Bayside Apartments v Woollahra Municipal Council

[2004] NSWLEC 408

Land and Environment Court

of New South Wales

CITATION:

Bayside Apartments v Woollahra Municipal Council [2004] NSWLEC 408

PARTIES:

APPLICANT
Bayside Apartments

RESPONDENT
Woollahra Municipal Council

FILE NUMBER(S):

11069 of 2004

CORAM:

Murrell C

KEY ISSUES:

Development Application :- Whether on the facts the proposal for a licensed cafe is permissible in the zone.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Woollahra Local Environmental Plan

CASES CITED:

The Turnbull Group v North Sydney Council;
The Minister for Planning v Rose Bay Marina Pty Ltd ;
Shire of Perth v O'Keefe and Ors. 1964 & North Sydney Council v Voights Radio & Electrial 1989 67 LGRA 344;
Foodbarn Pty Ltd v The Solicitor General 1975 32 LGRA

DATES OF HEARING:

30/06/2004

EX TEMPORE
JUDGMENT DATE :

06/30/2004

LEGAL REPRESENTATIVES:

APPLICANT
Ms E Denning-Franklin, solicitor
Mr G Green, solicitor
SOLICITORS
Pike Pike and Fenwick

RESPONDENT
Ms S Duggan, barrister
Mr M Connell, solicitor
SOLICITORS
Michell Sillar

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

30 June 2004

11069 of 2003 Bayside Apartments v Woollahra Municipal Council

JUDGMENT

1 This is a judgment for a matter that commenced on-site. The application is to serve alcoholic beverages in the approved cafe. The premises are known as 85-87 New South Head Road, Edgecliff, and nearing completion on the subject site is a new residential apartment building with some ground floor office-cum-commercial uses. The site is Zoned 3 (B) under the Woollahra Planning Scheme and known as Special Business. The description of the zone includes:

The 3B business zone is a secondary commercial zone applying to a large area of the Edgecliff commercial centre and small sections of the Double Bay commercial centre. The scale of new development which may be achieved in this zone under floor space controls is less than that that which may occur in the general business A zone. A broad range of uses is permissible including dwellings attached to commercial and retail buildings, an urban consolidation initiative.

The objectives of the zone are:


(a) To establish a commercial zone allowing a mix of commercial, residential and tourist accommodation purposes.

(b) To prohibit all retail and high service generating uses which result in traffic parking and vehicle access constraints.

(c) To allow residential development both independently of and mixed with non-residential development in order to promote urban consolidation.

2 The uses which are prohibited include restaurants and shops. The zoning framework table is such that development which may be carried out without development consent includes drainage and roads; development which may be carried out only with development consent allows for all development other than development included in 4 above, which I have just read, and 6, development that is prohibited. Development prohibited includes amusement centres, amusement parks, bulk stores, car repair stations, dwelling houses, gas holders, generating works, helipads, heliports. Industries are junk yards, motor show rooms, panel beating, spray painting, restaurants, transport terminals, shops and warehouses. This provides the context in which the zone operates.

3 In terms of definitions, which become critical to this appeal, commercial premises are defined as:

A building or place used as an office or other business or commercial purposes, but does not include a building or place elsewhere specifically defined in this schedule or a building or place used for a purpose elsewhere specifically defined in this schedule.

4 The other relevant definitions are “restaurant” means:

A building or place or both with seating facilities where the sole purpose is the preparation and serving of food and beverages for consumption by patrons within the building or place or both and which may have a liquor licence.

5 And “shop” means:

A building or place used for the purpose of selling, exposing, or offering for sale by retail goods, merchandise or materials, but does not include a building or a place elsewhere specifically defined or a building or place used for the purpose elsewhere specifically defined.

6 It was noted that the original development on the site included a hotel and bottle shop, and the approval for the residential flat building was also subsequently amended such that the applicant did not wish to proceed with a bottle shop, hotel, etcetera, and a previous approval allowed for a cafe in the location which is on the eastern side of the building at ground floor level.

7 The application states, change of use to “serve alcoholic beverages in the approved cafe” and there was an approval granted for a cafe in the location where the Court is now considering the development application.

8 By way of background this matter was also the subject of a decision by the Chief Judge in December 2003 where his Honour stated that a preliminary question of law did not arise as the use was a question of fact and that:

The answer to the question of the proper description of this proposal will depend entirely upon the way the applicant defines the proposed use.

9 The applicant submitted that the proposed use is one that is an innominate use, that is it should be seen as commercial premises in terms of the zoning table; that it is not a restaurant, because the restaurant’s sole purpose is the preparation of food sold on the premises, and the cafe, as approved, does allow for takeaway coffee, sandwiches, and other foods prepared on the premises.

10 The on-site inspection allowed the Court the opportunity to see the partial fit-out, of the premises that has been approved as a cafe. The role of the Court is to determine, it was agreed, that this should be a question of fact and degree as to whether the serving of alcoholic beverages should be allowed in the approved cafe, and how it should be characterised.

11 I have had the benefit of reading a number of judgments in this matter. I do, however, stress that it is a matter of fact and degree in terms of the evidence that I have before me. The Turnbull Group v North Sydney Council is a judgment of Sheahan J 1998 NSW LEC 253 14 October 1998 and in this judgment there is a summary of many other judgments. Whilst many relate to existing use rights, nonetheless it does provide some background in terms of looking at the characterisation of uses.

12 I have also had the benefit of the judgment of The Minister for Planning v Rose Bay Marina Proprietary Limited 2003 NSW COA 119 19 May 2003.

13 In terms of the characterisation of uses it was stated in the judgment of Turnbull, a reference that his Honour made to the case of Shire of Perth v 0’Keefe and Others 1964, and North Sydney Council v Voights Radio and Electrical 1989 67 LGRA 344. In the case of 0’Keefe it is noted that Menzies J and Owen J agreed with Kitto J. Menzies J said:

The purposes for which the premises were being used at the relevant time was pottery-making. It is conceded that pottery-making falls within the description of light industry but it does not follow either in logic or town planning that the use for one purpose which falls within the category of light industry is to be regarded as a use for any purpose which falls within that category.

14 Further his Honour comments:

Different principles apply in the characterisation of uses in existence as compared with uses proposed in new development applications. When one approaches the task of characterising an existing use one adopts a liberal and broad construction in favour of the user. But when one characterises a development application one close examines the precise activities proposed.

15 In Foodbarn Proprietary Limited v The Solicitor-General 1975 32 LGRA Glass J said:

Where the whole of the premises is used for two or more purposes, none of which subserves the other, it is in my opinion irrelevant to enquire which of the multiple purposes is dominant. If any one purpose operates in a way which is independent and not merely incidental to other purposes is prohibited it is immaterial that it may be overshadowed by the others whether in terms of income generated space occupied or ratio of staff engaged.

16 Meagher JA went on to say in O’Donnell:

Notwithstanding the principles laid down in Foodbarn it does not follow that a use which can be said to be ancillary to another use is thereby automatically precluded from being an independent use of the land. It is a question of fact and degree in all the circumstances of the case whether such a result ensues or not …

When one use of the land is by reason of its nature and extent capable of being an independent use it is not deprived of that quality because it is ancillary to or related to or interdependent with another use. If a book publisher opens a salesroom at his publishing house to sell products the selling of books is an independent use although ancillary to the use of the publishing. The series of cases dealing with dual uses show that a convenience store and a petrol station are two independent uses although the former is clearly ancillary to the latter.

17 In this particular case I must look at the definitions in the LEP and what was proposed. It is secondary legislation and a common sense approach must be taken and not a nonsensical interpretation. Based on the site inspection and the facts to the Court and the evidence I consider that the use is one that is characterised as a restaurant. And a restaurant is prohibited in the zone.

18 It was submitted on behalf of the applicant that “restaurant”, as defined in the Woollahra LEP states the sole purpose. The fact that this cafe is going to be also serving takeaway food, one can ask the question in other restaurants, even though the sole purpose is to serve the patrons at that restaurant, and the preparation of food on those premises, I can say that takeaway could be ancillary to that restaurant. I do not need to make a determination on this point, however, this demonstrates how I have approached the categorisation of this use. That is a restaurant with a takeaway ancillary component would be permissible where the zone permits restaurants. On the other hand one cannot say on the facts and the evidence that I have before me that these premises operating as a cafe with certain takeaway components, to then be extended for a liquor licence to be sold on the premises, is an ancillary use. I say this on the basis of the LEP clearly prohibits ‘restaurants’ in the zone. To construe the operation of this cafe and the selling of liquor as not to fall into the category of ‘restaurant’ under the Woollahra LEP, on my understanding of the way the premises would operate, could not be substantiated.

19 The respondent submitted that the applicant has also sought an ‘on-licence’ in terms of a restaurant and in that regard there was tendered to the proceedings a fact sheet from, the Liquor Licences in New South Wales Department of Gaming and Racing January 2001. This sets out and describes the forms of ‘on-licences’. The categories for ‘On-licences’ in this document are: restaurant; aircraft; airport; motel; public hall; theatre; university; vessel 18(4)G. The only category that one could construe an ‘on-licence’ with for these premises is a ‘restaurant’.

20 The primary purpose of a restaurant is defined in the above document as:

Premises where meals are regularly sold to the public for consumption on the premises and does not include premises to which a night club licence relates. All licensed restaurants, including those with dine or drink authority must operate at all times as a bone fide restaurant, with proper facilities including kitchen amenities and other facilities to support the primary purpose in sale and consumption of liquor.

21 It was seen that whilst there are not toilets within the confines of the subject premises there are toilets that would fit or satisfy the requirements of the on-licence for a restaurant. I realise that is under other legislation and clearly it is not determinative of my judgment or my categorisation of findings of fact in this matter. But nonetheless it reinforces my decision and I would be nonsensical to say that the proposed development could not be broadly categorised as a restaurant.

22 During the submissions made on behalf of the applicant it was sought to have the use classified as ‘commercial premises’ despite the description in the development application and in fairness to the applicant I have considered the proposal in terms of ‘commercial premises’ despite what the wording on the application form. However, I do not believe that the proposed use an innominate use falling under the category of commercial premises. However, if this reasoning is followed it would more likely be characterised as a “shop”.

23 In terms of the Woollahra LEP commercial premises are “premises, or uses, which are not otherwise defined”. In my opinion, based on the facts, the proposed use to serve alcoholic beverages in the approved cafe would fall into the category in the LEP of a restaurant not commercial premises. And restaurants are prohibited in the subject zone. In many respects this is unfortunate for the applicant, but it would be inappropriate of the Court to assess this matter on anything but the facts provided to it in terms of this being a matter of fact and degree as to the question of permissibility. Furthermore, it would create uncertainty in the planning system if one allowed a use to be described in another way so that it would be permissible. That is to place the proposal into another category such as ‘commercial premises’ for convenience just because the take away element is not in the definition of restaurant would be nonsensical. Such an approach could raise existing use rights in the future and it would provide certainty in the planning process.

24 The serving of alcoholic beverages in the approved cafe may be seen as mutually supportive, but in my assessment of the facts of this matter it does not put it outside of the definition of ‘restaurant’ in my opinion.

25 It is noted in the history of the planning of the consent for the property it was formerly a motel and hotel and the building was converted to a residential apartment building pursuant to a consent in November 2001. And as part of the original consent of a hotel/restaurant and bottle shop were approved within the subject building. On 6 December 2002 a development application was lodged seeking consent to a change of use of the ground floor from a hotel to three commercial units and a cafe, and that was approved in February 2003. Condition 2 of that consent requires deleting “hotel, restaurant, bottle shop” from the plans. It also identifies the location of the subject cafe where consent is now sought to serve alcoholic beverages.

26 I must look at this matter in a holistic way in terms of what is the most appropriate characterisation or characterisations of the use or uses. And on the facts I consider the proposal to be a restaurant and restaurants are not permissible in the zone therefore the application must fail. This is unfortunate for the applicant because in the proceedings it was conceded by the respondent that there are no amenity issues of concern.

27 Therefore, on the basis of my assessment the orders of the Court are:

1. The appeal in respect of the premises known as 4/85-87 New South Wales Head Road, Edgecliff, is dismissed.

2. The development application submitted to Woollahra Council, and as amended, to “serve alcoholic beverages

in the approved café” is determined by the refusal of consent.

3. The exhibits are returned.

J S Murrell
Commissioner of the Court
Nmc/rjs