Delaney v Lithgow City Council

[2006] NSWLEC 469

Land and Environment Court

of New South Wales

CITATION:	Delaney v Lithgow City Council [2006] NSWLEC 469
PARTIES:	APPLICANT Peter Delaney RESPONDENT Lithgow City Council
FILE NUMBER(S):	10244 of 2006
CORAM:	Moore C
KEY ISSUES:	Development Application :- Permitted uses Meaning of "religious retreat house"
LEGISLATION CITED:	Lithgow Local Environmental Plan 1994 Environmental Planning and Assessment Model Provisions Regulation 2000
CASES CITED:	Parks v Byron Shire Council & Anor (2003) NSWLEC 237 ; Association of Franciscan Order of Friars Minor v City of Kew 1967 VR 732; Re Warre’s Will Trusts [1953] 1 WLR 725; [1953] 2 All ER 99; Salvation Army Victoria Property Trust v The President, Councillors and Ratepayers of the Shire of Fern Tree Gully 85 CLR 159; Optima Developments Pty Limited v Lake Macquarie City Council [2003] 131 LGERA 376 ; Pallas Newco Pty Limited v Votraint No 1066 Pty Limited [2003] 129 LGERA 234
DATES OF HEARING:	10 July 2006
EX TEMPORE JUDGMENT DATE:	07/10/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr I Hemmings, barrister INSTRUCTED BY Norman Waterhouse Solicitors RESPONDENT Mr S Griffiths, solicitor Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

10 July 2006

06/10244 Peter Delaney v Lithgow City Council

JUDGMENT

1 COMMISSIONER: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 against the refusal by Lithgow City Council (the council) of Development Application 504/2004 for what is described in the development application as a church and corporate retreat on a property in Peachtree Road located in the Megalong Valley (the site).

2 The site is Lot 301 DP 852548. It has an area of ~ 45 ha and is at the furthest end of Peachtree Road and on its western side. The site is bounded by the Coxs River to the west; Peachtree Road to the east; and private properties to the north and south. The site is described, in the Statement of Basic Facts, as undulating to steep, cleared grazing land which drains to the west to the river. That description is confirmed by a variety of photographs that are included in the council’s bundle of documents.

3 The proposal would comprise a large chapel seating nearly eighty individuals; a large meeting room and lounge; dining room; three accommodation blocks (several of which have accommodation at two levels) totalling thirty-eight double bedrooms; a management office; reception area; staff accommodation; three meeting rooms; and a gymnasium.

4 There is information contained in the Statement of Environmental Effects which accompanied the development application dealing with the expected level of occupation of the complex over a full calendar year It was postulated that there would be an average occupancy rate of a maximum of sixty per cent on weekends and up to twenty per cent on weekdays.

5 There would be fulltime caretaking at the premises. It was expected that there would be four resident staff and that other persons would be brought in from time to time to assist with or undertake activities in conjunction with the centre.

6 The site is located in the Rural 1A zone of the Lithgow Local Environmental Plan 1994 (the LEP).

7 The council refused the application on the basis that the proposed development is not permissible in the 1A zone as the council considers the proposal to be a commercial development. The zoning table in the LEP for the 1A zone notes that the prohibited developments in the zone include commercial premises, and that any development except that which is prohibited in the zone is permitted with development consent.

8 The LEP for the relevant purposes of this appeal adopts the definitions in the (now repealed) Environmental Planning and Assessment Model Provisions Regulation 2000 (the model provisions).

9 The development application describes the development as being for a church executive and leadership retreat, and, as noted earlier, that the proposed use is a church and corporate retreat.

10 The questions that arise for determination in these proceedings is how I should functionally characterise the proposed use of the site and is that use one which is permitted or prohibited as a consequence for the LEP and the definitions in the model provisions.

11 It is appropriate, at this point, to outline the nature of the applicant and those who are associated with him – as it is obvious from the nature of the material put in support of the application that the applicant stands as part of (or as the face of) a wider group or community in putting this application to the council.

12 In fact, the application is put on behalf of a body which is described as Evensong or the Evensong Ministries. Amongst the documents contained in the council’s bundle is a useful document dated 1 September 2002 which assists me understand the nature of the Evensong organization.

13 This document summarises the history of the Evensong organization. It notes that the applicant and his spouse originally formed Evensong in 1995 to develop a ministry for leaders in the church and the wider community where those leaders could be restored and reconciled to the Lord. The document further notes that the ministry is registered with the Australian Taxation Office as an income tax exempt registered church charity and that this registration occurred on 1 January 2003. Although there is a dichotomy in dates, in that the document is dated 2002 and it notes an event taking place in 2003, I have assumed that that is merely a function of an updating of an earlier produced document.

14 The activities of Evensong Ministries are described as being a mission organisation whose mission field is the Australian community; that it is non-denominational; and that it works with a wide variety of churches, missionaries and charities across the nation.

15 It is clear from this document (which expressly states that the Evensong organization is a Christian Ministry organization), and from the remainder of the relevant documents that Evensong is a cross denominational Christian organisation.

16 It would seem to me that the three possible characterisations of the proposed use (as I put, at the commencement of these proceedings, to both Mr Hemmings, barrister for the applicant, and Mr Griffiths, solicitor for the council), are that the application’s use might properly characterised as either:

• a recreation establishment as defined in the model provisions; or
• if not a recreation establishment, commercial premises as defined in the model provisions; or
• if it is neither of those, it is an innominate use.

17 The consequences of those three tests are as follows:

• If it is a recreational establishment, it is permitted because it is expressly not prohibited;
• If it is commercial premises, it is prohibited; and
• If it is an innominate use; it is permitted because, by omission from the list of prohibited uses for the zone, it is not prohibited.

18 The relevant definitions read as follows:

A recreation establishment means health farms, religious retreat houses, rest homes, youth camps and the like, but does not include a building or place elsewhere specifically defined in this clause, or a building or place used or intended for a purpose elsewhere specifically defined in this clause.

19 Commercial premises are defined as meaning 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. An innominate use, self evidently, is one which is not defined.

20 The applicant says, as a commencing point, that that which is proposed is a religious retreat house and therefore falls within one of the specifically nominated permitted exemptions encompassed by the definition of recreation establishment.

21 But if it is not a religious retreat house, Mr Hemmings also says, consistent with the comments Lloyd J in Parks v Byron Shire Council & Anor (2003) NSWLEC 237 at para 10, even if it does not fall within the specific concept of a religious retreat house, nonetheless, considering all of the enumerated activities which fall within that definition and reading them ejusdem generis, that that which is proposed is a religious retreat establishment of some other description or size, and that that should be encompassed within the definition of a recreation establishment.

22 At commencement of the proceedings, I expressed my concern that the written notes or submissions that had been filed in the proceedings for each of the parties treated the term religious retreat houses as requiring an understanding of the word religious and an understanding of the word retreat, but both assumed that the word house had no work to do in that phrase.

23 I put the proposition that, as a general process, one could approach the term religious retreat houses by considering that:

• the word religious characterised the nature of the purpose;
• the word retreat characterised the nature of the activity; and
• the word house characterised the nature of the permitted structure.

24 Although there was no express agreement with this proposition from the legal representatives of the parties, I am satisfied that, by using the words religious retreat houses, the person who drafted that phrase expected and assumed that each of the words contained in the expression would have some work to do in the definition. To determine otherwise, in my view, flies in the face of long standing principles of statutory interpretation.

25 I therefore turn to test the application against each of those three elements.

26 I am satisfied (and do not believe I need to deal with in any detail) that the purpose of the establishment proposed by the applicant is in general terms a religious one, and that the first of the elements has been satisfied.

27 With respect to the question of whether or not that which is proposed to be undertaken as activities on the site are capable of constituting retreats or not, Mr Griffiths took me to a number of matters contained in various documents provided by the applicant.

28 It would suffice for the purposes of this discussion to consider a number of them contained in a document called the Megalong Operating Manual. This manual describes a number of the facilities or services that are to be provided on the site including that:

• there will be good quality food;
• there will be access, under certain circumstances, to office, email, fax et cetera facilities assisted by secretarial support; and
• there would be medical assessments, gymnasium activities.

29 The accommodation is described as being of four star quality with each room containing a number of facilities including bar fridges, telephone and internet facilities, an ability to plug in a printer, access to cable TV and in-house videos, a work desk, a spa bath and a variety of other matters.

30 Another document (which is undated and is authored by a person named Paul Pickering) describes the use of the land and describes this in spiritual terms. It gives a number of the attributes of what is intended might be undertaken on the land (and obviously to be undertaken not merely by those conducting the facility but also by those going to it). It postulates:

• working in an orchard and a vineyard;
• having a sense of fun including a luge run and adventure park;
• fine food prepared with love;
• worship intercession on prophetic truth; and
• health clinic, doctors, counselling, consultants treating mind body and spirit

- each of those uses is specifically annotated with the expression, brings His healing, clearly being a theistic expression attaching to each of those aspects.

31 I infer from those matters and the matters also contained in the Megalong Operating Manual relating to coffee shop facilities; details concerning the gymnasium and medical assessment and the like that they are all anticipated to be conducted on the site.

32 The question is whether I should regard those, in a modern sense, as being conducive to a retreat.

33 During the course of the hearing, I indicated to the legal representatives of the parties that I had been sufficiently troubled by the lack of attention to the word house in the definition to have endeavoured to see whether there was any case law on the subject.

34 I drew their attention to and gave them access to a copy of a decision of Lush J in the Supreme Court of Victoria in Association of Franciscan Order of Friars Minor v City of Kew 1967 VR 732. This report provides little assistance in this case, save and accept that, inter alia, at p 735, His Honour approved the words of Harman J in Re Warre’s Will Trusts [1953] 1 WLR 725; [1953] 2 All ER 99 in which Harman J had described a retreat as being, “A retirement from the activities of the world for a space of time, for religious contemplation and the cleansing of the soul”.

35 Mr Griffiths invites me to assume that for the purposes of the present proceedings the activities proposed on the site do not fit that definition of scope of activity. I am not satisfied that that is necessarily the case.

36 Although there was no evidence on the subject, it is a matter of common knowledge (of which I am entitled to have regard in these proceedings) that what one might describe as modern styles of Christian worship have altered significantly in recent decades and years.

37 Although I have some concerns at the nature of some of the facilities to be provided, a matter for which I will return later, I am not prepared to hold that the activity proposed to be undertaken on the site could not be a religious retreat.

38 With respect to the word houses, I have in evidence the plans of the buildings which are proposed. They are planned on a large scale. Three significantly sized blocks are proposed to contain the residential rooms. These blocks are separate; there is a very large ancillary facility housing the chapel, meeting room, eating area and other facilities such as break-out rooms and the like.

39 Even if I were prepared to assume that the chapel, for example, was merely an ancillary construction necessary for the purposes of undertaking the religious retreats (and for the purposes of this analysis I am prepared so to assume), I am satisfied that, as a matter of fact, an examination of the plans means that it is not possible to characterise the physical development proposed on the site as being a house or houses in any possible interpretation of the word.

40 Although I was not taken to dictionary definitions of the word house, consistency with the general pattern of the use of that word in the model provisions plus its plain, ordinary English use leads me to conclude the residential structures and overall complex could not be so characterised, even subordinating and disregarding the minor buildings on the site.

41 Can therefore, as Mr Hemmings invites me to do, I step back from the particular to the general arising from the decision of Lloyd J earlier cited and bring this proposal within some broader scope of the definition?

42 I am satisfied that I cannot do so.

43 The definition concludes, after enumerating various specific types of use, with the ejusdem generis invoking words and the like. As I have concluded that that which is proposed could not factually be regarded as a religious retreat house because of the scale of the development involved being entirely outside the characteristics of a religious retreat house, I do not see how as a matter of fact, having rejected that concept in specificity, I could then say that it was sufficiently similar in an ejusdem generis sense to bring it back within the definition.

44 I am satisfied that the nature of this establishment is such that descriptors such as campus, complex, centre or something of that nature would be much more appropriate than the use of the words house or of any of the other descriptions in that definition.

45 I note, however, in this context, that it is possible that minor commercial uses which support an otherwise permissible application of this nature (such as the sale of produce from farming or vineyard activities) do not preclude or colour the application so as to render it impermissible (see the decision of the High Court in Salvation Army Victoria Property Trust v The President, Councillors and Ratepayers of the Shire of Fern Tree Gully 85 CLR 159 at 172 and 173).

46 The next question is, Is the use that is proposed by the application a commercial operation?

47 In this regard I am asked by Mr Hemmings to assume that it is not.

48 Effectively the basis for this assumption comes from two elements which are repeated in two documents. The first is contained in a document headed Evensong and dated 1 September 2002 when, under the heading of funding, it notes that the retreat, in its operations, would be funded through donations from a range of contributors. It says:

Those contributors represent both high nett worth individuals and corporate sponsors. The Ministry has budgeted with its contributors and approximate cost to construct of $3,000,000, and annual running costs in the order of $1,500,000. Attendees at the retreat will not be charged a fee for attendance, attendees may choose to make a freewill offering in support of the Ministry.

49 In January 2006, the council wrote to the applicant seeking further information concerning the application. On 9 February 2006, a letter was sent on the letterhead of Evensong and signed by Mr Tom Key (a director of that organisation), providing further information.

50 As part of that response, a document is provided outlining the activities of Evensong. This outlines the history as earlier set out and it repeats, in identical terms, the words relating to funding that were contained in the 2002 document noted above.

51 It is on that “not for profit and not pay for or fee for use” basis that the applicant puts that I should find that these are not commercial premises within the meaning of the model provisions, and therefore the LEP.

52 Mr Griffiths, on behalf of the council, puts a range of contra indicators.

53 The first arises out of a document dated 3 December 2002 headed Evensong. Under part 1.3.3 of that document, there are three paragraphs dealing with the concept of business creation, and it makes it clear, in the context of Evensong, that Evensong does consider that it should operate in the commercial world as well as in the spiritual world. Following on that page appears under the heading of business opportunities a number of matters relating to the activities of Evensong. The paragraph commences,

Evensong activity to date has created a number of opportunities to start businesses.

54 There is then a discussion about the nature of business and relationship between business and Evensong and Evensong’s activities. So it then goes with what is on the list – reading that as I understand it to in the ordinary English sense as being what are the future opportunities for Evensong under the heading Business Opportunities.

• The first is an activity created to be created as a Christian based funds management business, described as the Store House;
• The second is to be a retail activity entitled Charismata – Gifts of Grace;
• The third is described as Megalong – The Restoration and Healing Centre; and
• The fourth is music production.

55 A document entitled Megalong Operating Manual (at p 30), dated May 2003, says that the centre is also to be used for conferences.

56 As well as describing the facilities on p 33 it says in par 27, “In additional to the chapel is the meeting room. In stage one, the meeting room will have the flexibility to be a lounge area looking out over the River Valley as well as a table meeting or lecture style setup for fifty people”.

57 On p 34, as I adverted to earlier, the facilities that are to be provided in the individual rooms include telephone and internet facilities; an ability to plug in a printer; access to cable TV and in-house videos and a work desk. These are facilities specifically in addition to what were earlier described in that document as emergency facilities (on p 32 of the Megalong Operating Manual of 2003) that would be provided through the central secretarial support area.

58 The final document that Mr Griffith took me to is the Statement of Environmental Effects (dated October 2004) where, inter alia, it describes the maximum weekend occupancy as being sixty per cent and parenthetically describes that as being comparable with other commercial accommodation.

59 There is one matter that I should turn to for completeness before determining the matter. It was put by Mr Griffiths that the fact that an entity known as DeCalc Pty Limited is the owner of the land and has a mortgage to the National Australia Bank somehow flavours that which is proposed by Mr Delaney and those associated with him. I do not accept that this is so. Whatever are the requirements or obligations on DeCalc Pty Limited as a response to its mortgage or under corporations law are not matters that are relevant in these proceedings.

60 Cowdroy J, in Optima Developments Pty Limited v Lake Macquarie City Council [2003] 131 LGERA 376 at p 381, concluded that where something can be characterised as commercial premises, unless it is picked up by some other specific definition it becomes a commercial premises in general.

61 I do not consider that that is the position with respect to these premises so that they should be characterised as being entirely commercial.

62 However, I am satisfied, on balance from the material that I have been taken to, that I cannot conclude that the operation to be undertaken on the site is exclusively intended to be spiritual, and that there would be no commercial activity or business possible or proposed to be undertaken on the site – notwithstanding the funding aspirations of the applicant stated as twice cited.

63 I do not consider it reasonable to assume, in light of all the evidence, that this could rationally be the case - having been provided with no further evidence other than that material contained in the documents.

64 I am satisfied, as a consequence, that at least two uses are likely to be undertaken on the site. One of them will be a purely spiritual or theistic operation and that would, in my view, be an innominate use under the LEP and would be permissible.

65 However, I am also satisfied that its occurrence is sufficiently probable that I should assume that there will be at least some element of a commercial operation undertaken on the site.

66 As a consequence of there being two separate uses on the site, I am obliged to follow the decision of Talbot J in Pallas Newco Pty Limited v Votraint No 1066 Pty Limited [2003] 129 LGERA 234 at 242 where His Honour held that, if there are two uses and the second use is subordinate but not subservient to the other, and one of those uses (even if it is the minor, subordinate use) is prohibited, then the totality of the application is tainted by that second and impermissible use.

67 In these circumstances, I am satisfied that the commercial activities which will take place on the site are not subservient in the sense that, for example a chapel might be so regarded and, although I am satisfied that they would be subordinate, I am not satisfied that they would not exist.

68 The consequence of that is that the application as it is presently conceived includes a use which is prohibited pursuant to the LEP. The further consequence must necessarily be that the appeal is dismissed and the development application refused. The exhibits are returned.

Tim Moore

Commissioner of the Court