Codling v Manly Council

[2010] NSWLEC 1299

Land and Environment Court

of New South Wales

CITATION:	Codling v Manly Council [2010] NSWLEC 1299
PARTIES:	APPLICANT John Codling RESPONDENT Manly Council
FILE NUMBER(S):	10420 of 2010
CORAM:	Pearson C
KEY ISSUES:	DEVELOPMENT APPLICATION :-
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 Environmental Planning and Assessment Model Provisions 1980 Standard Instrument (Local Environmental Plans) Order 2006 Manly Local Environmental Plan 1988
CASES CITED:	Shire of Perth v O'Keefe (1963) 110 CLR 528 Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400 Royal Agricultural Society (NSW) v Sydney City Council (1987) 61 LGRA 305 Matic v Mid Western Regional Council [2008] NSWLEC 113 Optima Developments Pty Ltd v Lake Macquarie City Council [2003] NSWLEC 224 Solicitor General for New South Wales v Foodbarn Pty Ltd (1972) 32 LGRA 130 Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 Maxnox Pty Ltd v Hurstville City Council (2006) 145 LGERA 373
DATES OF HEARING:	20, 21 October 2010
DATE OF JUDGMENT:	1 December 2010
LEGAL REPRESENTATIVES:	APPLICANT Mr G Newport Instructed by Mr S Patterson Wilshire Webb Staunton Beattie RESPONDENT Ms S Duggan SC Instructed by Ms C Schofield Pikes Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Commissioner Pearson

1 December 2010

10420 of 2010 Codling v Manly Council

JUDGMENT

1 Commissioner: This is an appeal pursuant to s97(1) of the Environmental Planning and Assessment Act 1979 (the Act) from the determination by Manly Council (the Council) to refuse consent to Development Application 25/2009 for the “fitout, minor alterations and additions to Level 1 of the Manly Bathers Pavilion”.

2 The development application was lodged in February 2009. The applicant lodged amended plans in May 2009. A report to the Manly Independent Assessment Panel dated 17 September 2009 recommended deferred commencement approval of the application. On 23 September 2009 the Manly Independent Assessment Panel refused consent, on the ground that “the Council has no power to approve the application pursuant to the Existing Use provisions of the Environmental Planning and Assessment Act 1979 and Regulations”.

3 The issue between the parties is whether the proposed development is permissible under the applicable planning controls. It is common ground that if it is, there are no merits issues that would warrant refusal, and the parties have reached agreement on the conditions to be imposed. Those conditions include conditions relating to sound proofing and operation of external doors and windows, operation of louvres, implementation of a construction management plan, limitation of hours of construction work, provision of an external smoking area, and implementation of a Little Penguin monitoring program.

The site and its locality

4 The Manly Bathers Pavilion is located on the western side of Manly Cove. The site on which it is located comprises of two allotments, lots 1 and 2 in DP 1019352, is irregular in shape, and has a total area of approximately 1,712sqm. Most of the site is located beyond the mean high water mark; a small portion is above the mean high water mark. The site contains the Manly Waterworks which is used as a recreational waterslide area.

5 The Manly Bathers Pavilion is listed as an item of State Heritage value. The Manly Bathers Pavilion is located in the immediate vicinity of Manly Ocean World, and Manly Art Gallery and Museum.

6 The site has pedestrian access from West Esplanade via Foreshore Park and on an elevated covered walkway from Commonwealth Parade.

7 The foreshore area adjacent to the site is known Little Penguin habitat used for nesting and moulting of breeding pairs of Little Penguins.

Proposed development

8 On 16 July 2004 the Council granted development consent to DA 279/03 permitting alterations and additions, including adaptive reuse, to levels 1 and 2 of the Manly Bathers Pavilion, described as the Pier Restaurant. The approved plans for level 1 include “Retail/licensed refreshment rooms” and two separate kitchen and stores areas; and retention and refurbishment of an existing foyer opening on to the walkway on the eastern colonnade. The approved plans for level 2 include an extended Existing Licensed Restaurant, and Licensed Refreshment Rooms. Works associated with DA 279/03 have commenced on the site. The conditions imposed included condition 69 which required that the individual use of the building and new spaces created were to obtain separate approval with detail regarding the new uses and fit outs, including any change to the heritage fabric; any new use was to have regard to the heritage significance of the place.

9 The development application the subject of these proceedings relates to Level 1 of the Manly Bathers Pavilion. The applicant separately applied for development consent for alterations and additions to level 2, including fit-out for the restaurant, in Development Application DA26/09 lodged in February 2009. DA26/09 was approved on 25 September 2009, and the works approved for the restaurant on level 2 have been undertaken.

10 The proposed development of Level 1 involves the amendment of the kitchen approved in DA 279/03, the demolition of a number of existing internal walls, and the construction of areas identified on the plans as cool rooms, dry store, store, staff WC, female and male WC, and a change room, in the northern and north western part of level 1 closest to the Manly Waterworks. These areas, referred to in submissions as the “back of house” area, represent approximately half the area of level 1. The proposed development includes the construction of a bar, and a foyer, which adjoins double airlock doors mid way along the eastern elevation. The remainder of level 1, on the southern side of the building, is described in the plans as “Licensed refreshment rooms as approved DA279/03 (Function room)”. The plans include a “new operable partition wall with built in pass doors” dividing the area available for clients. There is a public walkway adjoining the southern and eastern elevations, which is used for pedestrian access from Commonwealth Parade; the use of the proposed amended window and door openings onto that walkway were the subject of specific conditions agreed between the parties.

11 The development application described the proposed development as “Fitout, minor alterations and additions to level 1 of the Manly Bathers Pavilion”. On page 2 of the development application form under the heading “Information for the Australian Bureau of Statistics” the proposed use was described as “Refreshment rooms water based restaurant & entertainment facilities”. The Statement of Environmental Effects (dated January 2009) stated (at p3):

The proposal is for the internal fitout and alterations and additions to the existing Refreshment Room on Level 1 of the Manly Bathers Pavilion (MBP), which is an item of State Heritage Significance.

12 An assessment of heritage impact by NBRS Partners dated 3 February 2009 which accompanied the development application states:

The proposals are for a number of related refreshment rooms occupying the whole of the existing level 1 areas which were originally change rooms and more recently offices, a dive school and storage.

13 As noted above, the application was amended in May 2009, and in a letter dated 15 May 2009 by SNA Architects for the re-submitted plans the proposed changes to level 1 were described as follows:

DA No 25/2008 – Manly Pavilion Function Centre Level 1
Level 1 shall be operated solely by the Owner (no sub-lease) and the South wing’s primary use will be as an upmarket venue for functions and conferences;
Restaurant bar deleted;
Entertainment deleted;
Children’s area deleted;
Addition of air locks to the East entry doors;
Deletion of bar from the main function room space;
Incorporation of acoustic ceiling linings throughout the main function room space.

14 A Plan of Management (dated 11 June 2009) was provided, which states:

Our vision for the Level 1 Function centre is to become the northern beaches premier functions & conference venue. Conferences space is rare in Manly and we propose to cater to all conferences groups, providing the best equipment and facilities available.

15 Part 4 of the Plan of Management Proposed Number of Patrons states:

(i) For an average wedding, the Function Centre would cater for between 80-120 guests.
(ii) In full conference mode, the premises would have the capacity for approximately 300 people to be seated for a presentation or seminar. The venue is also capable of being split into two smaller spaces to afford greater flexibility in terms of its use.

16 Part 9 Licensing Details of the Plan of Management states:

(i) An existing ‘Restaurant on Premises’ liquor licence is in place for service of alcohol in the restaurant on Level 2.
(ii) The existing ‘Restaurant on Premises’ liquor licence will be extended and redefined to include both the Level 1 Function Centre and the Level 2 Restaurant.

Planning controls

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.

…

water-based development means any development carried out wholly below the mean high water mark, and development for any of the following purposes:

(a) advertisements,
(b) advertising structures,
(c) aids to navigation,
(d) aviation facilities,
(e) boat lifts,
(f) charter and tourism boating facilities,
(g) commercial port facilities,
(h) dredging,
(i) flora and fauna enclosures,
(j) houseboats,
(k) mooring pens,
(l) private landing facilities,
(m) private landing steps,
(n) private marinas,
(o) public boardwalks,
(p) public water transport facilities,
(q) single moorings,
(r) skids,
(s) slipways,
(t) swimming enclosures,
but does not include land/water interface development.

19 Under cl5(1) of the SREP the consent authority for “land/water interface development” is the council of the local government area in which, or nearest to which, the land on which the development is proposed to be carried out, unless the subclauses (2) or (3) apply. It was common ground that neither of those subclauses apply in these proceedings.

20 The objectives of the W2 Environment Protection zone are:

Zone No W2 Environment Protection

The objectives of this zone are as follows:
(a) to protect the natural and cultural values of waters in this zone,
(b) to prevent damage or the possibility of longer term detrimental impacts to the natural and cultural values of waters in this zone and adjoining foreshores,
(c) to give preference to enhancing and rehabilitating the natural and cultural values of waters in this zone and adjoining foreshores,
(d) to provide for the long-term management of the natural and cultural values of waters in this zone and adjoining foreshores.

21 Clause 17(2) provides:

(2) Except as otherwise provided by this plan, the consent authority must not grant development consent to any development unless satisfied that it is consistent with the aims of this plan and the objectives of the zone in which it is proposed to be carried out.

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 cl18 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 .

Evidence

24 The Council publicly notified the amended development application and received 71 written submissions. Those submissions raised concerns as to noise impact on adjoining residences and the penguin habitat; inadequate parking; increase in pedestrian traffic using the boardwalk; impact of construction work on penguin habitat and disturbance to the penguin colony during nesting and the breeding season; impact on public use of the boardwalk; impact on the penguin habitat from smokers and from light; impact of deliveries; heritage impact; and an increase in anti-social behaviour in adjoining streets.

25 The hearing commenced on site where evidence was given by eight resident objectors. The concerns expressed related to noise from functions, parking, congestion when guests exit the premises, anti-social behaviour, and impact on the Little Penguins which nest in the adjacent foreshore area. The view included a view of the location of Little Penguin nesting sites adjacent to the site. Evidence tendered in the proceedings included a plan and photograph showing the location of penguin burrows adjacent to the site and those close to the Manly Wharf.

26 The documentary evidence included an Assessment of Significance for the Manly Population of Little Penguins (April 2009) and a report on Monitoring of the Manly Population of Little Penguins during Alterations and Additions to the Manly Bathers Pavilion (April 2010), prepared on behalf of the applicant by Cardno Ecology Lab.

Applicant’s submissions

27 The applicant submits that the proposed use is permissible pursuant to cl18(2) of the SREP as being for an innominate purpose of “commercial premises”; to the extent that there are two separate uses, namely as a convention centre and a function centre, that would be for the purpose of “commercial premises”. The applicant accepts that the proposed use meets the first part of the definition of “water-based restaurant and entertainment facility” in the SREP, namely that it is to be conducted on “…a structure that floats on, or is fixed in, the waterway”, and that it meets the final part of that definition, namely that the structure “has a direct structural connection between the foreshore and the waterway”. The applicant submits, however, the proposed use is not “as a “club or restaurant or for entertainment (on a commercial basis)”, and it is therefore not a “water-based restaurant and entertainment facility”. The definition of “land/water interface development” in the SREP separately includes the purposes of both “water-based restaurants and entertainment facilities” and “commercial premises” carried out wholly or partly in the waterway, and accordingly the clear intent was to characterise the two purposes separately.

28 The term “commercial premises” is not defined in the SREP. The applicant submits that the definition of “commercial premises” applicable in the Manly LEP 1988 (which incorporates the definition in the Environmental Planning and Assessment Model Provisions 1980) should be applied:

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

29 In the alternative, the applicant submits that “commercial premises” should be understood as a matter of ordinary terminology, based on the dictionary definition. The applicant referred to the definition in the Australian Concise Oxford Dictionary (7^th ed, 1987), which defines “commercial” to mean:

of, engaged in, bearing on, commerce; interested in financial return rather than artistry;

30 The applicant submits that the definition of “function centre” in the Standard Instrument (Local Environmental Plans) Order 2006 should be applied:

function centre means 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.

31 The applicant relies on the definitions of “restaurant” provided in the Australian Concise Oxford Dictionary (7^th ed), being “public premises where meals or refreshments may be had”, and the Macquarie Dictionary (revised 3^rd ed), being “an establishment where meals, especially main meals, are served to customers”. The applicant submits that a function centre is not a restaurant according to that definition; and if not a restaurant, can only be characterised as “commercial premises”.

32 The applicant submits that the references to a refreshment room and a restaurant in the plans and Plan of Management are historical references to those purposes approved by DA 279/03 on 16 July 2004, and also to the liquor licence provisions, and are not indicative of the nature of the proposed operation or use.

Respondent’s submissions

33 The Council submits that the proposed use of Level 1 for the purposes of a function centre and for the provision of conferences are two separate and independent uses of the land. The Council accepts that the use for the purpose of a conference facility with ancillary food and beverage provision is permissible as an innominate use; however, the use for the purpose of a function facility is characterised as a restaurant, and as a “water-based restaurant and entertainment facility” is a prohibited use in the W2 zone. The Council submits that the function centre is a restaurant because of the provision of food and drink to the people who go there, and it is not necessary that it be open to members of the public. The area is not a bare hall for people to hire for functions, and the kitchen and other facilities occupy an equal floor area to that proposed for seating of clients, which should be compared with the level 2 restaurant where these “back of house” elements occupy one third of the floor area. Even with the ability to halve the area of the room the provision of food would still be an essential component.

34 The Council submits that the Model Provisions definitions should not be used, as the SREP was made after the Model Provisions and it would have been open for the SREP to adopt them. The appropriate definition of “commercial premises” is its ordinary dictionary meaning, however it is not sufficient that the use be for a commercial return, as that is too broad, and would include many of the uses listed in the Table to cl18 of the SREP.

Consideration

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.

37 The physical works proposed, marked in yellow on the plans, relate primarily to the works required to construct a kitchen, storage, bar, toilet facilities and service areas on level 1, and, as was the case in Chamwell, are “the means by which the land is made to serve” the purpose of the proposed development. In identifying that purpose, the original development application before its amendment in May 2009, including the description provided in the Statement of Environmental Effects, is of limited assistance. The Statement of Environmental Effects stated that the facility was being designed to accommodate a café and an ancillary child minding service, and that the applicant was relying on existing use rights arising from the approval in 2004 of refreshment rooms. In oral submissions Mr Newport for the applicant stated that the applicant is not relying on any existing use rights to support the amended development application.

38 The application as amended is described in the letter dated 15 May 2009 as being for the “Level 1 Function Centre”. The Plan of Management refers throughout to level 1 as a “Function Centre”. The letter dated 15 May 2009, and the Plan of Management, distinguish between two different uses proposed for level 1, namely function centre and conference venue. Based on the Plan of Management, the proposed use as a function centre would include weddings (an average being 80-120 guests), and other functions at which meals could be served; the proposed use as a conference venue could accommodate up to 300 people for a presentation or seminar; the premises are to continue to be licensed; and the hours of operation are 7am to 12am Monday-Saturday and 6am to 11am Sunday.

39 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.

40 In construing cl18, the principles outlined by Jagot J in Matic v Mid Western Regional Council [2008] NSWLEC 113 are of assistance. Jagot J held:

7 The meaning of a provision in an environmental planning instrument must be determined having regard to its context and purpose ( Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379 at [37] – [46] and [63]; s 33 of the Interpretation Act 1987). “Context” has a wide scope and may include the “mischief which…one may discern the statute was intended to remedy” so that, by this method, an alternative construction to the literal meaning may be preferred if it is “reasonably open and more closely conforms to the legislative intent” ( CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408).

8 Legislative intent, however, is not to be discerned by reference to pre-conceived ideas or vague notions of what might or might not be desirable. Intent is to be objectively determined. It is manifested “by the use of language” in the document to be construed ( Wilson v Anderson and Others (2002) 213 CLR 401 at [8]). Accordingly:

…it is through the meaning of the text, understood in the light of background, purpose and object, and surrounding circumstances, that the legislature expresses its intention, and it is from the text, read in that light, that intention is inferred ( Singh v The Commonwealth and Another (2004) 222 CLR 322 at [19]).

9 These requirements have particular significance for the construction of environmental planning instruments. The planning purpose of an environmental planning instrument is to be determined by reference to the language of the instrument considered in context. There is no room for “some preconceived general notion of what constitutes planning" ( Western Australian Planning Commission v Temwood Holdings Pty Limited (2004) 221 CLR 30 at [56] citing Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 123 CLR 490 at 500). Further, and as noted in Calleja v Botany Bay City Council (2005) 142 LGERA 104 at [25] “any attempt to always find planning logic in planning instruments is generally a barren exercise”.

41 The context for consideration of clause 18 includes the broader statement of aims and objectives of the SREP in cl2, and for the W2 zone, and the planning principles in Part 2 of the SREP. The parties did not specifically address these aims and objectives; the report to the Manly Independent Assessment Panel (Exhibit B) concluded that the proposed development met the applicable objectives and principles as an adaptive reuse of an existing building. It was common ground that the requirements of cl18(2)(a), (b) and (c) would be met, subject to the imposition of conditions intended to minimise potential adverse impacts. Clause 18 also needs to be read in the context of the threefold classification of development identified in cl5 of the SREP. The Table in cl18 includes development falling within all three categories, for example, “boat sheds” which are “land-based development”; “houseboats”, which are “water-based development”; and “commercial marinas” which are “land/water interface development”. It was common ground that however the proposed development is characterised, it is a form of “land/water interface development” as defined in the SREP, and that as a consequence the Council is the consent authority.

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 façade 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.

46 The applicant submits that if I were to reach the conclusion that the present application for a function centre is for a purpose which is prohibited under the SREP, the applicant should have an opportunity to amend the application so as to utilise the 2004 development consent. The Council opposes that approach, while accepting that there would remain a discretion to permit the applicant to amend the application, on the basis that the Council’s position that the proposal is prohibited has been known for some time. The decision of Biscoe J in Maxnox Pty Ltd v Hurstville City Council (2006) 145 LGERA 373 is authority for the proposition that in some cases it may be appropriate to give an applicant an opportunity to amend its application following an interim judgment. Biscoe J declined to do so in Maxnox, on the basis that there was at least the possibility that a modified development which the Court was likely to approve would be significantly different from the proposal then before the Court. In the circumstances of this case, I consider that an amended application relying on any existing use rights that arise from development consent DA 279/03 would raise issues different to those raised by the application before the Court, and it would not be appropriate to adjourn the proceedings to permit such an amendment.

Orders

47 The orders of the Court are:

1. The appeal is dismissed.
2. Development Application No 25/2009 for the fitout, minor alterations and additions to level 1 of the Manly Bathers Pavilion is refused.
3. The exhibits are returned, except for Exhibits A, E and 5.