definition.

48 For completeness, I should deal with the question of how does the use, in a number of instances in the definitions in the order, both in the title and in the text, linking the words "sex" and "services" fit within this framework of description of ordinary, everyday activities.

49 During the course of the proceedings, I questioned Mr Robson as to why "sex service premises" were expressly excluded from falling within the definition of "business premises". I did so because of the nature of the experience provided at such premises is not ordinarily seen to be akin to that which is provided to the public in the other sorts of premises cited in this explanatory element of the definition.

50 Mr Robson submitted that it was merely likely to be abundant drafting caution that caused this exclusion rather than any acknowledgement that such premises would otherwise fit within the definition. I accept that, given the fact that special provisions are likely to be made for the regulation of "sex service premises" and similar sexually oriented premises and activities in any new local environment plan, it is reasonable to accept that this might be the case.

51 However, in addition, the many recorded decisions of the Court, whether upholding or dismissing development appeals seeking planning consent for the establishment of brothels, mean that it might well be appropriate to regard "sex service premises" as possibly being services accessed by (at least some) male members of the community on a regular or frequent basis or as an ordinary part of day-to-day living. If this were to be the case, there would still be a distinction being made by the definition but the drafting exclusion would have been provided to ensure that separate and different consideration was given to such premises and to exclude them from rights under the existing use provisions of the Regulation. Such premises would, nonetheless, have fitted within the definition, as I have construed it, without this drafting exclusion.

52 As the necessary consequence of the above, I am satisfied that the koala and reptile exhibit and the Aboriginal Cultural Trail cannot be characterised as being "business premises" and, therefore, cannot be regarded as a commercial use for the purposes of the Regulation.

53 The necessary further consequence of that is that the applicant is not able to take advantage of the ability that is provided by cl 41(1)(e) of the Regulation to change uses between commercial uses.

54 I note that, during the course of the proceedings, the question of satisfaction or otherwise of the provisions of cl 41(2) of the Regulation was not canvassed. As a consequence, I make no comment on whether or not I could have been satisfied that the provisions of cl 41(2) requiring that changes involve only alterations or additions that are minor in nature was satisfied.

55 However, if I be wrong in my conclusions of the two characterisation issues that form the basis for this decision, those matters may need to be addressed in any future proceedings. Do I need to characterise the use? 56 As I have concluded that the use of a koala and reptile exhibit and Aboriginal Cultural Trail do not fall within the definition proposed by the applicant, I do not consider that it is necessary for me to determine how these uses should, in fact, be characterised.

57 It is sufficient, in my view, as I have earlier noted, that the definitions in the Order contemplate, in one instance, expressly, that there are premises that can operate for commercial purposes without falling within the definition of "commercial premises" set by the Regulation. The fact that these uses may fall within some other characterisation of use as defined by the Order or may not fall within any defined use is, in my view, irrelevant. It is sufficient to have demonstrated, as is demonstrated by the definition of "storage premises", that there can be premises used for commercial purposes whilst not falling within any of the three limbs provided for in the definition of "commercial premises" set by the Regulation. The absence of licences pursuant to the Exhibited Animals Protection Act 1986 58 Finally, as a consequence of my conclusion that the proposal, as to its koala exhibit and reptile exhibit and Aboriginal Cultural Trail, is prohibited, I do not need to address the third question posed at the commencement of this decision.

Conclusion and orders 59 The inescapable result following from that which I have set out above is that neither koala and reptile exhibit nor the Aboriginal Cultural Trail can be permitted.

60 As a consequence, the orders of the Court are: 1. The appeal is dismissed; 2. Development Application X/1128/2008 for additions and alterations to premises at 33 - 37 Echo Point Road, Katoomba for the establishment of a koala and reptile exhibit, Aboriginal Cultural Trail, cafe and associated souvenir and tourism retail sales facilities are determined by the refusal of development consent; and 3. The exhibits, other than Exhibit 4, are returned.

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