Boutros v Strathfield Municipal Council

[2005] NSWLEC 76

Land and Environment Court

of New South Wales

CITATION:

Boutros v Strathfield Municipal Council [2005] NSWLEC 76

PARTIES:

APPLICANT
Chalita Boutros

RESPONDENT
Strathfield Municipal Council

FILE NUMBER(S):

10677 of 2005

CORAM:

Nott C

KEY ISSUES:

Words and Phrases :- proposed reception centre (to which the general public will not be invited) is not a "place of assembly"

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 s97

CASES CITED:

Cook v Wollongong City Council (1980) 41 LGRA 54 at 158 159;
Finn v Shoalhaven City Council (1995) 86 LGERA 425

DATES OF HEARING:

16 February 2005

EX TEMPORE JUDGMENT DATE:

02/16/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr P Clay, barrister
SOLICITORS
Pike Pike & Fenwick

RESPONDENT
Mr A Seton, solicitor
SOLICITORS
Marsdens

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Nott C

16 February 2005

10677 of 2004 Chalita Boutros v Strathfield City Council

JUDGMENT

1 This is an appeal against the council’s refusal of a development application relating to the property at 78-80 Cosgrove Road, on the corner of Pilcher Street, Strathfield South. The application proposes the demolition of an existing factory building and associated structures and the construction of a reception centre.

2 Mr J Lovell, consultant town planner, described the proposal in more detail in his report, exhibit C:

In summary, I would describe the proposed development as comprising demolition of the existing improvements and construction of a two-storey reception centre incorporating three reception areas ranging in size from 560 sq m to 1600 sq m. The facility is intended to be used for weddings, engagements and private parties with the individual reception areas hired for a fee. It is expected that the majority of events will occur on Friday, Saturday, and Sunday evenings between approximately 5pm and 3am. Off-street car parking is proposed for 255 vehicles within a two-level basement structure with separate provision made for drop off/pick up facilities adjacent to the main entrances to the individual reception areas.

3 The parties were directed at a call-over to prepare for a hearing on a preliminary point as to whether or not the proposed development is permissible under the Strathfield Planning Scheme Ordinance. It was agreed that the preliminary hearing should be on the question whether the proposed development falls within the definition of “place of assembly” or not.

4 If the proposed used does fall within that definition, it was agreed that the proposed development is prohibited, since the subject land is located in the 4 Industrial zone under that ordinance. If the proposed development does not fall within the definition of place of assembly, it was further agreed that the proposed development would be “commercial premises” as defined in the ordinance, and that subject to consideration of other provisions of the ordinance the use may or may not be permissible.

5 In my opinion it is somewhat unfortunate that the parties agreed to split the hearing, because if a finding is made that the premises are not a place of assembly, then there is still a question as to whether the particular type of commercial premises are permissible with consent. Not all commercial premises are prohibited, but some are, as seen in the table to cl 22 of the ordinance. In addition, if I hold that the proposed development in the general sense is commercial premises, a determination would then have to be made as to whether the proposed development is capable of being granted consent because of clause 61GB of the ordinance.

6 In order to determine the questions relating to the particular commercial premises, however, additional facts would be required to be presented to the Court, and therefore I confine my consideration to whether or not the proposed development is a place of assembly. I do not express any definite opinion as regards the merits of the proposal, although on the face of it there could be problems for the applicant having regard to the nature and character of surrounding existing uses. However, I withhold making any definite decision on that point because it was agreed by the parties that I should not do so.

7 Clause 4(1) of the ordinance defines “place of assembly” to mean—

a public hall, theatre, cinema, music hall, concert hall, dance hall, open-air theatre, drive-in theatre, music bowl or any other building of a like character used as such and whether used for the purposes of gain or not, but does not include a place of public worship, an institution or an educational establishment.

8 During the hearing on this preliminary point, the applicant requested that the proposed use be more narrowly described, and it is in respect of the more narrow description that I will make my ruling.

9 The proposed use is now to be described as a reception centre to be used for weddings, engagements and private parties whether they are of a personal or commercial nature, not being any use of a like character to a public hall, theatre, cinema, music hall, concert hall, dance hall or music bowl, and there being no invitation to the general public to attend or general invitation to the public to attend.

10 The definition of “place of assembly” (identical to that in the Strathfield Planning Scheme Ordinance) was the subject of consideration by Powell J in Cook v Wollongong City Council (1980) 41 LGRA 54 at 158-159. The words “like character” are to be given a wide meaning, according to his Honour; and his Honour went on to say:

I am disposed to think that the essential characteristics of a “place of public assembly” in this ordinance is that it is a place to which members of the general public are either entitled, accustomed, or invited to have resort, whether upon payment of a fee, or otherwise, for some public or private purpose—and that such purposes are not restricted to, but at least include entertainment and recreation. It follows, in my view, that a roller skating rink is for the purpose of this ordinance a “place of public assembly”.

11 In Finn v Shoalhaven City Council (1995) 86 LGERA 425, Bannon J in this Court held that a scout hall was not permissible in the particular open space zone under the Shoalhaven Local Environmental Plan 1985 and in the course of his consideration his Honour held that the proposed scout hall was a place of assembly.

12 The answer to the preliminary question posed by the parties is clearly not easy to resolve. No doubt in a reception centre where a wedding is being held, music could be played and there could be dancing, but the characteristics of a reception centre, used for example for a wedding reception, makes it a different type of use in my opinion to the types of uses that fall within the definition of place of assembly in the Strathfield Planning Scheme Ordinance.

13 The general public will not be invited to attend any function at the proposed centre if it is approved, and I think that this distinguishes the proposed use from other uses that might fall within place of assembly, even though that definition encompasses a wide variety of uses.

14 I therefore find that the proposed use is not a "place of assembly" as defined by the ordinance.

15 My finding does not bring to an end these proceedings because as I mentioned at the beginning, the applicant will still have to show that the proposed use as commercial premises is a type of commercial premises in respect of which it is open to the council to grant approval, and that such consent should be granted as a matter of merit.

16 By consent, I adjourn the proceedings to the Registrar’s call-over on 9 March 2005.

______________
A J Nott
Commissioner of the Court
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