Swansea RSL Club & Rosecorp Pty Limited v Council of the City of Lake Macquarie

Swansea RSL Club & Rosecorp Pty Limited v Council of the City of Lake Macquarie - [2005] NSWLEC 755 - NSWLEC 2006 case summary — Zoe

[10]

JUDGMENT 1 Talbot J: Swansea RSL Club and Rosecorp Pty Limited ("the applicants") propose to carry out development on land at Catherine Hill Bay in the City of Lake Macquarie being Lot 2031 DP 841175 and Lot 2 Section 1 and Lot 1 Section K DP 163 together with Lots A and B DP 384745 comprising an area of approximately 5.5 hectares within mining lease CCL 706. 2 Coal mining commenced at Catherine Hill Bay in 1872 and a coal preparation plant was constructed on the land in 1954. 3 Development consent for "coal preparation and coal handling facilities, reject emplacement and related facilities" on the subject land and other land was granted on 9 December 1988 (DA 87/0184). Development consent for "modifications to coal preparation plant reject emplacement and related transport facilities and water supply pipeline" on the subject land and other land was granted on 9 December 1988 (DA 87/0185). A modification of the development consent for coal preparation and coal handling facilities, reject emplacement and related facilities (DA 87/0185) was granted under s 102 of the Environmental Planning and Assessment Act 1979 ("the EPA Act") as it then was on 4 August 1991. Coal extraction from two of the mines within the mining lease CCL 706 ceased in 2002 whereas one mine, the Chain Valley Mine, is still operating. The coal preparation plant ceased operation in mid July 2002. 4 On 21 February 2003 the Minister for Mineral Resources granted consent to suspend mining operations in the area of the Wallarah colliery holding based within CCL 706 subject to conditions including the preparation of a Mine Closure Plan and that all closure works and rehabilitation of the two closed collieries and the Catherine Hill Bay Coal Preparation Plant and associated infrastructure was to be completed within two years of the approval. Works required to be undertaken under the Mine Closure Plan are continuing and still to be completed. 5 The development application the subject of the proceedings is for:- (a) The conversion, extension and change of use of 2 existing buildings at the Catherine Hill Bay Coal Preparation Plant into a registered club with a gross floor area of 5,329m2 and sports club with a gross floor area of 2,379m2 with bowling green, landscaping and associated parking; (b) 96 residential apartments over 5 levels with associated car parking; (c) subdivision to amalgamate the existing lots that are the subject of the application into 3 lots. Planning controls 6 The following history and explanation of current town planning controls is agreed:- Town planning controls first applied to Catherine Hill Bay with the gazettal of the Northumberland County Planning Scheme (NCPS) November 1960. Under the NCPS the Land was zoned 1(c) Non -urban village. NCPS was amended by the gazettal of Northumberland Local Environmental Plan No.1 (Northumberland LEP) on 21 August 1981. Under Northumberland LEP the Land was zoned 1(c) Non-urban village.

[22]

20 The principal thrust of the applicants' argument is that the constrained effect of cl 10 and Schedule 10 of LMLEP 2004 is that a private operator of a mine does not have the benefit of those provisions. They only apply to development by a public authority. Moreover notwithstanding that actual mining has ceased the continued use of the land comprises mining purposes. 21 Item 1 in Schedule 10 refers to "persons carrying on railway undertakings" whereas items 2, 3, 4 and 5 refer specifically to "persons carrying on public utility undertakings." Items 8, 9 and 10 identify particular authorities, namely the Forestry Commissioner, a rural lands protection board, the Council or the Department of Infrastructure, Planning and Natural Resources. Item 7 makes no reference to any person, individual or undertaking but simply refers to the carrying out of any development required in connection with any road. The only reference to an owner or lessee is in item 6. A "public utility undertaking" is defined in the Dictionary to LMLEP 2004 and refers to specific undertakings carried on or permitted or suffered to be carried on by or by authority of any government department or under the authority of or in pursuance of any Commonwealth or State Act but makes no reference to an undertaking for a mine. 22 Section 35 of the Interpretation Act 1987 relevantly provides that a heading to a schedule to an instrument shall be taken to be part of the instrument. Section 3(1) of the Interpretation Act includes an environmental planning instrument within the meaning of an instrument. 23 The applicant also makes reference to s 34 of the Interpretation Act to justify the use of the heading to cl 10 to assist in the ascertainment of the meaning of the provision. However, as the definition of instrument in s 3(1) clearly distinguishes between a statutory rule and an environmental planning instrument and as s 34 is confined to the interpretation of a provision of an Act or statutory rule, no direct assistance can be gained from s 34. 24 Applying a common sense approach to the interpretation of LMLEP 2004 and having regard to the natural or ordinary meaning of the words contained in cl 10 and the description of a mine contained in Item 6 of Schedule 10, I prefer the approach taken by the respondent council and read item 6 as not being confined by the heading to the Schedule. The failure to include mines and roads in the various categories of development carried on by public authorities otherwise mentioned in Schedule 10 does no harm to the effect of cl 10(b). It is unqualified by the identity of the person carrying out the activity subsequently specified in Schedule 10. Clause 10 is the substantive provision of LMLEP 2004. No assistance is gained from the heading to the clause. It is not a heading to a Part, Division or Subdivision of the LEP. Any conflict between the substantive formal provisions of cl 10 and the ancillary provision of item 6 in Schedule 10 should be resolved in favour of the substantive provisions in cl 10. 25 I agree with the submission made by Mr Robertson SC, on behalf of the council, that the terms of item 6 in Schedule 10 are clear and that consistent with the principles of construction in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [70]-[72] the general heading to the Schedule should give way to the substantive operation of the instrument. 26 The provisions of LMLEP 2004 are in contrast to the combined effect of cl 35 and Schedule 1 to the Model Provisions which make no distinction for the operation of a mine by a public authority. Although it might be argued that the specific inclusion of headings in LMLEP 2004 gives rise to a distinguishing intent on the part of the draftsperson of the LEP, I prefer to think that having regard to the unique statutory position of mines and mining generally (see Kembla Coal and Coke Pty Limited v Wollondilly Council (1994) 84 LGERA 263) in a planning context it is more likely than not that the unqualified application of the heading to Schedule 10 across the board was inadvertent, mistaken or unintended. Alternatively mines and roads were recognised as generally relying on statutory authority for their creation, construction and maintenance. 27 The respondent also relies on the provisions of cl 19 of LMLEP 2004 which relevantly provides as follows:- 19 Development for the purpose of a mine Nothing in this plan prevents a person, with development consent, from carrying out development for the purpose of a mine: (a) on any land to which this plan applies, if the mine is underground, or (b) on land that is shown as land with future open cut mining potential on the map marked "Lake Macquarie Local Environmental Plan 2004 - Areas of Future Open Cut Mining Potential", if the mine is an open cut mine. 28 The applicant relies on the significant surface facilities that were presumably used to prepare and handle the coal for its submission that the mine carried out on the land was not underground as contemplated by cl 19. The council's reasoning is that the sole reason for the existence of surface infrastructure is to facilitate the purpose of an underground mine. Accordingly Mr Robertson says the rehabilitation of the site (if it is to be regarded as development for the purpose of a mine) is contemplated by cl 19.

[24]

30 It is further put by Mr Robertson during submissions that the area undergoing rehabilitation is unrelated to the area of land on which development is proposed. However the primary argument is that the mining use is permissible under cl 19(a), with development consent, particularly when reference is made to State Environmental Planning Policy 45 - Permissibility of Mining ("SEPP 45"). 31 Notwithstanding that the operation of cl 19 of LMLEP 2004 was not raised by the council until submissions nevertheless it has been dealt with extensively by the applicant in its response. Once such a fundamental issue is raised in relation to a jurisdictional fact it is appropriate for the Court to determine it notwithstanding the failure to plead it. Otherwise there is a prospect that the Court might proceed to judgment on the basis of a legal error. The submissions by the council have not been disallowed notwithstanding urging by Mr Craig QC to do so. No application for an adjournment has been made in order to allow the issue to be more effectively dealt with by the applicant. 32 Clause 5 of SEPP 45 provides:- (1)If mining is permissible on land with development consent in accordance with an environmental planning instrument if provisions of the instrument are satisfied, mining is permissible on that land with development consent without those provisions having to be satisfied and those provisions have no effect in determining whether or not mining is permissible on that land or to the determination of a development application for consent to carry out development for the purposes of mining on that land. (2)Without limiting subclause (1), if mining is permissible on land with development consent in accordance with an environmental planning instrument if the consent authority is satisfied as to certain matters specified in the instrument, mining is permissible on that land with development consent without the consent authority having to be satisfied as to those specified matters. 33 Mr Robertson submits that if cl 19 is to be construed strictly as the applicant contends so that mining is permissible only if no part of the mine in the subject land is above the ground then cl 5 of SEPP 45 removes that constraint. It would follow therefore that cl 19 must be construed as if all mining is permissible with consent. Even if the relaxation of the prohibition upon mining created by cl 19 is not "a provision of the instrument" which is required to be satisfied in order to render mining permissible as the applicant submits, nevertheless it is obvious that an underground mine cannot operate without surface facilities and infrastructure. They are clearly subsumed in the overall purpose of underground mining in contrast to an open cut mine where essentially all components are on or exposed to the surface.

[30]

43 In accordance with the principles explained in Foodbarn Pty Limited v Solicitor General (1975) 32 LGRA 157 at 161 that where a part of premises is used for a purpose which is subordinate to the purpose which inspires the use of another part it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being used. Having regard to the whole of the evidence it is difficult to avoid the conclusion that both houses were erected for use in connection with the dominant use of the land namely for the purposes of a mine and the use has continued on that basis up to the present time so that for planning purposes the use of the houses was not a residential use but a mining use. 44 There is a further difficulty with the applicants' case in that the Jetty Master's Cottage is located partly on Lot 2031 and partly on an unformed road. Technically the whole of Wallarah House and part of the Jetty Master's Cottage are on a single allotment of land in that they stand on the one lot in the deposited plan. Nevertheless it is my view that it is artificial to extend the definition of dual occupancy - detached to incorporate a dwelling which extends beyond the boundaries of that lot. The unformed road is separate and distinct from Lot 2031 and accordingly the Jetty Master's Cottage, as a single entity, must be regarded as being on two separate parcels or lots. 45 If I am wrong and the houses are to be regarded as used for occupation as dwellings quite independent of the mine use then cl 59(4)(d) of LMLEP 2004 applies so that the use of each house becomes a permissible use as a dwelling house which is development that may be carried out with development consent. 46 Whatever view is taken I am driven to the conclusion that the two houses do not fall within the definition of dual occupancy - detached and accordingly are not prohibited on that account but furthermore they are permissible as dwelling houses pursuant to cl 59. The consequence is that LMLEP 2004 did not have the effect of prohibiting the use of the houses as dual occupancy - detached. If indeed the appropriate use to be ascribed to both houses is mining, as I think it is at least up to 2002 and continuing to the present in respect of the Jetty Master's House, then the conclusions I have already reached in respect of that use are equally apposite to this issue.

[35]

52 The Clubs Act, in section 4, defines a registered club as a club in respect of which a certificate of registration issued under Part 2 of the Act is in force. Section 9 of the Act directs the Licensing Court not to grant an application for a certificate of registration of a club if it is not satisfied that the club meets the requirements specified in s 10(1). Section 10 contains a number of requirements for the purposes of s 9 including that the club be established for the purpose of providing accommodation for its members and their guests. The combined effect of s 10(1)(f) and (g) is that the club shall have premises of which it is the bona fide occupier for the purposes of the club and which are provided and maintained from the funds of the club and shall contain accommodation appropriate for the purposes of the club. The applicants rely on the common meaning of accommodation as including something which supplies a want, convenience or living premises for the purpose of its members. 53 It is anticipated by the applicants that it will be a condition of the development consent that the club be registered under the Clubs Act. In this context they submit that provided the accommodation is limited to members and guests (or otherwise for club purposes) it falls within the terms and intent of the definition. 54 Alternatively if the residential components identified in the development application can be characterised as ancillary to the use of a club the residential components can be developed in the 7(4) zone with development consent. It is recognised by the applicants that the issue of whether accommodation forms part of the club or is ancillary to the club use is related to the management procedures adopted by the club. 55 The management arrangements are explained in the SEE as follows:- Catherine Hill Bay Bowling Club and the Swansea RSL are in the process of amalgamation. Amalgamation application No 229136 is a [sic] scheduled for hearing by the Licensing Court on 5 July 2004. The intention is to transfer the license of the bowling club to the new location. Swansea RSL will take a lease over the club site. The RSL will build and own the new club premises with Rosecorp arranging finance. Once established the premises will be run as a club in keeping with the conditions of the licence. A manager has been appointed for the Bowling Club and the current operational procedures, including security, will transfer to the new premises. Once fully operational on the new site the club will target the conferences and functions market. 56 In a report prepared in support of the Development Application and comprised as an appendix to the SEE the architects make the following observations in the context of the social dimensions required to be addressed pursuant to State Environmental Planning Policy 65 Design Quality Principles ("SEPP 65"):- It is anticipated that the developed site will add in excess of 150 people to the existing residential population of the area. This development will add to the social structure of the area and assist in creating a viable community. The new development will have no negative impacts on any social groups but will have a positive impact on the developing Breakfast Point neighbourhood. The diversity of apartment designs and sizes and their location within the development will result in the apartments being for sale at a range of prices. This will ensure that there will be a large range of social personalities introduced into the area and this will have a positive impact on the social richness of the area. 57 A draft form of lease has been admitted as an exhibit as evidence of a document that will be required to be entered into as a condition of development consent. Swansea RSL Club is identified as the tenant and the schedule refers to the permitted use of the premises as follows:- (a) Club Building - permitted use is to provide social, recreational, literary, sporting and athletic facilities of a Club, which may include bar rooms, TAB facilities, poker machines, restaurant, function and meeting rooms, rock climbing wall, games and pool lounges, library, scuba pool, rock climbing wall [sic] and other sporting and recreational facilities; (b) Residential Accommodation - permitted use is to provide accommodation for members and guests of the Tenant, whether or not for a fee; (c) Car Park - permitted use as a car park.

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Judgment (66 paragraphs)

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