Land and Environment Court (NSW)|1996-02-29|Before: Bignold J

The Applicant suggested that Rankine and Ilic were no longer authorities to be followed since Meagher JA's judgment in O'Donnell. I am unable to accept that both the former cases do not state the law as it now stands, despite having been decided before the latter case. Far from it, these cases were in fact expressly approved by Stein J in a recent judgment (Bottero -v- Pittwater Council & Butcher ((1995), LEC Unreported 5 December 1995 at pp. 8 and 9). Moreover, there is no inconsistency between these cases.

Before seeking to apply these principles to the facts, it is appropriate to highlight a point of particular interest raised by the present case. This concerns the approach to be taken to a purpose, e.g. a hotel, the definition of which has apparently evolved over time. Even if one comes to the conclusion that premises have been operated as a hotel and that this purpose is the relevant one for the application of s.109(1), does this purpose denote those activities that typified a hotel upon the introduction of planning controls (in this case in 1946), or does it denote those additional or evolving activities that are characteristic of an inner city hotel as at 1996? One answer to this is to recall the emphasis on the importance of arriving at an expansive or general definition or description of the purpose for which the land was used, adopted in ; ; and .

Another answer lies in the judgment of Reynolds JA in Drummoyne -v- Cavallaro (1982) 46LGRA 416, in which it was accepted that use for the purpose of a "modern service station" embraced activities that were not always offered by such facilities (namely the selling of confectionery, soft drinks, and maps in addition to the mechanical servicing and refuelling of vehicles). Reynolds JA thus indicates that such an evolution within these categories of use, over time, is permitted. Of course, such an evolution cannot now encompass any alteration in the particular activities carried out upon the premises that could be regarded as an enlargement, intensification or expansion of the use contrary to s.109(2)(c). (As to the more restrictive definition of "existing use" now required due to the enactment of s.107(2)(c), see Ku-Ring-Gai Council -v- Mobil Oil Australia Ltd (15 April 1992, -Unreported, Court of Appeal per Clarke JA), a decision which may be applied by analogy to s.109(2)(c)). In other words, the contemporary referents of the definition are decisive in determining the ambit of a purpose underlying an existing use entitlement. To hold otherwise would lead to the acceptance, in this case, of the Council's submission that certain activities cannot be referents of the term "hotel", because these activities would not have been characteristic of the premises when used for the purpose of a hotel when planning instruments first applied to the premises in the 1940's. (Incidentally there is no evidence that pool tables were not in use in hotels in the 1940's).

Analogical support for this approach may be gleaned from the authorities relating to the interpretation of statutes. In statutory interpretation, words are usually given their current meaning, not their meaning at the time the statute was passed, by virtue of the doctrine that "an Act is regarded as always speaking": see F. Bennion Statutory Interpretation (1984, London, Butterworths); Pearce, Statutory Interpretation In Australia 3rd Ed, 1988, Sydney, Butterworths), Paras 4.7 - 4.8. This doctrine does not result in the Courts amending, even in a notional sense, the text of a statute. This is because the connotation of the word in question, has, and necessarily will, remain the same. It is the denotation (or the particularisation of the referents of a word) that is held to have changed. This is clear from the following passage in the judgment of Barwick CJ in Lake Macquarie Shire Council -v- Aberdare County Council (1970) 123CLR 327 at 331:

"It may be granted that 'gas' in these statues denoted coal gas. In the earlier of three Acts, that clearly appears from the various provisions of the Acts themselves; and no doubt in 1906, gas denoted coal gas, because no other form of gas for lighting and heating was in common use. Nonetheless the connotation of the word 'gas' may not be so described. The Act here speaks of 'gas', not of coal gas. In my opinion, it thus selects the genus, and not any particular species of gas.

I can see no reason why, whilst the connotation of the word 'gas' will be fixed, its denotation cannot change with changing technologies. Indeed, in my opinion, it would be odd that in granting trading powers, including the power to supply gas for on access by the local government bodies to developing methods of trading in gas for heating and lighting.

But in my opinion the question need not be resolved on any such general considerations. It is to my mind plain that the word 'gas' in the paragraph in s.418 cannot be limited in its denotation to coal gas; nor could it be so confined in the proviso to s.418(1).

In my opinion, throughout the reference in s.418(1)(b) and the proviso is to the genus gas which will apply to them as new species of gas are made available. That meaning is not to be altered, in my opinion, by the addition of par. (1) which, it seems to me, was simply inserted for more abundant caution."

The parallel between this method of interpretation, by which a word is deemed to refer to a genus of referents rather than a particular species, and the approach of McHugh JA in The Royal Agricultural Society to the identification, and later application, of the genus of the purpose of an existing use is apparent. In my opinion, a similar approach may be employed in relation to question in issue in this case. The resolution according to this principle may be phrased thus: while the connotation of 'hotel' has remained unchanged since 1946, its denotation has varied over time and today embraces, for example, the use of pool tables and casino/gaming machines.

In passing, it is surely significant that the Applicant deliberately abandoned its claims in respect of the casino/gaming machines but nonetheless pressed its claims in respect of the pool tables. It is difficult to appreciate why these two activities should have been so sharply distinguished in the Applicant's case.

The application of the abovementioned principles to the facts of the present case leaves me in no doubt of the following conclusions:

(1) The purpose for which the subject premises have been used since the 1930's is properly categorised as that of a licensed "hotel";

(2) The setting out and provision of pool tables of the numbers alleged (10, 14 or 26 at various times, but currently 14) in this case is an activity ancillary and subordinate to the dominant use of the subject premises as a hotel;

(3) The definition of the dominant purpose (being the operation of a hotel) is sufficiently broad to embrace these pool table activities or in other words, the existence of the pool tables does not require or justify a change in the characterisation of the purpose of the existing use as a hotel; and

(4) This definition must be applied with sensitivity to the contemporary meaning of the term "hotel" (by virtue of the doctrine discussed earlier), and this fact further compels the above conclusion that these pool table activities are referents of the relevant definition.

It is trite to say that planning law generally focuses on the use of land without regard to matters such as legal title to the land or underlying financial arrangements for the land uses. In the context of the hotel building, considered as a whole, it is furthermore difficult to see how it could reasonably be contended that the operations associated with the pool tables on the ground floor are other than an incidental use associated with the dominant use of the premises as a modern hotel in the inner eastern suburbs of Sydney. The evidence establishes that the appropriate genus of the activities carried out prior to the coming into force of Ordinance 105 in 1946 is that of a hotel. The fact that certain activities were common in hotels of the 1940's provides no town planning rationale, to use the terminology of Kirby North Sydney M.C. -v- Boyts Radio & Electrical (1989) 16NSWLR 50 at 65, to confine the activities embraced by the existing use to those activities. As a result, all the common features of modern hotels of the area in question comparable to the Hampton Court Hotel come under the aegis of the existing use rights attaching to the subject premises as they are used as a hotel. Pool tables are a now common feature of NSW hotels. I accordingly must reject the Council's arguments to the contrary.

It was mentioned in passing, by Mr Whealy QC for the Respondent, that the jurisdiction of the Licensing Court over the internal workings and management of the Hampton Court Hotel, by virtue of the Liquor Act 1982, should influence this Court's determination of the planning issues in dispute before it. In fairness to the submission, it was put only if I overrode the Respondent's objection to the admissibility of Inspector Emery's affidavit. It is sufficient to recall what I recently said in South Sydney C.C. -v- Houlakis & Anor (Unreported 3 October 1995):

"In referring to the possible outcome of the pending proceedings before the Board, I should not be taken to be implying any abdication of the prime statutory function of this Court to adjudicate upon planning disputes in all their manifestations (including disputes in respect of premises licensed under the Liquor Act 1982)."

I therefore would answer the question of law framed at hearing in the negative and would accordingly declare that no development consent is required for the provision of pool table facilities on the ground floor of the Hampton Court Hotel for the reason that such activity is entirely incidental to the use of the premises as a hotel, and is an activity that is covered by an existing use (or properly, "existing consent") right under s.109(1).

For the foregoing reasons, I make the following orders:

1. The claims contained in paragraphs 1 and 2 of the application are dismissed.

2. The claims otherwise contained in the application are reserved.

3. Leave given to the parties to approach the Registrar in order to obtain a hearing date for the resolution of any other matters relating to building approval that are not resolved by agreement between the parties, as foreshadowed at trial, subsequent to this decision.

4. Liberty to apply on three days' notice for any other appropriate relief.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 16 PAGES ARE A TRUE AND ACCURATE COPY OF THE REASONS FOR JUDGMENT HEREIN OF HIS HONOUR MR JUSTICE BIGNOLD

Planning and Assessment Act 1979

SOUTH SYDNEY CITY COUNCIL v. C. MALONEY PTY LIMITED [1996] NSWLEC 48 (29 February 1996)

SOUTH SYDNEY CITY COUNCIL v. C. MALONEY PTY LIMITED [1996] NSWLEC 48 (29 February 1996)

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SOUTH SYDNEY CITY COUNCIL v. C. MALONEY PTY LIMITED [1996] NSWLEC 48 (29 February 1996)