Codling v Manly Council

[2011] NSWLEC 57

Land and Environment Court

New South Wales

Medium Neutral Citation:	Codling v Manly Council [2011] NSWLEC 57
Hearing dates:	4 March 2011
Decision date:	06 April 2011
Before:	Pain J
Decision:	Ground 2 of this appeal is upheld.
Catchwords:	Appeal - s 56A appeal from decision of commissioner - questions of law - whether commissioner correctly characterised purpose of use - construction of environmental planning instrument
Legislation Cited:	Environmental Planning and Assessment Act 1979 s 80(4) Land and Environment Court Act 1979 s 56A Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 cl 18 Standard Instrument (Local Environmental Plans) Order 2006
Cases Cited:	Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 CB Investments Pty Ltd v Colo Shire Council [1980] 41 LGRA 270 Codling v Manly Council [2010] NSWLEC 1299 Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; (2007) 151 LGERA 400 Council of the City of Sydney v Pink Star Entertainment Pty Ltd [2008] NSWLEC 176; (2008) 160 LGERA 251 Grace v Thomas Street Cafe Pty Ltd [2007] NSWCA 359; (2007) 159 LGERA 57 Matic v Mid-Western Regional Council [2008] NSWLEC 113 Newcastle City Council v Royal Newcastle Hospital (1957) 96 CLR 493 Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529 Stonnington City Council v Southern Property Corp Pty Ltd [2006] VSC 435; (2006) 154 LGERA 1 Warehouse Group (Australia) Pty Ltd v Woolworths Ltd [2005] NSWCA 269; (2005) 141 LGERA 376
Texts Cited:	Macquarie Dictionary, 4th ed (2005) Macquarie Library
Category:	Principal judgment
Parties:	Codling, John (Appellant) Manly Council (Respondent)
Representation:	Mr A Galasso SC with Mr G Newport (Appellant) Ms S Duggan SC (Respondent) Wilshire Webb Staunton Beattie (Appellant)
File Number(s):	11050 of 2011
Decision under appeal	Jurisdiction: 9107 Citation: Codling v Manly Council [2010] NSWLEC 1299 Date of Decision: 2010-12-01 00:00:00 Before: Pearson C File Number(s): 10420 of 2010

Judgment

1. In Codling v Manly Council [2010] NSWLEC 1299 the Appellant's development application (DA) for the use of a function and conference centre in level 1 of the Manly Bathers Pavilion was refused. This is an appeal under s 56A of the Land and Environment Court Act 1979 (the Court Act) which identifies three grounds of appeal based on alleged errors of law and errors of mixed fact and law made by the Commissioner.

Grounds of appeal

1. The grounds of appeal are as follows:

(1)   The Commissioner erred in determining that the proposed use was prohibited.

(2)   The Commissioner erred in finding that the proposed use, or alternatively part of the proposed use, was for a restaurant.

(3)   In the alternative to grounds 1 and 2, having determined that the proposed use comprised two uses for the purposes of characterisation, the Commissioner erred:

(a)   In then treating the two uses as a single use for the purposes of determining the appeal; and

(b)   In dismissing the appeal with respect to the permissible use.

Commissioner's judgment

1. A summary and extracts from the judgment follow. The relevant planning instruments are set out at [17] - [23]. Paragraphs [17], [18], [22] and [23] relevantly state:

17 The small area of the subject site above the mean high water mark (MHWM), which is not the subject of the development application, is zoned 6- Open Space under the Manly Local Environmental Plan 1988. The development application relates to that part of the site below the MHWM which is not within the Manly local government area, and which is zoned W2 - Environmental Protection under Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (the SREP).

18 The SREP establishes three categories of development: "land-based development", which is development carried out wholly above the mean high water mark, and development for a number of specified purposes; "water-based development", and "land/water interface development". The latter two terms are defined in the Dictionary to the SREP as follows:

land/water interface development means development for any of the following purposes:

(a) boat repair facilities,

(b) boat launching ramps,

(c) commercial marinas,

(d) water-based restaurants and entertainment facilities,

(e) water recreational facilities,

(f) when carried out wholly or partly in the waterway:

(i) dwellings of any type (including serviced apartments),

(ii) commercial premises,

(iii) tourist facilities,

(iv) shops and retailing,

(v) restaurants,

(vi) recreational or club facilities (whether used for activities based on land or on water),

(vii) car-parking,

and includes land-based development and water-based development when carried out as part of development for a purpose referred to above.

...

22 Specific development controls are provided in cl18:

18 Development control in the waterways

(1) Except as otherwise provided by this plan, in relation to land within a zone to which a column of the Table to this clause applies:

(a) the development (if any) that may be carried out without development consent is indicated by the letter "P", and

(b) the development (if any) that may be carried out only with development consent is indicated by the letter "Y", and

(c) the development (if any) that is prohibited is indicated by the letter "N".

(2) Despite subclause (1), development not referred to in the Table to this clause may be carried out with development consent, but only if the consent authority is satisfied that the development:

(a) is not inconsistent with the aims of this plan or the objectives of the zone in which it is proposed to be carried out, and

(b) is not inconsistent with any other environmental planning instrument that applies to the land, and

(c) will not otherwise have any adverse impacts.

23 The Table accompanying cl 18 specifies that in the W2 zone, "water-based restaurants and entertainment facilities" are prohibited. The Dictionary to the SREP defines "water-based restaurants and entertainment facilities" as follows:

water-based restaurant and entertainment facility means a vessel or structure that floats on, or is fixed in, the waterway, that is used as a club or restaurant or for entertainment (on a commercial basis) and that has a direct structural connection between the foreshore and the waterway.

1. The Appellant's submissions are summarised at [27] - [32] to the effect that the proposed use is not a club or restaurant or for entertainment and therefore not prohibited as a "water-based restaurant and entertainment facility". The proposal has two separate uses, a convention centre and function centre undertaken for the purpose of commercial premises. The Appellant accepts his proposal meets the other parts of the definition of water-based restaurant being a structure in a waterway with a direct structural connection between the foreshore and the waterway. Commercial premises are not defined in the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 ( SREP).

1. The Council submitted, as summarised at [33] - [34], that the purpose of function centre and provision of conferences are two separate independent uses of the land. It accepts the use for a conference facility is a permissible innominate use. The function centre use is a restaurant as the service of food is an essential component.

1. The relevant principles in relation to characterisation are identified at [35] - [36] referring to Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529 and Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; (2007) 151 LGERA 400 at 408.

1. In [39] of the judgment the Commissioner held:

In my view, when considered at a high level of generality, the purpose of the proposed uses of level 1 could be regarded as being to provide a venue for the holding of functions, including weddings, and conferences, at which both food and alcohol can be served. That purpose could be usefully defined in terms of being a "function centre" as defined in the Standard Instrument (Local Environmental Plans) Order 2006, which means "a building or place used for the holding of events, functions, conferences and the like..." However, that definition does not apply in terms to the SREP, and the SREP does not make specific provision for a "function centre" either in the Table which forms part of cl18 or in the definitions in the Dictionary to the SREP, or in other provisions such as the definition of "land/water interface development". In considering how to characterise the purpose as understood from the amended development application, the issue is whether the proposed uses as a conference facility and a function centre are for a single purpose, namely as "commercial premises" as contended by the applicant, or for two separate purposes as contended by the Council.

This paragraph is not criticised by the Appellant. The issue in the last sentence is correctly identified in his view.

1. Paragraph [40] refers to the principles applicable to the construction of environmental planning instruments in Matic v Mid Western Regional Council [2008] NSWLEC 113 at [7] - [9]. Paragraph [41] considers the application of cl 18 in the context of the SREP and states that it is common ground that the requirements of cl 18(2)(a), (b) and (c) would be met provided conditions were imposed to address environmental impacts. It is also agreed that the Council is the consent authority for this development. These paragraphs are not contentious.

1. At [42] - [45] the Commissioner held:

42 The definition of "land/water interface development" includes "water-based restaurant and entertainment facility", and both "restaurants" and "commercial premises" when carried out wholly or partly in the waterway. The term "restaurant" is not defined in the SREP, and I adopt the ordinary meaning as submitted by the applicant, namely that it is a place where meals are served to customers. Having regard to the proposed hours of operation, which include operating the kitchen until 10pm; the type of functions proposed; the size of the kitchen and food and drink service areas; and size of the area proposed for customers seated at tables, I am satisfied that when used for functions level 1 can be characterised as being used for the purposes of a "restaurant", understood in its ordinary meaning. A "water-based restaurant and entertainment facility" is a form of "land/water interface development" defined both by the range of uses carried on in a structure, and by the location and connection to land and the waterway of the structure within which it is located. I agree with the Council that the proposed use of level 1 for functions falls within this description, both in terms of the structure and in terms of the proposed use for the purpose of a restaurant. That means that if the definition of "commercial premises" in the Model Provisions can be used to interpret paragraph (f)(ii) of the definition of "land/water interface development", it would not in terms apply to this proposed development, since it is for a purpose elsewhere defined. I agree with the Council that the dictionary definition of "commercial" meaning "engaged in, bearing on commerce" ( Australian Concise Oxford Dictionary 7 th ed) is too broad to be of assistance in the context where the proposed use as a function centre is for one of the specific purposes in paragraphs (a)-(e) of "land/water interface development".

43 In considering the proposed use of level 1 as a conference facility, I agree with the Council that the service of food and beverages in conjunction with that use would be ancillary to the provision of the conference facility, and that the conference facility could be characterised as being a form of commercial premises. In reaching that conclusion, the decision in Optima Developments Pty Ltd v Lake Macquarie City Council [2003] NSWLEC 224 relied upon by the applicant is of limited assistance, being concerned a different form of proposed development and different planning controls which included the Model Provisions definitions. If characterised as for the purpose of "commercial premises", the use of level 1 as a conference facility would fall within paragraph (f)(ii) of "land/water interface development"; it is not included in the Table to cl18, and would, by virtue of cl18(2) of the SREP, be permissible with consent if it meets the requirements of cl18(2).

44 The use of level 1 for the purpose of a function centre, being a "water-based restaurant and entertainment facility", is prohibited by cl18(1); the use for the purpose of a conference facility is permissible with consent by virtue of cl18(2) of the SREP. The issue is whether the function and conference uses should be regarded as being two independent uses of the site, or whether one is subordinate, or ancillary, to the other: Solicitor General for New South Wales v Foodbarn Pty Ltd (1972) 32 LGRA 130. As held in Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404, it is a question of fact and degree in all the circumstances of the case.

45 The material before me supports the conclusion that neither of the function or conference uses is subordinate or ancillary to the other. The Plan of Management address both proposed uses, for example in part 8(iii) which specifies that during a conference the windows on the western faade would be closed, whereas during a function all the windows to the south and west facades would be closed. The Plan of Management specifies a maximum number of 300 patrons on the premises "in full conference mode"; for an "average wedding", the number would be smaller. The proposed hours of operation do not distinguish between the two proposed uses. If the space available for clients is divided as indicated on the plans, it is possible that both uses could be carried out at the same time, and the configuration of the kitchen, bar, and service corridor area would enable food and drinks to be served to two separate functions. As neither proposed use is ancillary to the other, the prohibition of a "water-based restaurant and entertainment facility" in the W2 zone means that development consent cannot be granted.

1. An agreed bundle of documents containing the DA and Statement of Environmental Effects and the plans before the Commissioner was tendered by the Appellant.

Appellant's submissions

1. Grounds 1 and 2 are related. The Commissioner fell into legal error concerning characterisation at [42] - [44] where she considered the proposed use of level 1 was for two uses, conference facility and separately a function centre (ground 1). The second error was in finding that the function centre use was a restaurant and therefore prohibited (ground 2).

1. The SREP applies and contains no definition of "commercial premises", "restaurant" or "function centre". Commercial premises are referred to in the definition of "land/water interface development". It is accepted for this appeal that only if the proposed use falls within the description "water-based restaurant and entertainment facility" is it prohibited.

Ground 1

1. Characterisation of the purpose of development must be done in a commonsense and practical way per Chamwell at [45]. A use must be for a purpose per Chamwell at [27]. The nature of a use must be distinguished from the purpose of the use per Chamwell at [34]. The purpose is the end to which the land is put, here the different uses have the same purpose.

1. The identification of uses, as the Commissioner found, is not the appropriate approach to characterisation, rather it is the purpose of the use that should be considered under the SREP. The purpose did not require specific characterisation under cl 18 of the SREP in light of cl 18(2) in that innominate uses are permissible where these are not otherwise identified in the table referred to in cl 18(1). The single purpose was for a function centre or commercial use, either of which is an innominate use under cl 18(2). If not a restaurant, the use would be permissible. The Commissioner erred in finding that the proposed development should be characterised as two separate uses, a function centre use and a conference use.

1. The Commissioner's statement at [39] last sentence that:

In considering how to characterise the purpose as understood from the amended development application, the issue is whether the proposed uses as a conference facility and a function centre are for a single purpose, namely as "commercial premises" as contended by the Appellant, or for two separate purposes as contended by the Council.

is correct. The purpose of the two uses was a commercial social alignment purpose so that for a conference purpose all persons attending the conference have a similarity by virtue of the nature of the conference. The provision of food is secondary, or ancillary to the purpose of the gathering (as found by the Commissioner at [43]). Similarly, in relation to a function centre, persons also attend for a commonality of social element. Just because more food may be served at a function than at a conference does not alter the purpose of that event. That purpose aligns with the meaning of function centre as defined in the Standard Instrument (Local Environmental Plans) Order 2006 (standard instrument) and does not align with restaurant, also there defined. The standard instrument then defined function centre as:

... a building or place used for the holding of events, functions, conferences and the like, and includes convention centres, exhibition centres and reception centres, but does not include an entertainment facility.

and restaurant as:

... a building or place the principal purpose of which is the provision of food or beverages to people for consumption on the premises, whether or not takeaway meals and beverages or entertainment are also provided.

1. It is accepted that the SREP did not apply the standard instrument terms, but providing a meal does not make a use of land that of a restaurant. The Commissioner erroneously differentiated between uses for the ultimate purpose when the latter is the key criteria for characterisation purposes, see for example Stonnington City Council v Southern Property Corp Pty Ltd [2006] VSC 435; (2006) 154 LGERA 1 at [4] - [5].

Ground 2

1. The Commissioner's finding at [42] that the function centre was a restaurant and therefore prohibited as a "water-based restaurant and entertainment facility" under the table in cl 18(1) was an error of mixed fact and law as it was an error in the characterisation of that use. It was common ground between the parties that the first and last element of the definition of water-based restaurant (location of structure, and structural connection) was satisfied. Logic suggests such a finding was wrong as a practical, commonsense approach to a function centre use does not suggest a restaurant use. Diners book and attend a restaurant for the purpose of consuming food. In contrast, the purpose of attending a function centre is not the food but the common element between the attendees (for example, a wedding). The consumption of food is ancillary to the primary purpose of attending a function.

1. Secondly, dictionary definitions can be applied. The Macquarie Dictionary , 4th ed (2005) Macquarie Library defines restaurant as:

an establishment where meals, especially main meals, are served to customers.

and function room as:

a room in a hotel, club, restaurant, etc, which is set aside for the holding of special functions as weddings, private dinners, etc.

1. The mere provision of meals at a function does not establish the existence of a restaurant. Traditionally, restaurants operated as a species within a more general genus of "refreshment room". Thus, uses such as restaurant, caf, tea room, eating house or the like were traditionally species of the overall genus of refreshment room: see also Council of the City of Sydney v Pink Star Entertainment Pty Ltd [2008] NSWLEC 176; (2008) 160 LGERA 251 at [87].

1. Thirdly, the purpose of a function centre and restaurant is different in town planning terms. In Grace v Thomas Street Caf Pty Ltd [ 2007] NSWCA 359 ; (2007) 159 LGERA 57 the Court of Appeal summarised the principles on the question of characterisation of use which demonstrate that the consumption of food and social gathering cannot be regarded as aligning two independent uses, per Beazley JA at [87] - [91] comparing a milk bar and a caf as having separate incidents notwithstanding there is similarity of use. McClellan CJ in CL held similarly at [145] - [146].

Ground 3

1. The Commissioner found that the conference use was permissible with consent and the function centre use was prohibited. As the Commissioner found these were separate, independent uses so that neither was subordinate or ancillary to the other, she dismissed the appeal. The error of law giving rise to ground 3 is the last sentence in [45] as the Commissioner failed to consider that she had power under s 80(4) of the Environmental Planning and Assessment Act 1979 (the EPA Act) to grant approval for part of the development consent being sought. It was erroneous for the Commissioner to effectively reaggregate the uses so that the use found to be permissible fell as well as the use found to be prohibited.

1. In reply, the Council's submissions and the Commissioner failed to differentiate between use and purpose. The use of land must be for a purpose per Chamwell at [27]. Here there are two uses aligned for a single purpose. The purpose of function centre is the use of the built form. Contrary to the Council's submissions, CB Investments Pty Ltd v Colo Shire Council [1980] 41 LGRA 270 recognised that intention is relevant at 276. The intention of the owners of the land, here to run a function centre is relevant and differs from a restaurant use. The built form of the kitchen (large) is because a function such as a wedding requires service of a large number of people with a meal, the built form is nevertheless serving the purpose of a function centre. The appeal should be upheld.

Council's submissions

1. The Commissioner was correct in the findings of fact made and the application of characterisation principles to these. Referring to how function centres are considered under other environmental planning instruments (EPIs) is not relevant because the issues must be considered in the context of the SREP. Characterisation raises issues of fact and degree. There is no objection to the principles as stated in [35] - [36] of the judgment but with their application. It is necessary to identify a use/purpose that is not too broad that can allow uses that should be excluded and not too narrow so that processes or methods cannot be altered inappropriately. Middle ground must be found. Commercial premises is too broad a definition for that reason.

1. The Commissioner must determine what is proper in a town planning sense. The Appellant argues that a function centre and restaurant are separate as a matter of logic but these uses must be considered in town planning terms. The standard instrument terms are irrelevant. Further a use can fall within two definitions and if one is prohibited then the consequence is that use is prohibited, per CB Investments Reynolds JA at 275.

1. In relation to ground 2, the Appellant argued that a restaurant was distinguishable from a function centre because a restaurant accepts bookings from members of the public. A function centre is booked for an event. No definition of restaurant refers to the need to be always available for a booking. The only requirement of a restaurant is that it serve a meal. There is no relevant distinction between the two uses of function centre and restaurant and therefore the Commissioner looked at what had been applied for as described in the DA and plans. At [42] she considered the size of the area to be used and the hours of operation in concluding the use could be characterised as that of a restaurant. At [43] the same considerations did not apply to use as a conference facility as food and beverage provision was ancillary to that use. The intention or motive of the persons attending is irrelevant, per Reynolds JA (Hope JA concurring, with additional reasons) in CB Investments at 276. The question is what use is the land being put to. It does not matter why a person is coming to particular premises but that the land is being used for the provision of a meal. The only criteria to assess is the consumption of food.

1. The Court need only consider ground 1 in relation to the Commissioner's finding that there are two uses if the Court upholds ground 2. It is permissible to have two separate uses for a town planning purpose. Use and purpose are interchangeable per Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 at 409 - 410. The Appellant does not challenge the findings at [45] that the uses are separate, yet complains that the Commissioner's findings as to the uses are too detailed. The finding that part of a use is for a restaurant then finding that is a separate and independent use is consistent with O'Donnell . The characterisation of use for function centre is too general as that can include anything where people are socially aligned. Under the SREP the function centre use was found to be too broad applying Chamwell and Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 . Once the Commissioner held that function centre was too vague then two uses were considered, one of which could be characterised as a restaurant. That was found to be a separate and independent use at [45]. The Commissioner has not misdirected herself. Use by reference to purpose is in compliance with the principles in Chamwell and O'Keefe .

1. Ground 3 is not an error of law but an exercise of the Commissioner's discretion. The Commissioner held the uses to be partly permissible and partly prohibited and she determined not to grant the Appellant's request to adjourn the proceedings. She was not asked to exercise power under s 80(4) of the EPA Act at the hearing and that cannot be raised now by the Appellant in this appeal.

Finding

1. As submitted by the Appellant, the question of proper characterisation of development is a jurisdictional fact and constitutes a question of law per Warehouse Group (Australia) Pty Ltd v Woolworths Ltd [ 2005] NSWCA 269; (2005) 141 LGERA 376 or a mixed question of fact and law.

1. Ground 1 challenges the Commissioner's finding that there were two independent uses applied for. One, the conference facility, is permissible with consent (at [43]) and the other, the function centre, is prohibited as a water-based restaurant under cl 18(2) of the SREP (at [42]), the issue raised in ground 2. It is therefore logical to consider ground 2 first because if the Appellant succeeds on that ground he succeeds in this appeal as the use of function centre is otherwise permissible with consent under cl 18 of the SREP as an innominate use.

1. The parties are not in disagreement with the principles relevant to characterisation referred to by the Commissioner at [35] - [36] but disagree on the application of these to the facts before the Commissioner. At [35] - [36] the Commissioner stated:

35 The approach to be adopted to characterisation of the proposed development was stated by Kitto J in Shire of Perth v O'Keefe (1963) 110 CLR 528:

The application of the by-law in a particular case is therefore not to be approached through a meticulous examination of the details of processes or activities, or through a precise cataloguing of individual items of goods dealt in, but by asking what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date.

36 In Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400 at 407 Preston CJ held, applying Royal Agricultural Society (NSW) v Sydney City Council (1987) 61 LGRA 305 at 310, that the characterisation of the purpose of a use of land should be undertaken "at a level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on, not in terms of the detailed activities, transactions or processes". The task of characterisation of a proposed development must also be done in a "common sense and practical way": Chamwell , at 408.

1. As identified by the Council, the Commissioner's task was to construe the SREP as it applied to the facts in this case. At [37] the Commissioner identifies the physical works proposed which are "the means by which the land is made to serve" the purpose of the proposed development, relying on Chamwell . At [38] the Commissioner refers to the application for a "level 1 Function Centre" and that the DA distinguishes between the two different uses of function centre and conference venue. At [39] she stated that when considered at a higher level of generality the purpose of the proposed uses was a venue for holding functions, including weddings and conferences which description fitted the definition of function centre in the standard instrument but that instrument does not apply. In the last sentence of [39] the Commissioner identified the issue requiring determination as whether the uses were for a single purpose of commercial premises, which would include a function centre use, or for two separate purposes. At [40] she sets out the principles in Matic at [7] - [9] which emphasise that the construction of an EPI is to be determined by reference to the language of the instrument considered in context. At [42] she identifies that restaurant is not a word defined in the SREP and applies the ordinary meaning of a place where meals are served to customers. This definition is considered in the context of the DA in relation to the built form proposed and the hours of operation and the size of area for customers seated at tables.

1. According to the written submissions of the Appellant at first instance, which were tendered, the Appellant was contending for a function centre or commercial premises purpose. There appears to be a shift of emphasis by the Appellant in this appeal in the description of the purpose of use as that of function centre rather than commercial premises from that before the Commissioner, as the judgment refers to commercial premises at [39]. I do not consider that shift in emphasis changes the issues before me materially from those before the Commissioner as commercial premises or function centre is an innominate use under the SREP.

1. The standard instrument definitions which the Appellant sought to rely on in submissions do not apply as these are not adopted in the SREP as noted by the Commissioner at [39]. The ordinary meaning of words can be applied to the description of a use such as the ordinary definition of restaurant as defined in a relevant dictionary. The application of dictionary definitions to aid in the construction of a statutory provision, also referred to by the Appellant, is accepted, see for example Pink Star Entertainment at [89]. Such an approach was taken by the Commissioner at [42] in considering that when used for functions, level 1 could be characterised as being used for the purpose of a restaurant when an ordinary meaning was applied. "Function centre" also has an ordinary meaning as found in a dictionary, as identified in the Appellant's submissions (par 18), which is different from the ordinary meaning of restaurant.

1. The authorities on characterisation must also be applied in light of those ordinary meanings to distinguish between use and purpose per O'Keefe and Chamwell , inter alia. O'Keefe held, cited in Chamwell at [27], that a use must have a purpose. The use of land is the physical acts by which the land is made to serve some purpose: Newcastle City Council v Royal Newcastle Hospital (1957) 96 CLR 493 at 508. Contrary to the Council's submissions, the two words are not interchangeable and I do not consider O'Donnell supports such a submission. O'Donnell was another case where the characterisation of an existing use was before the Court of Appeal. It is necessary for purpose to be distinguished from use in this case.

1. In determining the purpose of a use the parties made conflicting submissions on the role of the intention of the occupier of premises. The Appellant argued this was relevant, the Council submitted it was irrelevant. Both parties referred to CB Investments . Reynolds JA (Hope JA concurring with additional reasons) at 276 recognised that intention does have a role to play in assessing purpose. His Honour said:

The parties adopt polarised positions, the appellant submitting that the findings as to the motivation and intention of the owner and the relationship between the present and ultimate use compel a conclusion in its favour, whilst the respondent submits that the matters of intention and motive are irrelevant and only the use itself should be looked at in what is called an objective way to determine the purpose for which the land is being used.

I do not think that either absolute position is correct. There may be many cases where a proposed activity or erection of a building cannot be characterized without reference to the intention of those concerned and other cases where it is of little or no relevance. I forbear from instancing examples that come to mind for fear of creating embarrassing dicta. The option of silence is to be preferred.

1. CB Investments and other authorities such as Chamwell suggest that the identification of purpose may require more than the use of the built form to be considered. The Commissioner's reasoning largely considers the use of the built form in identifying the purpose of the intended use and the hours of operation in arriving at her conclusion. As identified in the Appellant's DA and accompanying plans and supporting reports, the purpose of the use(s) is described as a function centre. The Appellant does not intend to use the site for a restaurant.

1. That the same premises can have two different uses which each have different town planning incidents is illustrated in Grace v Thomas Street Caf . In the Court of Appeal a caf was distinguished from a milk bar in determining the extent of an existing use. While that case was considering characterisation of use rather than purpose of use the discussion of how different uses give rise to different incidents from a town planning perspective to distinguish between the two uses there under consideration is relevant here; see Beazley JA at [88] - [90]. The need to differentiate between the use of a site which meets a physical description of restaurant, defined broadly as a place which serves meals, does not take into account the evidence before the Court of the intended purpose of the use of level 1 as a function centre.

1. The function centre purpose will include the serving of meals and alcohol to an extent that will have similarity to a restaurant use applying the ordinary meaning of that term according to the judgment. The two uses do not coincide however. Contrary to the Council's submissions it is relevant to consider the differences in terms of town planning incidents between the two in relation to why persons attend a restaurant in contrast to those attending a function centre, similar to the analysis in Grace v Thomas Street Caf, and as submitted by the Appellant (par 15). The different incidents arise in large part because of the differing purpose of function centre compared to that of a restaurant use. Stonnington , referred to by the Appellant, is an example of a decision where the use of a building could be broken down into different uses which were held to satisfy one purpose at [4] - [5].

1. That the physical use of land may fit more than one description of activity, here restaurant and function centre, does not render the purpose of the use able to be described as a restaurant that of a restaurant. The Commissioner's reasoning appears to equate use with purpose, see for example the sentence at [42] which states that the use for functions "can be characterised as being used for the purposes of a restaurant understood in its ordinary meaning". As stated above, the purpose of the proposed development is that of function centre.

1. Unlike a number of cases referred to where the Court is characterising a use that may have changed over time, here the Court is considering a development application which identifies the intended purpose of the development for which consent is being sought. The specified purpose is not that of a restaurant and an application for a function centre purpose is not in this case an application for a restaurant use.

1. For completeness I note that the Council also argued that it was necessary to characterise a use/purpose at a level which enables its identification for town planning purposes that is not too detailed nor too general. The Commissioner considered at [42] that the definition of "commercial" with its ordinary meaning was too broad in the context that the Commissioner had found that the proposed use as a function centre came within one of the specific paragraphs of "land/water interface" development. There is little difference in terms of level of detail between the description of function centre and restaurant so that this submission did not have much bearing on my reasoning.

1. For the reasons identified above, ground 2 of this appeal is upheld.

1. In ground 1 the Appellant argues that the identification of two separate uses of conference facility and function centre incorrectly characterises the purpose of the use of level 1. It is not necessary to consider ground 1 as both identified uses of conference facility and function centre are permissible following my decision to uphold ground 2 and the Commissioner's finding at [43]. It is also unnecessary to consider ground 3 as the two uses are permissible with development consent regardless of whether they are independent uses.

1. The parties submitted that if the Court upholds this appeal the Court can grant development consent as there are no merit issues otherwise requiring determination. Development consent conditions have been agreed but I note that resident objectors gave evidence before the Commissioner.

Orders

1. The Court makes the following orders:

1. Appeal upheld.

2. Matter remitted to the Commissioner for the making of final orders.

3. Costs reserved unless within 14 days either party files a Notice of Motion in relation to costs, otherwise costs will follow the event.

Decision last updated: 12 April 2011