F and W Investment Pty Limited v Pittwater Council

[2003] NSWLEC 243

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Land and Environment Court

of New South Wales

CITATION:	F & W Investment Pty Limited v Pittwater Council [2003] NSWLEC 243
PARTIES:	APPLICANT: F & W Investment Pty Limited RESPONDENT: Pittwater Council
FILE NUMBER(S):	(1)0385 of 2002
CORAM:	Bignold J
KEY ISSUES:	Development Consent :- whether consent for dwelling with bed and breakfast component authorises use of premises for conferences or conventions
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, s 121ZK
CASES CITED:
DATES OF HEARING:	10/06/2003
EX TEMPORE JUDGMENT DATE :	06/10/2003
LEGAL REPRESENTATIVES:	APPLICANT: Mr P Clay, Barrister SOLICITORS BTS Lawyers RESPONDENT: Mr D Parry, Barrister SOLICITORS Mallesons Stephen Jaques

JUDGMENT:

1. This was an appeal pursuant to s 121ZK of the Environmental Planning and Assessment Act 1979 against the issue of an Order pursuant to s 121B of that Act by the Council on the Applicant dated 24 June 2002 (the Order).

2. The Order was expressed to be made in respect of premises known as 65 Binya Road Palm Beach and in terms the Order required the owner, the Applicant in these proceedings being the owners of the subject premises, “to comply with the terms set out in schedule one to this Order within the time specified in the schedule below”. The notice continues:

The reasons why this Order is given to you are, it has come to the Council’s attention through public complaint that conferences and/or conventions have been conducted at the subject property.

This use is not considered as being ancillary to the approved bed and breakfast use. Under Pittwater Local Environmental Plan 1993, the zoning of the site is Residential 2A, it is determined that the use of carrying out conferences and/or conventions is prohibited within the zone.

3. The schedule is in these terms, “cease the use of the property for the use of conferences and/or conventions within 21 days of receipt of this Order.”

4. The Applicant duly appealed to this Court exercising its statutory right of appeal and on the hearing of the appeal today the Council led evidence in its case in support of the Court confirming the Order. That evidence indicated that the subject premises have in 2001, 2002 and 2003 been used for purposes which included the holding of conferences in some accommodation contained within the building other than the three bedrooms which have been approved for use as a “bed and breakfast establishment”.

5. That consent was granted by the Council in 1999 for the erection of a new building comprising a dwelling house but incorporating a “bed and breakfast” component. That consent was subject to a number of conditions some of them regulating the approved use.

6. As a result of hearing the Council’s evidence the Applicant’s case was opened and it became apparent from the opening address by the Applicant’s Counsel that the Applicant recognised that the future use of the premises for the aforesaid conference convention purposes could not readily be justified upon the basis of the relevant development consent pertaining to the development which I have earlier referred to. However, in the opening address, Counsel for the Applicant indicated that it was no longer the Applicant’s intention to utilise the room in the building which had been used from time to time as the venue for conferences or conventions and it appeared to me upon hearing this opening address that much of the issue which was alive between the parties had disappeared or evaporated. I inquired as to whether or no the parties could, themselves, resolve their difficulties.

7. For that purpose, the proceedings were briefly adjourned and the parties have been in dialogue. As a result upon resumption, the Court received an open offer made by the Applicant as to the Orders that it was prepared to suffer. The Orders drafted were an attempt to define with greater particularity the nature of the use made of the subject premises which was not authorised by the existing consent. Following further suggestions made by Counsel for the Council, a further brief adjournment was granted. Before adjourning I had expressed the opinion, which I now repeat and adhere to, that I was satisfied on the evidence presented by the Council, considered alone (and in isolation of any evidence that may have been forthcoming from the Applicant) and no such evidence was ultimately tendered because of the settlement discussions, that it was clear that the extant development consent for the “bed and breakfast establishment” did not authorise the use of the relevant room for the conducting of conferences and the like and that the suggestion proffered by Counsel for the Council marked the boundaries of what could legitimately be sanctioned as incidental activity pertaining to the holding of conferences being incidental to the approved bed and breakfast establishment use.

8. There was considerable debate throughout the hearing as to the precise denotation and connotation of the words, “conference and convention.” They are not words of any technicality or bearing a technical meaning. They are not words or planning terms of art. They are ordinary English words and resort to various dictionary definitions no doubt informed the parties and the various submissions that were put and the process of settlement discussions.

9. In the result and following the final adjournment, upon resumption, the Court was invited by the parties to make Orders by consent disposing of the present proceedings.

10. In my opinion, it is appropriate that the Court adopt those Orders by consent. In particular, I am satisfied that the substitute s 121B Order that the parties invite me to make in substitution for the existing Order issued by the Council reflects the high water mark of incidental usage for convention purposes of the approved bed and breakfast establishment use of the subject premises.

11. Accordingly, for the foregoing reasons I am content to adopt the settlement outcome reached between the parties. Accordingly, and by consent, I make the following Orders:

1. The appeal be upheld;

2. The Order pursuant to s 121B of the Environmental Planning and Assessment Act 1979 issued by the Council on 24 June 2002 to the Applicant being the owner of the premises, 65 Binya Road Palm Beach be revoked and there be substituted for the revoked Order the following Order addressed to the Applicant: To cease the use of the property or the premises situated 65 Binya Road Palm Beach for the use of conferences and/or conventions within 21 days of this Order provided that this Order does not preclude any conference or convention at which the only participants are at the time of the conference or convention also in occupation of the three approved bed and breakfast establishment guest rooms on the lowest level of the building for the purposes of overnight accommodation.

3. That there be no Order as to costs in the proceedings other than the cost Order made by Talbot J on 25 February this year; and the exhibits may be returned.