Sevenex Pty Limited v Blue Mountains City Council [2010] NSWLEC 101 | Case summary

An extract from AJ Nott's textbook (1982) Background 8 The subject property, 30-35 Echo Point Road, Katoomba (Lot 1 DP 300226), is situated in a "residential bushland conservation" zone under the LEP. Under this zoning, the proposed development and the present use of the premises are prohibited, but the present use benefits from the development consent granted in 1993 and is an existing use within the definition in s106 of the EP&A Act. 9 The site was granted consent on 4 March 1993 pursuant to a development application (DA No 940/92) submitted on 9 September 1992. The first paragraph of the notice of determination reads: "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:" (emphasis added) 10 The various plans approved with DA No 940/92 identify the proposed uses throughout the development, as "retail", "crafts", "food service", "coffee shop", and "games room". The lower ground floor, the area where the current proposal would be located, is detailed in plan no SK/4, which shows an area for "crafts" in the north-western corner and "retail" in the south-western corner. SK/4 depicts a dividing wall that separates those two uses, but the modification approved in November 1993 deleted the dividing wall and designated the relevant area on plan No B04 simply as "retail and crafts" (both plans in Exhibit G). The current development proposal 11 The proposal which was made to Council, and came before the Commissioner, was for "alterations to internal partitioning in basement to allow for diorama of aboriginal culture and koala exhibit: relocation of existing café and café kitchen" (Exhibit 6, fol 3). 12 The Statement of Environmental Effects ('SEE') accompanying the DA (Exhibit 6, fol 11) stated: "… it is proposed to build an exhibit of aboriginal culture together with an exhibit of the renowned Australian marsupial, the koala. The twin facilities, located to the "3 Sisters", would provide a vital source of education for international and national tourists and school children. … This initiative will add an important cultural and education dimension to the Echo Point Precinct, rounding off for both international and local visitors, a unique window to Australia. … To effect this, this development application proposes alterations to the existing lower ground floor tenancy partition layout to allow for a relocated café and new exhibit of aboriginal culture and a koala exhibit." 13 The proposed internal changes to the lower ground floor were described thus (see 3.1 on fol 12): "Dismantling and relocation of the existing café kitchen below the main entry stairs and its associated seating from the east side to the north-west corner of the lower ground floor. Demolishing of retail partitioning on north-east and south-east sides to allow for a room fitted out with an exhibit of aboriginal culture. Demolishing of retail partitioning in the south-west corner to allow for a koala exhibit, small plant room, feed store, isolation enclosures for the koalas, a public viewing area, ticketing booth, and airlocks. Installation of works depicting aboriginal culture for display in the atrium floor area." 14 External changes as part of the proposal were limited to two external air ducts to service the koala exhibit plant (see 3.2 on fol 12). 15 The DA documentation included a statement dated 10 December 2008 from a zoologist working in the captive animal field, Rachael Baker (fols 20-22), who opined (at fol 20): "Part of the role of any zoological institution is to provide education through entertainment, as will be the case with this proposed koala exhibit, … [by] providing animals for the public to see and enjoy up close …". 16 In response to Council's concerns about the characterisation of the subject proposal and its permissibility, the applicant forwarded a submission from Eeles Trelease Pty Ltd Architects further describing the proposal (Exhibit 6, fol 49ff), stating (at 50-51): "Koala Exhibit The Function of this area is to house the koalas in a manner that provides a secure, comfortable and aesthetically pleasing living environment while at the same time giving the public the opportunity to view and study these animals. The main focus of this establishment will be the koala exhibit. … Vivarium The Function of this area is to house reptiles, in this case snakes and lizards in a manner that provides a secure, comfortable and aesthetically pleasing living environment while at the same time giving the public the opportunity to view and study these animals." …

… Aboriginal Cultural Exhibit … a mixed media exhibition of aboriginal culture… It is also intended that the exhibition will appeal to all visitors, international and local alike ". 17 The Council was provided with a copy of an advice prepared for the applicant by Mr Hale SC, expressing his opinion that the proposal was permissible (fols 57-63). 18 The Council's assessment report (fols 68ff), presented to Council after the applicant had commenced its appeal to this court on a "deemed refusal" basis, found the proposal to be not permissible and to raise several unresolved merit concerns (see fol 70). Council unanimously resolved to refuse development consent. The Commissioner's Judgment 19 The Commissioner heard the appeal on 1-3 July 2009 and reserved his decision. His judgment dismissing it was published 6 August 2009. 20 After introducing the appeal (in [1]-[5]), and detailing the relevant planning history (in [6]), he summarised the issues before him thus (in [7]): "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?" (emphasis added) 21 The Commissioner acknowledged (at [8]) that there were objector issues relating to the merits of the application (not related to the issue of permissibility) as well as issues of an ethical or philosophical nature (which he noted were not relevant to his determination under s79C of the EP&A Act). 22 He detailed the submissions of the parties on what he called the "general characterisation issue" (at [9]-[17]), and (at [18]-[20]) accepted the Council's submissions that the first sentence in the notice of determination under DA No 940/92 was of a preambular nature, and that reliance on the plans described in the second sentence of the notice of determination was required (see [9] above). 23 He, therefore, concluded (at [20]) that the consent granted to DA No 940/92 was not for a "broad and unconstrained commercial purpose", but rather "to use the various spaces in the building for the various uses designated on the March 1993 consent plans". As the plans were properly incorporated into the DC and identified a retail and crafts use on the lower ground floor the learned Senior Commissioner held (at [21]-[23]) that the 1993 consent could not be relied upon to make proposed development permissible. 24 Turning then to what he had described as the "statutory characterisation issue", he set out (in [24]-[25]) the framework of the existing use provisions of the EP&A Act and accompanying regulations as follows: "24 … 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: 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)." 25 He then (in [26]-[29]) referred to the definitions of those three types of premises, noting agreement "that the present uses satisfy the above definition" (of commercial use) and that the live issue between the parties was whether the proposed new exhibits could come within the description of "business premises" as hosting "a service provided directly to members of the public on a regular basis". He then analysed the provision (at [30]-[37]) to see if "the experience provided constituted 'a service' or not", quoting at length from Mr Hale's advice (pars 16-22, at fols 60-62 of Exhibit 6), from a koala curator's opinion, and from Mr Robson's written submissions (pars 22-29). 26 He concluded (at [38]-[47]) that Mr Robson's submissions were to be preferred, based as they were on finding the "ordinary" or "common" meaning of the word "service", defined by the Macquarie Dictionary as "an act of helpful activity", and contrasting that with what was proposed for the exhibits, namely "an experience" not regularly or frequently to be repeated for a particular member of the public. 27 The Commissioner then, "for completeness", dealt (at [48]-51]) with the Order's reference to "sex services", which need not detain the court in this appeal, before concluding (in [52]-[55]) that the koala and reptile exhibit and the Aboriginal Cultural Trail could not be characterised as "business premises", and that the applicant could not rely upon cl 41(1)(e) of the Regulation to change between uses generally of a commercial nature. 28 He then decided (at [56]-[57]) that it was not necessary to characterise the subject proposal, and (in [58]) that it was unnecessary to decide the question of licences under the Exhibited Animals Protection Act 1986 (see [8] above). 29 He concluded (in [59]) that the "inescapable result" was that neither the "koala and reptile" exhibit nor the "Aboriginal Cultural Trail" could be permitted. Consideration of the grounds of appeal 30 To succeed in this appeal the applicant/appellant must identify some error of law in the Commissioner's decision. 31 The two grounds of challenge were set out above (in [5]), as they were put in the applicant/appellant's written submissions. Ground (a) - the 1993 consent 32 To successfully argue that the Commissioner was in error in holding that the applicant/appellant cannot rely on the 1993 consent, properly construed, to establish the permissibility of the current proposal the applicant must show (1) that that consent, as modified, was granted for "a broad and unconstrained commercial purpose", rather than for the specific "retail" and/or "crafts" uses depicted on the approved plans, and (2) that the proposed development does not constitute a change of use from the 1993 consent. Section 107(1) of the EP&A Act provides that "nothing in this Act or environmental planning instrument prevents the continuance of an existing use". 33 Before the Commissioner, and in this appeal, Mr Hale SC, counsel for the applicant, argued that the use approved in 1993 was "commercial development", and that the consent, therefore, authorised any use of the building of a general commercial nature, rather than authorising the specific uses designated for particular areas of the lower ground floor shown on the approved plans. He noted that there were no conditions of consent imposed which limited the use approved by the consent to any particular type(s) of commercial development, and relied on the following remarks of Else-Mitchell J in Ryde Municipal Council v The Royal Ryde Homes ("Royal Ryde") [1970] 1 NSWR 277; (1970) 19 LGRA 321, at 324: "… it is sound to say that the legal qualities of a consent possesses, or which flow from a consent, are so important that care should be taken to ensure that consents are framed in clear terms and conditions are specified with certainty. Any lack of clarity or certainty is the responsibility of the council and it must take the consequences of any failure to specify accurately or in detail what is consented to as well as any conditions to which a consent is subject." 34 Mr Robson SC, counsel for the Council, submitted that such a generalised construction of the consent as Mr Hale urged on the court would lead to an absurdity, as "commercial development" could encompass any type of "development, whatever its nature that is not charitable and which is for profit." Therefore, Mr Robson submits, the proper construction of DA No 940/92 requires the court to have regard to the plans incorporated into the consent, which identify particular areas of the development for designated uses. 35 I recently summarised the relevant authorities on construction of consents in Vis Visitor Investment Services v Hawkesbury City Council ("Vis") [2010] NSWLEC 10 (at [46]-[56]). The court will generally rely on documents which are not expressly or by implication incorporated into a development consent, only when reference need be made to them to resolve any ambiguity or inconsistency in construction of the consent. 36 In this case the 1993 consent is very clear on its face, and expressly incorporates the approved plans, which are very specific in defining the use of various areas of the "commercial development" approved. I agree with Mr Robson that the term "commercial development" is far too broad in scope to be relied upon to define the nature of a use approved in a consent. 37 I find that the Commissioner was entirely correct in his conclusion that the actual consent is represented by the reading together of the two sentences in the notice of determination (see [9] above), albeit that there appear to be some words missing after the mention of the plan numbers, which words may have expressly incorporated into the consent also the SEE, to some of which I have earlier referred. 38 All of Mr Hale's submissions rely on the court's acceptance that only the first sentence of the notice of determination can constitute the consent, and on an assertion that a sale of an admission ticket or of a photograph taken of a patron with a koala somehow brings the educational use within the approved retail use. As Mr Robson says (T38) a use is defined by its "reason for being", not by such ancillary or incidental aspects. Peters v Manly Municipal Council [2007] NSWCA 343 (at [21]-22]). 39 Nothing in Royal Ryde derogates from the conclusion I have reached, which is, in my respectful view, dictated by the proper application of later authorities such as Auburn Municipal Council v Szabo (1971) 67 LGRA 427, Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council (No.2) (1993) 78 LGERA 404, House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498, Kendall Street Developments Pty Ltd v Byron Shire Council [2004] NSWLEC 227, and Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd; Weston Aluminium Pty Ltd v Environment Protection Authority (2006) 148 LGERA 439, most of which I surveyed in Vis. 40 As the uses proposed by the current application are in the nature of "education by entertainment" they clearly represent a change from those uses granted under the 1993 consent, and the applicant's first ground of appeal must fail. 41 Having held that the current proposal represents a change of use, I turn now to the second ground of appeal. Ground (b) - change of use under cl 41(1)(e) 42 Clause 41 of the Regulation (as noted in [24] above) relevantly provides: "(1) An existing use may, subject to this Division: … (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) … (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)." 43 The Standard Instrument provides the following definitions for "business premises" and "retail premises" ("office premises" being clearly not relevant to the present case): "'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. … ' retail premises' means a building or place used for the purpose of selling items by retail, or for hiring or displaying items for the purpose of selling them by retail or hiring them out, whether the items are goods or materials (or whether also sold by wholesale)." 44 I have already rejected Mr Hale's submission that the sale of tickets for entry, and of photographs, in conjunction with the existing sale of other souvenirs, would satisfy the definition of "retail premises". 45 It was also agreed between the parties that the first category of uses under "business premises" is not applicable. Accordingly, the proposal must meet the characterisation of "a service provided directly to members of the public on a regular basis". Mr Hale asserts that as all services are intangible (whereas goods are tangible), the provision of an experience, be it with koalas, reptiles or Aboriginal culture, must be of an intangible nature and therefore a service. He relies on various statutory definitions of "service" or "services" in, for example, taxation and fair trading legislation. 46 The Council submits that the proposed development should be characterised as a "zoological institution" or a "educational establishment" which do not fall under the second category of "business premises". Mr Robson further submits that terms are specifically defined in statutes only when it is the legislature's intention that they be accorded a certain meaning in that particular context, not generally encompassed in their ordinary usage. See discussion by Latham CJ in The Producers' Co-operative Distributing Society Limited v The Commissioner of Taxation (NSW) (1944) 69 CLR 523, at 531, and by Gleeson CJ in R v Scott (1990) 20 NSWLR 72, at 77. 47 I am not convinced by Mr Hale's submission that the definition of "services" would extend to a use such as the proposed development. As Mr Robson submits, the ordinary Australian English definition of "service" is "an act of helpful activity". The proposed development, which provides "an experience", cannot be identified as providing a service in a planning sense. Further, as the description of the proposal in documents accompanying the application suggests, the proper characterisation of the proposal is that of an "information and education facility", or a tourist facility. 48 The use of the words "and the like" in the definition of "business premises" has the effect of limiting uses which may be covered to those of a similar nature to those which are identified. Those mentioned in the definition all share a "theme" in that they are of a domestic nature and would be common to most shopping centres and suburban localities. The proposed new uses are not of that type, and therefore could not be seen as embraced by the definition of "business premises". 49 I have concluded that the subject proposal fails to meet the test of "service" and/or "business premises" under the Standard Instrument and that the Commissioner did not err in his conclusions. Conclusion 50 It is clear from what I have written that I agree with the Senior Commissioner's findings on permissibility, and can identify no error of law on his part. That being so, the so-called "Ground 4" and the question of remitter do not arise. 51 The appeal is dismissed with costs. 52 Exhibit 'G' and the copy of Exhibit 6 may be returned.

Sevenex Pty Limited v Blue Mountains City Council

At a glance

Court

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Before

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Judgment (15 paragraphs)

Parties

Cases Cited (9)

Cited By (3)