Solid Gold Custodians Pty Ltd ATF SGH Property Trust v Inner West Council

Land and Environment Court (NSW)|2024-08-28

The applicant's position on permissibility

SGC's primary position is that the proposed development is permissible pursuant to cl 6.21 of the IWLEP. It says that cl 6.21, by its application to certain areas within the E4 zone mapped as "Area 19", operates to make certain business or office premises permissible in locations it considers suitable.
SGC relies on the general principles of statutory interpretation to understand cl 6.21. These principles apply to delegated legislation (4nature Incorporated v Centennial Springvale Pty Ltd (2017) 95 NSWLR 361; [2017] NSWCA 191 (4nature) at [15]). Principally, this involves a focus on the text of the clause and its natural meaning, starting with the actual words of the instrument in their context, having regard to the purpose of the provision: SZTAL v Minister for Immigration and Border Protection (2017) 263 CLR 1; [2017] HCA 34.
Having regard to the objective of the clause, SGC says that it operates to permit certain types of business and office premises in the E4 zone, on land that it considers suitable for that purpose by mapping it "Area 19". SGC points out that it is therefore an exception to the general prohibition on those uses in the Land Use Table. Pursuant to cl 2.3(4), the Land Use Table is subject to the other provisions of the IWLEP, which allows cl 6.21 to operate to overcome the prohibition.

Clause 6.21 makes some business and office premises permissible

I accept the parties' agreed position that cl 6.21 of the IWLEP overcomes the prohibition against business and office premises in the Land Use Table for the E4 zone if the requirements of the clause are met.
In understanding cl 6.21, it is important to focus on the text of the provision and its context within the IWLEP. As set out in 4nature [51]: "Basic principles of statutory construction require that the language be read in context and having regard to the objective which it was designed to promote. However, the primary focus must remain upon the text."
The starting point, by way of context, is that business and office premises are prohibited in the E4 zone pursuant to the Land Use Table. This is because they are a type of commercial premises, which is a nominated prohibited use in that table. Clause 2.3 of the IWLEP is the operative clause for the operation of the Land Use Table. At cl 2.3(1), it provides: (1) The Land Use Table at the end of this Part specifies for each zone - (a) the objectives for development, and (b) development that may be carried out without development consent, and (c) development that may be carried out only with development consent, and (d) development that is prohibited.
Clause 2.3(4) then makes it clear that "This clause is subject to the other provisions of this Plan". There is, therefore, scope for other clauses of the IWLEP to inform what development may be carried out only with development consent.
By using the words "Development consent must not be granted…unless…", clause 6.21(3) is expressed in the negative. However, it has the same substance of a provision expressed permissibly. As stated by Giles JA in Strathfield Municipal Council v Poynting (2001) 116 LGERA 319; [2001] NSWCA 270, at [93]: "Care must be taken lest form govern rather than substance. A provision in the form, "A building may be erected on land in a particular zone if the land has an area greater than a particular area" appears regulatory, whereas a provision in the form, "A building must not be erected on land if the land has an area less than a particular area" appears prohibitory, but the substance is the same."
When having regard to the objective of cl 6.21, "to promote certain types of business and office premises in Zone E3 Productivity Support and Zone E4 General Industrial", it is clear that this objective cannot be met unless cl 6.21(3) is understood to be permissive. Business premises and office premises are already prohibited in the E4 zone, and therefore the objective of cl 6.21 can only be met if cl 6.21(3) is understood as making them permissible, but only if the clause applies and if the requirement of cl 6.21(3) is met.
To interpret cl 6.21 in any other way would render the clause otiose with respect to the E4 zone. It would also render otiose the map of "Area 19" within the E4 zone, as there is no other clause within the IWLEP that operates with respect to Area 19.
I therefore consider that, whilst business and office premises are prohibited in the E4 zone, that prohibition is lifted if cl 6.21 applies and the requirements of cl 6.21(3) are met. There are three elements that need to be satisfied with respect to land within the E4 zone to meet the requirements of cl 6.21(3).
Firstly, the development must be for the purposes of business premises or office premises. This is essential to the first clause within cl 6.21(3), "Development consent must not be granted to development for the purposes of business premises or office premises". That is, the end to which the land is seen to serve by the proposed development must be either "business premises" or "office premises" within the meaning of those terms in the IWLEP. It is in satisfying this requirement that questions arise concerning the characterisation of the use, including understanding the dominant purpose.
Secondly, it must be "on land to which this clause applies". That is, the site must be mapped within Area 19 on the Key Sites Map.
Thirdly, the consent authority must be "satisfied that the development will be used for creative purposes", and examples are provided. As such, the type of "business premises" or "office premises" that is proposed must be one that is used for "creative purposes". My use of the word "type" is reflective of the objective of the clause, to promote "certain types of business and office premises". Contrary to what is submitted by the Council, "creative purposes", and the list of examples, are not land uses. Instead, they are the type, or form, of the business or office premises proposed. This requires having regard to the particular form of the development proposed.
Determining whether a particular proposed development is one that "will be used for creative purposes" is a question of fact and degree. Creativity itself exists on a spectrum. The best example of this is "publishing", which is one of the examples provided in cl 6.21(3). Whilst office or business premises used for the publishing of law reports, which simply reproduce judgments already published by a court, may not be considered as being used for "creative purposes", such premises used to publish the works of a new author of fictional romance may well be. The point at which a type of premises goes from the benign to one that is "used for creative purposes" is not easily defined, and therefore, the satisfaction required by cl 6.21(3) must turn on the facts of the particular type of office or business premises proposed.

The proposed development meets the requirements of cl 6.21

In applying cl 6.21 to the proposed development, I consider that the hair and beauty salon proposed meets the requirements of the clause. It is agreed that a hair and beauty salon is premises within the definition of 'business premises' in the IWLEP, and that the site is within Area 19. In addition, I am satisfied that "the development will be used for creative purposes". I reach this state of satisfaction for three reasons.
Firstly, hairdressing, which is what occurs within the hair salon, involves skilful design. Both the evidence concerning the history of hairdressing, and the evidence of interviews from current hairdressers, demonstrate that the dressing of hair involves applying a design to the hair to achieve a style. 'Design' is one of the specific examples given in cl 6.21(3).
In Mila Contini, Fashion: From Ancient Egypt to the Present Day (1st ed, 1965, Crescent Books), the history of how design techniques have been used to achieve hairstyles is described: by adornment, changing colour and/or sculpting to particular shapes. For example, in Greek fashion, "Elegant women used spirals of gold, or silver or bronze bands as ornaments in their hair" (at 35), and "both men and women bleached their hair with potash water, washed it with infusions of yellow flowers, and dried it in the sun, to make it lighter in colour" (at 51). This involved time and skill, and, for Roman women, "The delicate operation of dressing the hair was always performed by a skilled slave, who might be scolded, punished, slapped, and tortured or jabbed with pins if a lock was out of place or the parting was not perfect" (at 58).
Similarly, the interviews undertaken by Mr Gheorghiu and the statements made by current hairdressers make it clear that they see themselves as a design profession, and they work with a client's face shape, complexion, hair quality and texture in order to determine an appropriate design and apply techniques to achieve a style in the hair.
The same is true of a beauty salon, where the design is in the transformation of the face and other body parts. Those who apply make-up are commonly known as 'make-up artists'. A historic example, given in Mila Contini, Fashion: From Ancient Egypt to the Present Day, is that Roman women would apply a concoction of "barley, vetch, ten eggs, powdered stag's antler, twelve narcissus bulbs, gum and honey, to give the complexion 'a shining whiteness'" (at 58). In more modern examples, the Australian Wish Magazine credits the make-up artist for each of its shoots (Ex B, Tab J) and its April 2024 edition "lifts the lid on the not-so-secret men's makeover business and the specifics of these trending "tweakments"" (Ex B, p.103).
Secondly, for both hairdressing and a beauty salon, there are a diversity of designs that can be applied and styles that can be achieved. In Mila Contini, Fashion: From Ancient Egypt to the Present Day it is clear that this diversity occurs across history and culture, and can be reflective of social movements. However, the diversity also exists within the application of design choices. This is described by Mila Contini in the following way, concerning the 18th century (at 196): "Hair styles grew to be the most important feature of eighteenth-century fashion. They changed continuously, according to the dictates of fashionable hairdressers. Every hair style had a name; when they had the added complication of poufs they might be called a la belle Poule; some hair styles had decorations as elaborate as sailing ships placed on top of the edifice; even the poufs had names which distinguished them. Every occasion prompted Leonard to invent new hair styles, like the one called 'Inoculation', when Lady Montagu, the wife of the English ambassador in Constantinople, came back with the news that in Turkey and other countries inoculation against smallpox was widely known and practised."
The fact that there is diversity of styles that can be achieved means that creativity is applied in the design process to achieve a particular style. This is supported by the evidence from the interviews undertaken by Mr Gheorghiu and the statements made by current hairdressers. The current hairdressers include the following statements: "When I engage with the client and ask what hair design and style they would like I am assessing them. For example their head shape and hair quality." (Ex B, p.202) "Based [on] the client's request I also make recommendations and then decide what design could be achieved and how." (Ex B, p.202) "While cutting I consider whether I need to make changes taking account of the hair length, whether the hair springs up, how it moves, the shape, volume of hair and how the design looks as I am reducing the weight of the hair." (Ex B, p.202). "Everyone is different and there is not one hair cut that is the same and not one 'size' that fits all." (Ex B, p. 203). "When first assessing a client's hair, before I begin any cutting, I take into account the following: face shape, lifestyle, skin tone/complexion, favourite features/features they want concealed, fashion, the health of their hair, the colour of jewellery they usually wear, budget, and the look they are going for." (Ex B, p. 206). "Some clients come into the salon and show me a photo of Kim Kardashian's newest hairstyle, with that in mind, I often need to come up with a way to give the client something similar to Kim Kardashians hair but tailored to their individual features and budget." (Ex B, p. 206).
That the dressing of hair to achieve a particular style is a creative endeavour is also supported by the awards received by hairdressers. For example, Ms Gahan won "Artistic Men's Hairdresser of the Year", and the Australian Hair Industry Awards use creativity as a judging criterion.
In relation to the beauty salon, there is also a diversity of styles that can be achieved through the application of different techniques. This is described in Australia's Wish Magazine, May 2024 edition, in the following way: "Stealth wealth" and "quiet luxury" were fashion's big buzzwords in 2023, with the less-is-more "tasteful" and "discreet" aesthetic making its way onto our faces in the form of make-up-free perfect skin… But… At the most recent fashion shows in March, there was an attitude and fierceness we hadn't seen in seasons… our pick of the statement-making looks to recently emerge is "doll beauty". The look was first spotted at Marc Jacob's 40th anniversary runway show in February, where the models wore massive fake eyelashes… and porcelain make-up. … Cyrus… needs to be applauded for her equally adventurous approach to make-up. Cheekbones were contoured, skin given a golden sun-kissed glow, feathered eyebrows used to add drama and layers of mascara, worked root-to-tip, giving a false lash effect."
The fact that both hairdressing and beauty clinics can apply and achieve a diversity of styles means that there is creativity involved in applying and achieving a particular style on an individual, such that the clinic is being used for creative purposes.
Thirdly, the style applied at a hair or beauty salon is a form of creative self-expression for the wearer. Whilst for some, the creative expression might be limited to one of conformity with the dominant hairstyle of the time (such as the 'short back and sides' of current times, or the comb-over of former decades), for others, it is an opportunity to express oneself through the transformation of hair (by a hair salon) or the face or other body parts (by a beauty salon). As stated by Mr Duong, a current hairdresser, "Your hair style forms part of your overall self-expression, fashion, look and we contribute to creating that self-expression" (Ex B, p.203). Therefore, a hair and beauty salon is a premises used for the purposes of creative self-expression.
For those reasons, I am satisfied that the proposed hair and beauty salon is a development that "will be used for creative purposes". The particular user for the proposed development is Salon Lane, and the evidence is that it operates similarly to other hairdressing salons with both hair and beauty services, although it involves agreements with independent professionals (see Ex 2, p.10). There is nothing about the particular user that dissuades me from reaching this state of satisfaction.
Further, contrary to the Council's position, to reach the satisfaction that "the development will be used for creative purposes", there is no requirement for the creative purpose to be the dominant use in the way described in the Land Use Characterisation Planning Circular. That is because the question of satisfaction that "the development will be used for creative purposes" is not one of land use characterisation. The question of characterisation is confined to whether it is "development for the purposes of business premises or office premises", and question of whether "the consent authority is satisfied that the development will be used for creative purposes" concerns whether the particular form of the development proposed meets the words of that clause, as explained above at [61] to [62].
For all of those reasons, I am satisfied that cl 6.21 of the IWLEP applies and the requirements of cl 6.21(3) are met, such that the general prohibition on commercial premises in the E4 zone is lifted and the development for the purpose of a hair and beauty salon is permissible with development consent.

Contentions concerning the desired future character, the public interest and the zone objectives

The Council also contends that the proposed development is inconsistent with the desired future character of the Marrickville Metro Precinct under the Marrickville Development Control Plan 2011 (MDCP) (contention 3), and that the proposed development is not in the public interest (contention 5). In contention 1, the Council also asserts that the proposed development is inconsistent with the objectives of the E4 General Industrial zone.
The Council points out that, in the MDCP the precinct is described as "largely industrial in nature" whilst containing a commercial development, the Marrickville Metro shopping centre. One of the elements of the desired future character, at Section 9.29.2 of the MDCP, is to "protect the integrity and on-going retention of the existing industrial zoned land". The Council says that a hair and beauty salon is not consistent with the on-going retention of the existing industrial zoned land, and would also be contrary to the objective in the MDCP to "retain the existing employment generating land uses".
Similarly, the Council submits that the proposed development is not consistent with the objectives of the E4 General Industrial zone, which include to "provide a range of industrial, warehouse, logistics and related land uses", to "ensure the efficient and viable use of land for industrial uses", and to "protect industrial land in proximity to… the Eastern Economic Corridor". Whilst there is also an objective to "enable limited non-industrial land uses that provide facilities and services to meet the needs of businesses and workers", the Council submits that to give "creative purposes" an expansive definition that extends to a hair and beauty salon would be contrary to the express objective for there to be "limited" non-industrial uses in the zone.
The Council's evidence concerning these contentions largely relied upon a hair and beauty salon not being an industrial use, and not falling within the requirement of cl 6.21(3) to be "used for creative purposes". Further, Mr Swan opines that if the hair and beauty salon is approved, "it will open up broad style uses that have a creative element which will blur the line between business/retail uses and permit them in industrial zones which will put upward pressure on rent and push out legitimate industrial uses within the zone" (Ex 2, p.11)
However, for the reasons expressed above, I have found that the proposed hair and beauty salon is a business premises that will be used for creative purposes. Clause 6.21 provides a specific exemption to the prohibition on commercial premises in order to "promote certain types of business and office premises" in the E4 zone on a limited number of sites, mapped as Area 19. The site is mapped as Area 19, and so it is ear-marked as a site that is appropriate for "certain types of business and office premises" despite its zoning as E4 General Industrial. Further, it is in the vicinity of other non-industrial uses, such as a children's play centre and a gym. Contrary to the submission made by the Council, it provides employment opportunities by providing space for hair and beauty professionals to work their craft.
Accordingly, although it is not an industrial development, the proposed hair and beauty salon will not be out of character in the area, and will provide employment opportunities. The proposed development is also consistent with the objective of the E4 zone to "enable limited non-industrial land uses that provide facilities and services to meet the needs of businesses and workers", as a hair and beauty salon is a business premises that meets the needs of individuals, including workers, through hairdressing and beauty services.
Mr Swan's concern about pushing out "legitimate industrial uses within the zone" is not made out, due to the limited area that is mapped as Area 19 in both the E3 and E4 zone.
For those reasons, I do not accept the Council's contentions concerning the desired future character or the public interest, or its position that the proposed development should be refused on the basis that it is contrary to the objectives of the E4 zone.

Development consent should be granted

For the reasons above, I am satisfied that the proposed development is permissible on the basis that cl 6.21 of the IWLEP applies and the requirements of cl 6.21(3) are met.
As such, I need not consider questions concerning the breadth of the existing consent and whether it encompasses the proposed use, or the questions concerning whether there is an existing use that can be altered or changed pursuant to the EPA Regulation 2021, although I acknowledge that there was time spent on these questions at the hearing.
Further, I have considered the desired future character of the Marrickville Metro precinct under Part 9.39 of the MDCP, the objectives of the E4 zone, and the public interest. There is nothing raised by the Council in relation to these matters that warrants refusal of the development application. The hair and beauty salon is a development that will be used for creative purposes, in an area mapped to promote "certain types of business and office premises" that will be used for those purposes.
The Council has raised no other contentions on which it says that the development application should be refused. Further, the parties have raised no other jurisdictional matters that may form a pre-condition to the grant of development consent. Accordingly, development consent should be granted subject to the conditions of consent, which are agreed.
The Court orders that: 1. The appeal is upheld. 2. The development application (DA/2023/0377) for the fit-out and use of the premises at 30-32 Murray Street, Marrickville for the purpose of a hair and beauty salon, including signage, is determined by the grant of consent subject to the conditions in Annexure A. 3. Exhibits 1 and 3 are returned, and the remaining exhibits are retained.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 December 2024

The Council's position on permissibility

The Council contends that the proposed development is prohibited in the E4 General Industrial zone, as a type of commercial premises, and that the existing consent does not operate to make the proposed use permissible pursuant to either s 4.70 of the EPA Regulation 2021 or by the incorporated provisions.
Integral to the Council's position is that the hair and beauty salon use is not a creative purpose within the meaning of either cl 6.12 of the MLEP or cl 6.21 of the IWLEP. Accordingly, the Council says that a hair and beauty salon was never a use that was permissible on the site, and therefore is not within the scope of the existing consent. The Council's position, therefore, is that the proposed development is neither permissible under the IWLEP nor an existing use that could be permissible pursuant to the incorporated provisions.
The Council submits that, in order for the proposed development to be "for creative purposes", the creative purpose must be the dominant purpose of the use, to which all of the activities are directed. It relies on the Land Use Characterisation Planning Circular, PS 21-008, dated 2 December 2021, which provides that: "Development is considered to be for a particular purpose if that purpose is the dominant purpose of the development. This purpose is the reason for which the development is to be undertaken or the end to which the development serves."
The Council relies upon well established principles concerning land use, that development is for a purpose, and the purpose of the use is "the end to which land is seen to serve" (Chamwell Pty Limited v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 at [27]). The Council submits that although some hairstyles are a form of creative expression, hairdressing is often a purely utilitarian exercise that forms part of standard personal grooming. As such, the Council says that the end to which the land is to serve is not creative purposes, but personal services. The Council therefore says that a hair and beauty salon cannot properly be characterised as "for creative purposes", and must be refused as it is not a permissible use.
The Council agrees that the list of examples in cl 6.21(3) is not exclusive, given the use of the words "includes the following". Applying the reasoning in Cheetham v Goulburn Motorcycle Club Inc (2017) 223 LGERA 43; [2017] NSWCA 83, per McColl JA and Sackville AJA, the examples provided "are intended to be illustrative of the general requirements stated in the first part of the definition". The Council also points out that, even if a development meets the description of one of the examples, it will not fall within the definition unless it is also "for creative purposes".
The Council also submits that giving "creative purposes" an expansive meaning would be contrary to the objectives of the zone, which include an express objective to allow "limited non-industrial land uses that provide facilities and services to meet the needs of businesses and workers".
The Council's position is also that the proposed use is not authorised as an existing use under the existing consent, as the existing consent must be construed having regard to the terms of the MLEP. In circumstances where the only business premises permitted in the zone were those for "creative purposes", the Council says that the development consent could not have authorised a business premises that was not for "creative purposes", such as the hair and beauty salon. As such, the Council says the proposed hair and beauty salon is neither authorised by the existing consent nor permissible pursuant to the incorporated provisions.

(2007) 151 LGERA 400

(2001) 116 LGERA 319

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