Cai v Launceston City Council

[2024] TASSC 10

[2024] TASSC 10

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Cai v Launceston City Council [2024] TASSC 10
PARTIES:	CAI, Susan
v
LAUNCESTON CITY COUNCIL
TRC MULTI PROPERTY PTY LTD
FILE NO:	2023/587
DELIVERED ON:	15 March 2024
DELIVERED AT:	Hobart
HEARING DATE:	12 March 2024
JUDGMENT OF:	Estcourt J
CATCHWORDS:

Administrative law – Judicial review – Grounds of review – Error of law – Tribunal's interpretation of words in a planning scheme – "directly associated with" and "a subservient part of" – Ordinary and grammatical meaning in light of context and purpose of scheme to be applied – Correct test identified by Tribunal – The question of whether the test was met by the evidence is a question of fact and beyond the scope of an appeal under s 136 of the Tasmanian Civil and Administrative Tribunal Act 2020 – Ground of appeal dismissed.

Tasmanian Civil and Administrative Tribunal Act 2020 (Tas), s 137.
Land Use Planning and Approvals Act 1993 (Tas), s 42.
Kempster v Manning [2006] TASSC 31, considered.
The Wilderness Society (Tasmania) Inc v Wild Drake Pty Ltd [2021] TASFC 12, applied.
Aust Dig Administrative Law [1030]

Administrative law – Judicial review – Grounds of review – Error of law – Contention that Tribunal impermissibly narrowed test for classification of uses by failing to consider whether ancillary uses served visitor accommodation in a subordinate capacity – Relevant test correctly identified by Tribunal – Failure to consider relevant considerations not established – Ground of appeal dismissed.

Aust Dig Administrative Law [1030]

Administrative law – Judicial review – Grounds of review – Error of law – Contention that the Tribunal erred by distinguishing the classification of ancillary uses as a separate question from whether the uses were directly associated with and a subservient part of the visitor accommodation use – Classification of ancillary uses not actually in issue before Tribunal – No error of law detected – Ground of appeal dismissed.

Aust Dig Administrative Law [1030]

Administrative Law – Judicial review – Grounds of review – Irrelevant considerations – Contention that Tribunal took into account irrelevant considerations as to commercial utility, star ratings and business needs of visitor accommodation – Considerations of evidence as to nature and quality of visitor accommodation not irrelevant to issues arising in planning appeal – Ground of appeal dismissed.

Aust Dig Administrative Law [1034]
Administrative law – Judicial review – Grounds of review – Error of law – Contention that Tribunal erred in

law in that a finding that unspecified retail use could be approved as a use directly associated with and subservient to visitor accommodation would prevent enforcement of planning permit – Any future retail use not directly associated with or a subservient part of approved visitor accommodation would in any event be a breach of the planning scheme – Ground of appeal dismissed.

Land Use Planning and Approvals Act 1993 (Tas), s 63(2)(a).

Aust Dig Administrative Law [1030]

REPRESENTATION:

Counsel:

Appellant:	C Scott
First Respondent:	G Williams
Second Respondent:	A Spence SC, E Dordhain

Solicitors:

Appellant:	Billett Legal
First Respondent:	Glynn Williams
Second Respondent:	Page Seager

Judgment Number:	[2024] TASSC 10
Number of paragraphs:	68

Serial No 10/2024 File No 2023/587

SUSAN CAI v LAUNCESTON CITY COUNCIL and

TRC MULTI PROPERTY PTY LTD

REASONS FOR JUDGMENT	ESTCOURT J 15 March 2024
The appeal

1             This is an appeal from a decision of the Tasmanian Civil and Administrative Tribunal (the Tribunal) to affirm a decision of the Launceston City Council (the Council) to grant a permit to the second respondent for the use and development of a hotel on a site known as 123 and 125-133 Patterson Street, and 270 Brisbane Street, Launceston. The permit granted by the Council described the approved use as visitor accommodation including associated restaurant, function centre, wellness centre, retail and bars.

2 Under s 136 of the Tasmanian Civil and Administrative Tribunal Act 2020 (TCATA) the appeal is limited to questions of law.

3             In short, the proposed use and development is for a 4.5-to-5-star hotel which will cost in the vicinity of $50 million to develop. The designs for the hotel include a restaurant, bar, function centre, wellness centre, day spa, and small unspecified retail use. These ancillary uses are to be contained within the same building as the hotel, and together make up 12.42% of the total floor area of the proposal.

4 The second respondent had previously put forward a proposal in the same form. That proposal was refused by the Tribunal for the reason that it did not satisfy cl 15.4.1 P1 of the Launceston Interim Planning Scheme 2015 (the Scheme) because it was not compatible with the streetscape and character of the surrounding area.

5 Following that refusal, the Council initiated an amendment to the Scheme to introduce a specific area plan over the site to specify a building envelope that allowed greater maximum height than was permitted by the applicable zone provisions of the Scheme. The specific area plan, referred to as F11.0 Gorge Hotel Specific Area Plan (the SAP), was ultimately approved under s 42 of the Land Use Planning and Approvals Act 1993 (LUPAA).

6             Thus, the development application that is the subject of this appeal was made pursuant to the provisions of a specific area plan that was drafted to suit the requirements of the present proposal. For example, the SAP provides for the circumstances where the building envelope under the SAP can be relied upon. Clause F11.6:

"Where F11.7.1 A1.1 is relied upon, the use must be for the purpose of Visitor Accommodation and ancillary uses directly associated with, and which are a subservient part of that use, which include general retail and hire, food services, community meeting and entertainment and hotel industry." (My emphasis.)

7             The appeal is only concerned with the Tribunal's decision in relation to the height of the proposal, and more particularly the finding that the height of the development fell to be assessed under the provisions of the SAP, which the Tribunal applied as it determined that the application was for visitor accommodation and "ancillary uses" directly associated with and which are "a subservient part" of that use.

8             As counsel for the appellant, Ms Scott, set out it in her written submissions, the issue that confronted the Tribunal was whether the proposed height would comply with cl F11.7.1 A1.1 of the Scheme. Again, cl F11.6 of the Scheme provided:

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"Where clause F11.7.1 A1.1 is relied upon, the use must be for the purpose of Visitor Accommodation and ancillary uses directly associated with, and which are a subservient part of that use, which include general retail and hire, food services, community meeting and entertainment and hotel industry." (My emphasis.)

9             By an amended notice of appeal dated 19 July 2023, the appellant seeks to impugn the decision of the Tribunal on what are, in essence, the following grounds, all of which relate to the Tribunal's finding that the ancillary uses did satisfy the test in cl F11.6 of the Scheme:

"Ground 1: the Tribunal erred in law in failing to find that, in addition to needing to serve the primary use, a subservient use must also serve in a subordinate or secondary capacity to the primary use.

Ground 2: the Tribunal erred in law in finding that 'directly associated with, and which are a subservient part' required only that ancillary uses be directly connected with and serve, contribute to or promote the primary use.

Ground 3: the Tribunal erred in law in finding that the use classification of the ancillary uses was distinct from the question of whether the uses were directly associated with and a subservient part of the primary use.

Ground 4: the Tribunal impermissibly narrowed the test and erred in law in taking into account irrelevant considerations as to commercial utility, star ratings and business needs of the Visitor Accommodation use in determining whether the ancillary uses were directly associated with and subservient to the primary use; and

Ground 5: the Tribunal erred in law:

(i) in finding that unspecified retail use could be approved as a use directly associated

with and subservient to the proposed visitor accommodation use; and

(ii) by treating the assessment of whether the proposed use fell within the operation of
cl F11.6 as a matter of enforcement. "

10           As can be seen, the gravamen of the first three grounds of appeal is that the Tribunal incorrectly construed the test for determining when a use may be classified as directly associated with and a subservient part of another use, for the purpose of cl F11.6 of the Scheme.

11           The appellant contends that the Tribunal found that to be a subservient part of the visitor accommodation use required that the ancillary use must serve the visitor accommodation use which in turn meant the ancillary uses needed to be useful or of service to, contribute to, or promote the visitor accommodation use.

12           In so doing, the appellant says, the Tribunal misconstrued the test in cl F11.6 in that it equated the term subservient with "to serve" and failed to consider a second requirement of subservience which requires that the service must be in a subordinate capacity.

13           The respondent retorts that "it is boldly asserted that there was a second requirement that subservient be 'subordinate'. Why this is so is not explained and there is no proper justification provided for imposing an additional element."

Ground 1

The Tribunal's construction of cl F11.6

14           The appellant contends that the Tribunal erred in law at [31] of its reasons for decision, in finding that to be "subservient" required that a use must serve the primary use and by failing to find that a subservient use also needed to serve in a subordinate or secondary capacity to the primary use.

15   At [31]–[34] of its reasons for decision, the Tribunal wrote:

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"The meaning of 'directly associated with' and 'a subservient part of'

31 In Kempster v Manning [2006] TASSC 31 at [24] Underwood CJ considered

what constituted an 'integral and subservient ancillary use' to a permitted use in a
planning scheme and said:

'It should be noted at the outset that in cls 3.4.1, 3.4.2 and 5.3.1 the words "integral" and "subservient" are joined by the conjunction "and". Bearing in mind that words must always be construed in the context in which they appear (per Isaacs and Rich JJ in Metropolitan Gas Co v Federated Gas Employees' Industrial Union [1925] HCA 5; (1925) 35 CLR 449 at 455) a use will only be integral and subservient to a permitted use if it serves the permitted use and makes it more complete. The Scheme uses the word "subservient" not "subordinate" to make it clear that the use must serve the permitted use. "Integral" indicates that the service must be such that it is a component of the permitted use.'

To be a 'subservient part' of a visitor accommodation use, an ancillary use must serve the visitor accommodation use. The verb 'serve' has a range of meanings, but the relevant meanings for the purpose of cl F11.6 are to be useful or of service to, to contribute to or to promote the visitor accommodation use.

32 In Kempster v Manning, His Honour considered the term 'integral and subservient' and determined that 'integral' means that the ancillary use must be a component of the permitted use. Clause F11.6 does not use the term 'integral', but rather 'associated with'. This indicates an ancillary use which does not need to be a component of the visitor accommodation use, but rather one which is connected with or joined to that use.

33 In K Butorac & R & R Pearshouse v Kingborough Council and Australia Travel & Culture Group Pty Ltd [2018] TASRMPAT 24 the Tribunal considered the meaning of 'directly associated with' in respect to cl 8.2.2 of the Kingborough Interim Planning Scheme 2015 which is identical to cl 8.2.2 of the Scheme, and provided:

A use or development that is directly associated with and a subservient part of another use on the same site must be categorised into the same use class as that other use.

The Tribunal applied Kempster v Manning in respect to the meaning of 'subservient part of' and applied the plain meaning of 'directly associated with', being a genuine and direct link between the relevant uses.

34 The phrase 'directly associated with, and which are a subservient part' will therefore mean an ancillary use which is connected with and serves, contributes to or promotes the visitor accommodation use. Unlike 'integral and subservient' it need not be a component of the substantive use that makes that use more complete." (My emphasis.)

16           Other passages in the Tribunal's reasons are relied upon in relation to other grounds of appeal as demonstrating errors of law in the Tribunal's determination to affirm the Council's grant of a permit for the proposal. I will come to them.

Construing the Scheme provision

17   Clause 4.1.1 of the Scheme provides:

"Terms in this planning scheme have their ordinary meaning unless they are defined in the Act or specifically defined in subclause 4.1.3 or in a code in Part E or a specific area plan in Part F."

18   Neither the term "directly associated with" nor the term "subservient" are defined.

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19          In The Wilderness Society (Tasmania) Inc v Wild Drake Pty Ltd [2021] TASFC 12 at [112]- [115] Porter J, with whom Blow CJ agreed, said:

"112 As a provision of a planning scheme, it should be interpreted in accordance with the ordinary rules of statutory interpretation: AAD Nominees Pty Ltd v Resource Management and Planning Appeal Tribunal [2011] TASFC 5 at [10]; Raff Angus Pty Ltd v Resource Management and Planning Appeal Tribunal [2018] TASSC 60, 28 Tas R 224 at [20].

113 That means starting with the ordinary and grammatical meaning of the text, with assistance to be gained from context; context includes surrounding provisions and the instrument as a whole, as well as purpose. The language actually employed is the surest guide: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41, 239 CLR 27 at [4] per French CJ, at [47] per Hayne, Heydon, Crennan and Kiefel JJ. Words that have an apparently clear, ordinary or grammatical meaning may be given a different legal meaning after the process of construction is complete: R v A2 [2019] HCA 35, 373 ALR 214 at [32].

114 The constructional task remains throughout to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation, and it is not repair: Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9, 253 CLR 531 at [65] per Gageler and Keane JJ (dissenting as to the outcome).

115        The use of dictionaries has been criticised, but the resource is frequently

used…"

Consideration of the appellant's argument

20           Counsel for the appellant points out that cl 8.2.1 of the Scheme requires that each proposed use or development must be categorised into one of the specified use classes. A use which is directly associated with, and a subservient part of, another use is to be classified under the same use class and a use which is not directly associated with and subservient to such a use must be individually classified; cls 8.2.2 and 8.2.5. This is the same test as appears in cl F11.6 of the Scheme.

21   In her written submissions counsel then says:

"49 It is contended that the task required of the planning authority under both cls.8.2.2 and F11.6 of the Scheme is to determine if the 'other' uses capable of separate use classification serve the visitor accommodation in a subordinate capacity. It is submitted that this requires determining if the facilities and services provided by those 'other' uses are provided primarily for the use of guests of the visitor accommodation use such that they are part of that primary use and not a separate use.

50 This will require determining if the facilities and services provided by the other uses are required, and utilised, by the guests and staff of the visitor accommodation.

51 Further, and whilst it is not contended that the test of subservience requires exclusive use (in this case by hotel guests or staff), in order to meet the test of serving in a subordinate capacity the extent of use by non-hotel guests (or staff at the hotel) is relevant to determining if those other uses are not truly subservient but merely complementary." (My emphasis.)

22           Counsel for the appellant does not offer any authority for this proposition, although she seeks, correctly I think, to distinguish the decision in Kempster v Manning (above), as concerned with a different planning test for what was an ancillary use.

23           There is no basis to be found in the principles of construction set out above for importing a test of "subordinate capacity". The ordinary and grammatical meaning of the words "subservient part" do not suggest such a test. And while, unlike the Tribunal, I am not at all sure that any statement of principle is to be derived from the decision in Kempster v Manning (above), it certainly appeared to Underwood

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CJ that, notwithstanding their similarities, there was a meaningful distinction, in a planning context, between the word "subordinate" and the word "subservient". I respectfully agree.

24           Nor does the word "part", used in conjunction with the word "subservient", suggest that there is a basis for importing a test involving, at the permit stage, some sort of quantitative analysis of the proposed ancillary uses, beyond perhaps floor area. The term "subservient part" is one which can be informed by the floor area shown in the development application.

25           Turning to the context and purpose of the relevant parts of the Scheme, there is once again, no warrant for transposing the words "subservient" and "subordinate". On the contrary, it is relevant to recall that following an earlier refusal of this proposal, the Council initiated an amendment to the Scheme to introduce the SAP which it designated Gorge Hotel Specific Area Plan. Clause F11.6 of the Scheme anticipates that the relevant visitor accommodation may include ancillary uses such as, for example "general retail, community meeting and entertainment":

"Where F11.7.1 A1.1 is relied upon, the use must be for the purpose of Visitor Accommodation and ancillary uses directly associated with, and which are a subservient part of that use, which include general retail and hire, food services, community meeting and entertainment and hotel industry." (My emphasis.)

26          In my view, the Tribunal correctly identified the test imported by cl F11.6 at [34] of its reasons, when it said, albeit in purported reliance on Kempster v Manning:

"34 The phrase 'directly associated with, and which are a subservient part' will therefore mean an ancillary use which is connected with and serves, contributes to or promotes the visitor accommodation use. Unlike 'integral and subservient' it need not be a component of the substantive use that makes that use more complete."

27 The question of whether that test was met by the evidence led in support of the second respondent's proposal is a question of fact which is beyond the scope of an appeal under s 136 of the TCATA.

28   Counsel for the appellant in her written submissions, suggested as follows:

"64 The error in the test applied by the Tribunal, in failing to correctly interpret the word subservient, and in particular, in failing to consider whether the ancillary uses served the visitor accommodation in a subordinate capacity, is demonstrated by the lack of consideration in the Tribunal's analysis and findings.

65 There were no specific retail uses applied for in the development application and the Tribunal acknowledged that this was the case. There was then no evidence before the Tribunal as to what would be sold in the retail uses and the extent to which the customers of the retail uses would be hotel guests or non-hotel guests. It is contended that this demonstrates the failure of the Tribunal to consider whether the retail use or uses would serve the visitor accommodation in a subordinate capacity.

66 There was no evidence before the Tribunal as to the requirement for function facilities for hotel guests or the extent to which patronage of the function rooms and centre would be by hotel guests or non-hotel guests. Again, this demonstrates the failure of the Tribunal to consider whether the function centre use would serve the visitor accommodation in a subordinate capacity."

29           The identification of the correct test required by the use of the words, "ancillary uses directly associated with, and which are a subservient part of that use", in cl F11.6 of the Scheme does not, as I have said, necessitate that sort of evidence. And, if the Tribunal erred in applying the test that it correctly identified, by relying on the floor areas disclosed in the development application and the evidence on the appeal, then any such error would be one of fact alone. An incorrect application of the correct test to the facts is not an error of law. The Tribunal's statement at [67] of its reasons is a finding of fact. It there said:

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"67 Each of the ancillary uses will be connected with and serve, contribute to or promote the visitor accommodation use. Accordingly, they will all be directly associated with, and a subservient part of the use of visitor accommodation."

30           As counsel for the second respondent, Mr Spence SC, notes in his written submissions, this is consistent with a long line of authority acknowledging that questions as to the proper classification of use and whether or not one use is ancillary to another use is a question of fact, not a question of law; see for example: Kempster v Manning (2006) 148 LGERA 1 at [21]; Jackson and Another v Building Appeal Board and Others (2010) 20 Tas R 1 at [46], [48] and [53]; Baulkam Hills Shire Council v O'Donnell (1990) 69 LGRA 404 at 409-410; Macquarie International Health Clinic Pty Ltd v University of Sydney (1998) 98 LGERA 218 at 221; Lizzio v Ryde Municipal Council (1983) 155 CLR 211 at 216-217 and Gamble v Kingborough Council [2020] TASSC 12 at [66].

31           It is of note, that the appellant's case before the Tribunal did not involve argument as to the correct nature of the test posed by cl F11.6 of the Scheme but rather the contention that there was not sufficient evidence to satisfy the test. The appellant's counsel before the Tribunal stated at paragraph [5] of her written closing submissions that:

"While a use (ie the manner of utilising the land) that falls within the scope of what would otherwise be regarded as and classified within the 'general retail and hire, food services, community meeting and entertainment, and hotel industry' use classes, may be capable of being regarded as directly associated with and which are a subservient part of the proposed visitor accommodation use, the application does not provide sufficient details to enable that classification."

32   As Mr Spence noted in his written submissions before me:

"90  In closing submissions [before the Tribunal], the Appellant also:

(a) conceded that a use such as the proposed function centre need not be 'integral

or necessary' in connection with the Visitor Accommodation use in order to attract the
operation of cl F11.6.2 and F.11.7;

(b) submitted that the proper test for when a use will be directly associated with,

and a subservient part of, another use, was as set out in paras [63] and [66] of Gamble
v Kingborough Council. Those paragraphs essentially say that:

(i)  the words 'directly associated with' require a genuine and direct link between

the relevant uses; 

(ii)  'subservient' requires that the use must 'serve' the other use on the same site;

and 

(iii) whether or not a use is directly associated with, and a subservient part of,

another use, is a question of fact requiring consideration of a wide variety of factual
matters regarding the operation of and interconnection between both uses;

(c) expressly stated that 'the determination of whether a proposed use is directly associated with and subordinate to the proposed visitor accommodation use is a question of fact and degree…' and that 'A restaurant, function centre and even retail may be directly associated with and subservient to a hotel or visitor accommodation use. It is a question of fact and degree in each case as to enable a judgment of whether the proposed use can take on the character of visitor accommodation'. (my emphasis)

(d) conceded that the restaurant would not need to be exclusively available to hotel guests, but says that there must be 'some evidence to suggest that the purpose of the restaurant was to serve the accommodation and not that its purpose was predominantly to attract guests from elsewhere'.

(e) conceded that, with respect to the function centre, it is not the case that all of the guests attending each function would need to be accommodated within the hotel,

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but says that 'a significant portion would need to be accommodated so as to establish a
genuine link between the accommodation and function centre uses'. "

33   In my view there is no substance in ground 1 of the amended notice of appeal.

Ground 2

Consideration of the appellant's argument

34           Ground 2 of the amended notice of appeal asserts that the Tribunal erred in law at [34] of its reasons, in finding that the phrase "directly associated with, and which are a subservient part…" required only that the uses other than the visitor accommodation component (ie, the retail, restaurant, conference facility, and bars that were described by the Tribunal as the "ancillary uses") be directly connected with and serve, contribute to, or promote the visitor accommodation use, thereby impermissibly narrowing and confining the test.

35   This ground is intertwined with ground 1.

36           It is submitted that the Tribunal erred in adopting this interpretation by impermissibly narrowing the test for classification of uses by failing to have regard to whether the ancillary uses served the visitor accommodation in a subordinate capacity such that they were each part of that use as required by cl 8.2 of the Scheme.

37          As already noted, in determining the test the Tribunal was required to apply cl F11.6 of the Scheme, headed Use Standards. I set it out again:

"Where clause F11.7.1 A1.1 is relied upon, the use must be for the purpose of Visitor Accommodation and ancillary uses directly associated with, and which are a subservient part of that use, which include general retail and hire, food services, community meeting and entertainment and hotel industry. "

38          The general provision in respect of characterising "use" and "development" in the Scheme is cl 8.2.2, which provides as follows:

"A use or development that is directly associated with and a subservient part of another
use on the same site must be categorised into the same use class as that other use. "

39           However, as pointed out by counsel for the second respondent in his written submissions, it may be observed that there are no fundamental differences between cl F11.6 and cl 8.2.2. They are complementary.

40           Nonetheless, it is submitted by counsel for the appellant that the Tribunal erred by failing to consider whether the information and evidence before it about each of the ancillary uses justified a conclusion that they were each part of the visitor accommodation and not independent uses.

41          As I have already found, the Tribunal correctly identified and applied the test posed by cl F11.6 of the Scheme. Clause 8.2.2 does not, in my view, pose a fundamentally different or additional test, particularly bearing in mind that cl F11.6 is an addition to the Scheme by way of the implementation of a special area plan.

42           And, notwithstanding, as will be seen, that the question of the classification of the ancillary uses was not in issue before the Tribunal, a fair reading of its reasons discloses that it gave consideration to all of the evidence as to the purpose and classification of the uses proposed and specifically found that the ancillary uses were part of the visitor accommodation use (see [67] [74] and [105]). It must follow from that consideration and that finding that the Tribunal was of the view that those uses were not to be characterised as having an independent character.

43   In my view there is no substance in ground 2 of the amended notice of appeal.

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Ground 3

Consideration of the appellant's argument.

44   This ground is intertwined with grounds 1 and 2

45           The appellant contends that the Tribunal erred in law at [47] of its reasons, in suggesting that the classification of the uses other than the visitor accommodation component (ie, the retail, restaurant, conference facility, and bars that were described by the Tribunal as the "ancillary" uses) was distinct from the question of whether the uses were directly associated with and a subservient part of the visitor accommodation use.

46   However, what the Tribunal said at [47] was:

"47 Mr Gartrell's expertise is in planning. As the appellant points out, Mr Gartrell is qualified to express opinion in respect to classification of use. However, the classification of the ancillary uses was not in issue. The issues arising under cl F11.6 extended beyond their classification to whether they were associated with and a subservient part of the visitor accommodation use. Mr Gartrell's evidence referred to other examples of visitor accommodation with ancillary uses. He expressed some matters of opinion that might be said to extend beyond the discipline of planning into the area of tourism and hospitality operations. Those matters were embedded in his planning evidence and flow from it, such that the assessment of Mr Gartrell's evidence is best undertaken by way of an assessment of weight rather than admissibility. As such those parts of Mr Gartrell's evidence which were taken de bene esse will be admitted. However, where he expresses opinion in respect to matters of tourism or hospitality operation that conflict with properly founded evidence of Mr Cocker and Mr Powell within their areas of expertise their evidence has been preferred. "(My emphasis.)

47           The appellant's argument is that the Tribunal erred in distinguishing the classification of the ancillary uses as separate from the question of there being a direct association with the primary use being a subservient part of that use.

48           This, the appellant submits, is an error that led the Tribunal "to focus its analysis on the business case of the applicant in place of a planning assessment that focused upon the impacts of the different uses for their capacity to be classified as directly associated with and a subservient part of the visitor accommodation use."

49           I cannot detect any error of law in the Tribunal's approach. It did not find that the question of the classification of the ancillary uses was "distinct" from the question of their direct association with the primary use and their being a subservient part of that use. The Tribunal at [47] was merely observing that while the classification of the ancillary uses was not in issue, the applicant's argument "extended beyond" the question of classification and raised the more specific question of whether they were associated with and a subservient part of the visitor accommodation use.

50           Thus, the classification of the ancillary uses was not in issue before the Tribunal. But even if it were, or if it was an indispensable requirement of the Tribunal's reasoning, then on a fair reading of the Tribunal's reasons, in their entirety, any consideration of the applicant's "business case" was properly confined to its relevance to the nature and purpose of the ancillary uses and did not, as will be seen, amount to an impermissible consideration of "commercial imperatives".

51   In my view there is no substance in ground 3 of the amended notice of appeal.

Ground 4

Consideration of the appellant's argument

52           The appellant contends the Tribunal erred in law at [43]-[45] of its reasons in that it took into account irrelevant considerations as to the commercial utility, star ratings and business needs of the visitor accommodation in the determination of the classification of a use as being directly associated with and subservient to the primary use.

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53   At those paragraphs the Tribunal said:

"43 Mr Cocker holds tertiary qualifications in law and finance and is a member of professional associations for financial services and company directors. He described 25 years of experience in property investment, development, hotels, tourism and hospitality. He is the managing director of the JAC Group, of which the second respondent is a wholly owned subsidiary. Mr Cocker's evidence was largely in respect to factual matters concerning the proposal. Insofar as he expressed opinion, it related to the commercial relevance of ancillary uses to the primary use of visitor accommodation in an economic context, and the relevance of ancillary uses to the competitiveness of 4.5 to 5 star hotels.

44 The Tribunal is satisfied that Mr Cocker's experience in the development and operation of tourist accommodation has provided him with the expertise to express opinions in respect to the commercial utility and prevalence of ancillary uses in respect to the operation of visitor accommodation.

45 Mr Powell is the managing director and owner of a tourism and hospitality services company. He has experience and qualifications in the hotel, hospitality and tourism industry. His company is the second largest specialist hotel consulting firm in Australia and New Zealand. His opinion evidence was limited to requirements of the Australian hotel star rating systems, in particular the effect of ancillary facilities and services on star ratings, and that ancillary facilities are typically not exclusive to hotel guests but are also used by visitors and local residents. "

54           Counsel for the appellant submits, uncontentiously, that Mr Cocker's evidence was evidence of the commercial utility and prevalence of ancillary uses in relation to the operation of visitor accommodation and evidence as to the facilities to be included so as to gain classification as a 4.5 to 5 star hotel. Counsel submits that "neither matter is material to the classification or characterisation of use."

55           Counsel submits that reliance by the Tribunal upon the evidence of Mr Cocker and Mr Powell, and on similar evidence given by Mr Lyne, a planning expert, called on behalf of the second respondent, the Tribunal took into account irrelevant matters.

56           The first question which arises here is whether the evidence was considered in an impermissible way. To consider commercial imperative as reason for exercising a discretion in a particular way, or as a reason for arriving at a particular decision, may well be.

57          However, counsel for the second respondent submits that:

"This ground again mischaracterises the relevance that was given to the evidence about commercial utility, star ratings and business needs. It was not a matter of the Second Respondent arguing that the ancillary uses were required to make a certain profit, or to make the Proposal commercially viable.

Rather, the Second Respondent's case was that there are different classes of hotel. This particular Proposal relates to a $50 million dollar hotel at the top end of that spectrum, and in order to secure a high level hotel manager and a 4.5 to 5 star certification, certain features are required. The relevance of that evidence was that the ancillary uses were required to achieve the purpose of the Proposal (i.e. to develop a 4.5 to 5 star hotel). "

58           In my view that submission is unassailable. Self-evidently what might be "directly associated with and a subservient part" of a 5-star hotel will be different from what might be "directly associated with, and a subservient part" of a backpacker hotel. A consideration of evidence as to the nature and quality of the relevant visitor accommodation cannot be irrelevant to the issues arising in a planning appeal such as the present.

59   In my view there is no substance in ground 4 of the amended notice of appeal.

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Ground 5

Consideration of the appellant's argument

60           The appellant contends that the Tribunal erred in law by finding that an unspecified retail use could be approved as a use directly associated with and subservient to the proposed visitor accommodation use and by treating the assessment of whether the proposed use fell within the operation of clause F11.6 as a matter for enforcement.

61   At [64]-[66] of its reasons the Tribunal said:

"64 The principle concern raised by the appellant related to the retail use and function rooms, and to a lesser extent the restaurant. The second respondent's evidence was that the ancillary uses would not be established without the visitor accommodation. The evidence of Mr Cocker and Powell established the importance of such uses to the operation of a 4.5 to 5 star hotel, and to the achievement of such a rating. The uses are integrated into the building. The retail use will have no street front access. The function centre will have access from the carpark, but its principal access will be internal to the hotel. The function centre will be reliant on the hotel kitchen and amenities. The ancillary uses will utilise the hotel's parking. In terms of physical scale the ancillary uses are a small component of the floor area of the proposal. The function rooms are interconnected with the kitchen and bar area. The retail space is approximately half the size of a permitted retail space in the mixed use zone.

65 The appellant points out that the type of retail operation has not been identified. At this stage of the proposal it is not surprising that a particular retail tenant has not been identified. Given the prominent site of the retail space it might be assumed that the operator of the hotel would look to a tenant which would be in keeping with a 4.5 to 5 star hotel. If it were to be operated for a retail purpose clearly unrelated to the visitor accommodation then it would be in breach of the Scheme as not being directly associated with and subservient to the visitor accommodation use, and so subject to enforcement proceedings.

66 The gym, wellness centre and day spa will be limited to hotel guests. Although the restaurant and bars might attract patronage other than guests, they are clearly connected with the visitor accommodation and will serve that use. The function centre will no doubt also attracted patronage other than guests of the hotel. However, it is integrated with the physical structure of the hotel, will utilise the kitchen, amenities, accesses and fire escapes of the hotel. It will attract patronage to the visitor accommodation. Although the number of potential patrons is larger than the number of guests that can be accommodated in the visitor accommodation it is not so large that it will lose the connection to the visitor accommodation or loses the aspect of serving the accommodation. It is clearly a hotel with a function centre included, rather than a function centre with accommodation provided." (My emphasis.)

62   Counsel for the appellant contends in her written submissions as follows:

"116 At [65] the Tribunal found that the retail use could be approved notwithstanding that the type of retail operation had not been identified because if the retail use was operated for a retail purpose clearly unrelated to the visitor accommodation it would be in breach of the Scheme.

117 Implicit in such a finding is an assumption that the permit approves only a retail use that is directly associated with and a subservient part of the accommodation use. Any different type of retail activity would require a separate permit and be in breach of the Scheme. The permit in question however did not limit the retail use to one which was subservient to the visitor accommodation. Nor was there any commitment in the development application to such a limitation.

118 A permit grants approval to the proposed use and development and, on the terms of the permit which requires that the use and development is carried out in accordance with the endorsed plans and documents, requires adherence to the content

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of these documents; Australian Postal Corporation v Shoobridge. Followed in Gamble v Kingborough Council. See also Allandale Blue Metal Pty Ltd v Roads and Maritime Services.

119 It is not permissible to resort to extraneous documents for the purpose of interpreting the permit. The permit is to be construed on its terms having regard to its enduring nature. It is not personal to the applicant but is instead a public document operating in rem for the benefit of third parties such as subsequent owners or occupiers, and in some respects is equivalent to a document of title: House of Peace Pty Ltd v Bankstown City Council; Winn v Director-General of National Parks and Wildlife; Ryde Municipal Council v Royal Ryde Homes. Adopted in Sutherland Shire Council v Benedict Industries Pty Ltd (No 8).

120 The approval of a development application does not have the effect of incorporating everything stated in the application such as statements of intention; Ryde Municipal Council v Royal Ryde Homes. It is contended that this principle is readily extended to the reasons for which the approval was granted and the evidence led in support of an application such as that at a hearing before the Tribunal.

121 There is nothing in either the terms of the permit or the application which limit the retail use to a use which is directly associated with, and a subservient part of, the visitor accommodation use which would permit enforcement action seeking to restrain the retail use accordingly.

121.1 The application describes the proposed uses. Referable to the retail space the most information that is provided is by way of the plans which describe the space as Retail/Bottle shop. The evidence at hearing was that the specific retail use had not been determined.

121.2 The permit records that the approved use is visitor accommodation including associated retail amongst the other uses. It identifies that the zone is Urban Mixed Use and Use Class of Visitor Accommodation. Condition 1 sets out the documents comprising the application which it endorses, this includes the plans, planning report prepared by Commercial Project Delivery and Transport Impact Assessment prepared by GHD.

122 Neither is sufficient to ensure that retail use resulting on the site is limited to a use that is directly associated with and a subordinate part of the accommodation use. The permit has the effect of endorsing a generic retail use that is insufficient to ensure that any subsequent building will be within cl F11.6 of the Scheme.

123 Further the Tribunal's decision in this respect failed to consider that it was the whole building that was approved by the permit. The purpose of the SAP is to enable an increased building envelope for a building that only contains uses that meet the requirements of cl F11.6. This requires that the planning authority (or Tribunal on appeal), be satisfied that proposed uses meet clause F11.6 before approval for a building of the sought proposed can be granted."

63           I have some difficulty in grasping these submissions. They appear to me to presuppose that any enforcement would be by way of a prosecution for a breach of the planning permit issued to the appellant. The argument seems to proceed on the basis that enforcement would not be possible because the permit did not limit the retail use to one which was subservient to the visitor accommodation. However, the appellant's own submissions cite the Tribunal's comment that "a retail purpose clearly unrelated to the visitor accommodation would be in breach of the Scheme." (My emphasis.)

64           It seems to me that while, as submitted on behalf of the appellant, "the permit has the effect of endorsing a generic retail use that is insufficient to ensure that any subsequent building will be within cl F11.6 of the Scheme ", the Scheme itself provides that insurance.

65 Section 63 of LUPAA provides as follows:
"63 Obstruction of sealed schemes

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(1) . . . . . . . .

(2) A person must not use land in a way, or undertake development or do any other

act, that –

(a) is contrary to a State Policy or a planning scheme; or

(b) impedes or obstructs the execution of any such scheme; or

(c) constitutes a breach of a condition or restriction of a permit imposed by a planning authority pursuant to any such scheme or a determination of the Appeal Tribunal…" (My emphasis.)

66 If the second respondent were to establish, say a vacuum cleaner shop or a power tools shop in the retail space shown in the approved plans, then it may not be in breach of its permit, but it would surely be in breach of the Scheme. That must be so because a retail use would not be permitted within the area of the SAP unless it found its lawful authority in cl F11.6 and F11.7 and the shops I have instanced would clearly not be uses directly associated with and subservient to the proposed visitor accommodation use. Assuming therefore that the impugned use had not been separately assessed and permitted under the Scheme, it would be contrary to it and thus offend s 63(2)(a) of LUPAA. No resort to extraneous documents for the purpose of interpreting the permit would be necessary. The source of the offence would be the Scheme, not the permit.

67            In my view there is no substance in ground 5 of the amended notice of appeal.

Disposition

68            Each of the appellant's grounds of appeal having failed, the appeal is dismissed.