Guideline Drafting & Design v Marrickville Municipal Council

[1988] NSWLEC 163

Land and Environment Court

of New South Wales

CITATION:	Guideline Drafting & Design v Marrickville Municipal Council [1988] NSWLEC 163
PARTIES:	APPLICANT Guideline Drafting & Design RESPONDENT Marrickville Municipal Council
FILE NUMBER(S):	10185 of 1987
CORAM:	Bignold J
KEY ISSUES:	:-
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 English Town and Country Planning Act 1971
CASES CITED:	Willoughby Municipal Council v. Manchil Pty. Ltd (1974) ; Barmuncol Pty. Ltd. v. Maroochy Shire Council (1983); Minister for Aboriginal Affairs v. Peko-Wallsend Ltd. (1986); Miller v. Gunnedah Municipal Council (1978) ; Gray v. Fairfield City Council (1987); Sydney City Council v. Hurzeler (1981); Dennis v. Parramatta City Council (1981); Hope v. Bathurst City Council (1980) ; Azzopardi v. Tasman U.E.B. industries Ltd. (1985)
DATES OF HEARING:
DATE OF JUDGMENT:	03/17/1988
LEGAL REPRESENTATIVES:

JUDGMENT:

BIGNOLD J.: This is an appeal pursuant to s.56A of the Land and Environment Court Act 1979 against the decision of an Assessor dismissing an appeal under s.97 of the Environmental Planning and Assessment Act 1979 against the decision of the Respondent to refuse development consent to an application to continue to use as a refreshment room/milkbar the first floor level of a 3 storey commercial building known as No. 245 Marrickville Road, Marrickville.

The appeal is limited to questions of law. The Appellant contends that the Assessor's judgment reveals error of law -

(i) in holding that the "Marrickville Development Control Plan No. 3" operated in the nature of a development standard reflecting the Council's policy on the matter of the location of refreshment rooms and accordingly was relevant to the determination of the development application;

(ii) in holding that the past history (involving an unlawful activity) was a relevant circumstance in the determination of the development application; and

(iii) in holding that the development application was a sham.

It is convenient to deal separately with each of these alleged errors of law.

(i) Development Control Plan No. 3

The Plan purports to be a development control plan made pursuant to s.72 of the Environmental Planning and Assessment Act 1979. Clause 6.1 of the Plan restricts the location of "refreshment rooms" to the ground floor of buildings.

Clause 3.0 of the Plan contains the aims and objectives including the following:-

"(iii) to implement a policy for the control of such uses and to control related activities, such as gaming, gambling and the playing of amusement machines, pool, snooker or billiards from within."

Clause 11 contains specific restrictions or prohibitions on certain activities in refreshment rooms, eg. amusement machines, club activities, gaming and gambling, intoxicating liquor.

Mr. Lawlor, an Assistant Town Planner employed by the Council in the course of his evidence commenting on the Plan referred to the "Council's concern about unauthorised activities such as illegal gambling and prostitution which have occurred in a number of premises in the municipality, generally being first and second floors of such establishments ........ It is felt that these activities more easily flourish away from the ground floor of commercial premises as these areas are not immediately visible and not as easily policed with entry often being restricted".

Before the Assessor on this aspect of the case the principal issue debated concerned the effect and validity of the Development Control Plan.

The Respondent had submitted that the legal effect of the Plan was to prohibit absolutely the proposed development.

The Assessor rejected this submission. In my opinion he was clearly correct in so doing. The provisions of a development control plan only operate as one of the discretionary factors required by s.90 to be taken into consideration in determining a development application: s.90(1)(a)(iv).

The Respondent's alternative submission was that the Plan should be regarded as a statement of the Council's Policy on the location of refreshment rooms. It was submitted that it should be treated like a Council Code.

The Applicant submitted that the Plan was invalid to the extent that it absolutely prohibited the establishment of refreshment rooms on other than ground floors of buildings and was therefore inconsistent with the provisions of the Marrickville Planning Scheme Ordinance which permitted with development consent the establishment of refreshment rooms without restriction in buildings located within the General Business 3(a) Zone (being the relevant zoning of the subject building). It was submitted that the Development Control Plan did not "generally conform to the provisions of the local environmental plan" as it was required to do by s.72(3) of the Environmental Planning and Assessment Act and was pro tanto invalid.

The Assessor dealt with the Applicant's submission in the following passages at pp.4 and 5 of his judgment:-

"As set out in section 72 of the Act, (The Environmental Planning and Assessment Act) the purpose of a development control plan is to provide more detailed provisions than are contained in the relevant planning instrument. Such plans shall "generally conform" to the relevant planning instrument that applies to the subject land. If the D.C.P., attempted to totally prohibit the use of all floors of the subject building for refreshment room purposes, then clearly it would be in conflict with the scheme ordinance and be invalid, at least as far as the attempted total prohibition is concerned. However the D.C.P. does not totally prohibit the use of the building as a refreshment room but merely attempts to control the location of a refreshment room use within the building, in like fashion as a development standard and perhaps it could be looked at in such a manner.

For instance if the D.C.P. applied a height limit on the subject site, such that a building could not be erected upon it in excess of one storey in height, that restriction would not be in conflict with the scheme ordinance in so far as the use of the land was involved. It may of course be in conflict with other sections of the scheme ordinance. Such a valid provision on vacant land within the same zone would confine refreshment room use to ground floor level simply by preventing the erection of a building exceeding one storey. Likewise it could be imagined that a D.C.P. could provide that the maximum number of storeys that could be erected on a site would be three but that any proposed usage of the site as a refreshment room would have to be confined to the ground floor level of any such building. Such provisions would not in my view be in conflict with a planning instrument which allowed the site to be used for the purpose of a refreshment room only with the consent of the council.

Nevertheless, for the purpose of determining this appeal, I intend to interpret the D.C.P. as not being an absolute legal barrier to the issue of the consent sought, but as being of the nature of a development standard sought by the Council to be not set aside and to be a reflection of the Council's policy on the matter of the location of refreshment rooms and which policy has been developed from Council's experience of such uses over the years."

It is tolerably clear from these passages that the Assessor rejected the Applicant's submission that the Plan was invalid. It is not so clear how precisely he took the content of the Plan into consideration in exercising his function under s.90 of the Environmental Planning and Assessment Act, however the weight he accorded the Plan was a matter exclusively for his judgment, being a question of fact.

In his conclusions at p.13 he states (referring to the development proposal):-

"If permitted to establish with consent it would, due to its location and layout, not be a simple matter for Council or others to supervise."

His ultimate conclusion at p.13 is:-

"Having regard to all the circumstances as outlined it is thought that the first floor of the subject building is not suitable for the refreshment room use proposed."

Three questions arise concerning the Assessor's decision on this point - firstly was he in error in upholding the validity of the Plan, secondly assuming that he so erred was he in error in regarding cl.6.1 of the Plan as operating in the nature of a development standard and as reflecting the Council's Policy on the location of refreshment rooms, and thirdly assuming the presence of legal error does it vitiate the Assessor's decision.

In my opinion cl.6.1 of the Development Control Plan is ultra vires s.72 in as much as it does not "generally conform" to the provisions of the relevant local environmental plan (which the parties have assumed the Marrickville Planning Scheme Ordinance to be), which in the General Business (3(a)) zone provides for (see cll.23 and 24) the erection and use of buildings for the purposes of "refreshment rooms" (defined by cl.4(1) to mean 'restaurant, cafe, tea room, eating-house or the like'") with the consent of the Council.

Where the provisions of the local environmental plan allow, with development consent, refreshment rooms to be developed in buildings without spatial or locational limitation (as in the present case) a development control plan that absolutely prohibits the establishment or use of a refreshment room other than on the ground floor of a building cannot be reasonably regarded as "generally conforming" to the provisions of that local plan. The requirement to "generally conform" confers a deliberate degree of lattitude from absolute conformity. I take the meaning of "generally" to be "for the most part, extensively" or"in a general sense or way opposed to specially" (The Shorter Oxford Dictionary). The concept of "general conformity" is not foreign to the town planning context (eg s.11(9) of the English Town and Country Planning Act 1971 requires a local plan to "conform generally to the structure plan"). In the present context the nature of the content of the development control plan designed to "provide more detai

ls than are contained in a local environmental plan" (s.72(1)) suggests that the deliberate degree of lattitude conferred is intended to accommodate the phenomenon of "detailed or particular planning" as opposed to "general planning". So understood I do not think it can be said of cl.6.1 of the Development Control Plan that by absolutely forbidding the establishment of refreshment rooms other than on the ground floors of buildings that it generally conforms to the local plan that imposes no spatial or locational restrictions on the establishment of refreshment rooms in buildings situate in Business Zones which generally contain more than 1 floor. The prohibition contained in the Development Control Plan exceeds the limits of providing details for refreshment room development generally permissible in the Business Zones under the local environmental plan.

A similar question arose in Willoughby Municipal Council v. Manchil Pty. Ltd (1974) 29 LGRA 303 where Samuels J. had to consider whether the Chatswood Centre Study was "a detailed plan or design" within cl.32(e) of the Willoughby Planning Scheme Ordinance. His Honour at p.309 stated:-

"It seems to me that the detailed plan or design contemplated by cl.32(e) is intended to be one which is controlled by and illustrates the existing planning scheme. A plan which illustrated graphically a development which was contrary to the provisions of the scheme would not in my opinion fall within the terms of cl.32(e). The observations of the Judicial Committee in Boland v. Canadian National Railway Company (1927) AC 198 at p.210) are here in point."

In that case there was no definition of a "detailed plan or design" and there was no statutory limitation on the content of such a plan or design. His Honour's qualification or limitation (which I have underlined in the passage cited) concerning the relationship between the detailed plan or design on the one hand and the planning scheme on the other hand, is in my respectful opinion apposite to the interpretation of the statutory limitation on the content of a development control plan imposed by the words "generally conform" in s.72(3) of the Environmental Planning and Assessment Act.

In the present case the provisions of cl.6.1 of the Development Control Plan are neither controlled by nor illustrative of the relevant provisions of the Marrickville Planning Scheme Ordinance concerning the establishment of refreshment rooms in the General Business Zone.

Accordingly the Assessor erred in up-upholding the validity of cl.6.1 of the Development Control Plan.

Despite its invalidity as a provision of a development control plan was the Assessor nonetheless entitled to regard cl.6.1 as "a reflection of the Council's policy" on the question of the location of refreshment rooms?

This question was not directly argued before the Assessor or indeed before me, for the apparent reason that the parties proceeded on the assumption that a finding of invalidity completely disposed of the issue. In Manchil although the Chatswood Centre Study was held not to be a "detailed plan or design" within the statutory expression it nonetheless was held as a result of concession by the Respondent, to be a relevant consideration "as a circumstance of the case and the public interest" see pp.309/310.

I do not think that the rationale for a concession such as was made in Manchil is applicable in the instant case, so as to render the content of cl.6.1, despite its invalidity as a provision of a development control plan, a relevant consideration "as a circumstance of the case" or as a "matter of public interest" (see s.90(1)(q) and (r) of the Environmental Planning and Assessment Act). If the reason for the invalidity of cl.6.1 as a provision of the development control plan is its impermissible degree or element of non-conformity or dis-conformity with the relevant provisions of the local environmental plan it is difficult to appreciate how that same degree or element of non-conformity or dis-conformity can be tolerated within the regime of s.90 of the Environmental Planning and Assessment Act "as a circumstance of the case" or "in the public interest". If the Council wishes to effectively implement its policy under the Environmental Planning and Assessment Act it can do so by taking appropriate action under

Part III of that Act (ie by preparing an amendment to its local environmental plan).

Accordingly the Assessor fell into legal error in regarding cl.6.1 of the Development Control Plan as being relevant to the determination of the development application as "a reflection of the Council's policy" or as a type of "development standard".

The remaining question is whether the legal error vitiates the Assessor's ultimate decision. An error of law will only vitiate the decision of the Assessor if it has "materially affected" the decision. In Barmuncol Pty. Ltd. v. Maroochy Shire Council (1983) 50 LGRA 309 Shepherdson J. at pp.313/314 defined "vitiating legal error" as error which is "fundamental" or "vital" to the basis of the decision in question.

A similar principle has been developed in the field of administrative law in cases where irrelevant considerations have been taken into account in administrative decisions: see Minister for Aboriginal Affairs v. Peko-Wallsend Ltd. (1986) 66 ALR 299 at p.309 per Mason J.

De Smith's "Judicial Review of Administrative Action" 4th ed. p.340 states the following principle:-

"If the influence of irrelevant factors is established, it does not appear to be necessary to prove that they were the sole or dominant influence; it seems to be enough to prove that their influence was substantial."

Speaking of a section conferring a right of appeal to the Supreme Court from "a decision of the Local Government Appeals Tribunal on a question of law" Sheppard J. in Miller v. Gunnedah Municipal Council (1978) 35 LGRA 378 at p.383 held that the question of law "must be a question upon which the ultimate decision depends".

As I have earlier stated the precise influence of the content of cl.6.1 on the Assessor's ultimate decision to dismiss the appeal is not readily discerned. However I do think it clear that his conclusion "having regard to all the circumstances as outlined ......... that the first floor of the subject building is not suitable for the refreshment room use proposed" involved, at least as one relevant circumstance, the influence of cl.6.1. To that extent it is possible to say (at least provisionally) that the legal error is vitiating in the present case. However an ultimate conclusion must be postponed until I have considered the other grounds of appeal for it is possible that the Assessor's ultimate decision is legally sustainable notwithstanding the legal error involved in considering the influence of cl.6.1. One practical way of determining the matter is to ask the question -

If the influence of cl.6.1 is excluded from the range of "all the circumstances" considered by the Assessor in reaching his ultimate decision is that decision otherwise sustainable?

An affirmative answer will indicate that the legal error is not vitiating.

(ii) Is the past history of the use of the subject premises

a relevant circumstance?

The Assessor's judgment deals with this question in the following passage at pp.12/13:-

"Whilst the application cannot be damned by an unsatisfactory prehistory, the Court does not have to be so naive as to ignore the previous relevant misuse of the subject premises. Such history of misuse is a circumstance of the case. That unsatisfactory history is particularly relevant in circumstances such as in the subject use, where the use for which consent is now being sought, is knowingly being carried out in breach of the Planning Law, being so carried out without the Council's consent."

The Appellant relying on the judgment of King CJ. of the Supreme Court of South Australia in Kouflidis v. City of Salisbury (1982) 49 LGRA 17 submitted that the Assessor erred in regarding the past user of the subject premises as a relevant consideration in his determination of the development application.

In Kouflidis one of the important questions canvassed before the Full Court concerned "the effect on this application and appeal of the unlawful carrying on by the appellants of the very use of the land for which they now seek consent" (p.18).

King CJ. in the course of his judgment expresses the following opinions on this question:-

"In my opinion, moreover, the past unlawful use is not a relevant factor in determining whether consent should be granted. That decision should be made upon the planning considerations envisaged by the Act and regulations irrespective of the past or continuing conduct of the applicant." (p.19)

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"The learned judge in the Land and Valuation Court was rightly concerned with the activities of a person "who, cynically and fraudulently, changes the use of his or her land, and who hopes, by doing so, to present planning authorities with a fait accompli, and thus to extract a planning consent to the changed use". His Honour posed the question: "How should such a person fare when his or her application comes to be considered at the administrative and judicial level?" The answer, it seems to me, is that the unlawful use should be ignored. It does not enter into the planning considerations upon which the planning decision must be made." (pp.19/20)

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"Although an applicant for consent should derive no advantage, direct or indirect, from the unlawful use, I do not think that it should be an impediment to the consideration of his application on its planning merits. If on the merits a planning consent should be given, it is desirable in the public interest that it should be given irrespective of the past conduct of the applicant. It is desirable that the position should be regularized leaving the past unlawful conduct to be punished by penal sanctions." (p.20)

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"I think that the most expedient course, and that indicated by the Act and regulations, is for the administrative authorities and the courts to deal with the planning application on its planning merits, ignoring any arguments based directly or indirectly upon unlawful use and leaving the punishment of the unlawful conduct to penal proceedings." (p.20)

The "misuse of the subject premises" referred to by the Assessor appears to be a reference to a matter contained in Mr. Lawlor's statement of evidence outlining the history of the use of the first and second floors of the subject premises. Mr. Lawlor's statement of evidence includes the following:-

"The matter was considered again by Council at a meeting of 1st June, 1982, when it was resolved that legal proceedings be instituted against the owners and occupiers of the premises for operating the first and second floors of the premises for the purpose of refreshment rooms without Council's consent. It was also noted that gambling was taking place on the premises. Correspondence was directed to Council's Solicitors and the Newtown Police Department concerning the viability of Council instituting appropriate court proceedings in order to overcome the use and occupation of the third floor of the premises for illegal purposes.

A reply of 27th August, 1982, from Assistant Commissioner included details of the arrest of 24 persons in January and March 1982, for the conducting and playing of unlawful games on the first floor of the premises.

A report of 4th August, 1983, of a private investigator noted that on 16th July, 1983, that the first floor appeared to be used as a club. He was informed that the second floor was only open to members of the club."

In regarding the history of misuse of the subject premises as a relevant circumstance of the case I do not think the Assessor has fallen into error in this case based upon its own special facts, although I do not think the Assessor was correct when he stated that that history was "particularly relevant" because the refreshment room use was conducted in breach of the planning law.

Evidence of the history of the use of the subject premises and of the use of the second floor premises was given by Mr. Lawlor without objection. It appears that its relevance was principally directed to the allegation by the Respondent that the development application was a sham. Since the question whether a development application is a sham is a question of fact (Gray v. Fairfield City Council (unreported 27th November, 1987 per the Chief Judge) the evidence was admissible on this issue.

However in view of the Assessor's rejection at p.13 of his judgment of the Respondent's claim that the development application was a sham (in the sense contended for by the Respondent) it is necessary to find some other basis for the Assessor's conclusion that the prior misuse of the premises was a relevant consideration.

The Assessor in his judgment noted on a number of occasions that there was a paucity of evidence adduced in the Applicant's case. He held, as he was entitled (as a question of fact) to hold, that the only witness called in the Applicant's case had limited knowledge of the development proposal. Again as a question of fact the Assessor was entitled to regard "as a considerable omission" the failure to give evidence by the owner or lessee of the subject premises. It is against these somewhat special features of the case that the attack on the Assessor's decision to regard the history of prior use (including misuse) of the subject premises as a relevant circumstance must be judged. So considered I think that the Assessor was reasoning along the following lines. Here is an application to continue a refreshment room use of the subject premises which has been operating for some 7 years without development consent with no material change in the identity of the owner or lessee of the subject premises and where there i

s evidence (not rebutted) of the use of the subject premises on at least one occasion for illegal gambling.

In these circumstances the prior misuse (by illegal gambling) of the subject premises (used as a refreshment room) might conceivably be relevant to the question of the continuance of the same refreshment room use, although it would appear from Mr. Lawlor's evidence that the lessee at the time of the illegal gambling incident has ceased to be the lessee of the subject premises. The weight to be given to that incident would need to reflect the fact that the incident occurred more than 5 years ago and the fact that the refreshment room had been operating for 7 years.

Seen in this light the Assessor was entitled as a matter of fact to have regard to the prior misuse of the subject premises as relevant to the question whether development consent should be granted to the continuance of the refreshment room use. Such an approach involves no error of law. The facts of the instant case involving misuse of the premises in apparent breach of Gaming laws are clearly distinguishable from the facts in Kouflidis. Nonetheless as I have mentioned the Assessor was wrong to regard the misuse as being "particularly relevant" because of the absence of development consent to the refreshment room use of the subject premises. On this aspect only of the Assessor's conclusion Kouflidis is applicable.

(iii) The finding that the development application

was a sham

The Assessor's judgment deals with this matter in the following passages at p.13:-

"The proposal is not one for a refreshment room operating to provide a variety of meals and refreshments to the general public. Clearly it has attracted in the past and appears to be intended to continue to attract patronage from one particular ethnic group. Little refreshments are available, but there is an abundance of tables and chairs suitable for the playing of harmless games such as cards, snakes and ladders, etc. It would also be easy to go one step further to incorporate less innocent games. If permitted to establish with consent it would, due to its location and layout, not be a simple matter for Council or for others to supervise.

In the sense that the activity is in the nature of a psuedo club rather than a public restaurant, the application may have, as Council has submitted, an element of sham. This is not to suggest that a social club, ethnic or otherwise, is not a desirable activity, but this does not purport to be a social club or the like, it is presented as a refreshment room, and to that extent the application appears to be partly at least, a sham."

Earlier the Assessor at p.12 after describing the physical layout of the subject premises and the nature of its clientele had stated:-

"That in my view categorises the proposed use as a psuedo club, or meeting place, for people of a particular culture to socialise, with the availability of refreshment as an ancillary activity."

The question of the development application being a sham was raised by the Respondent in opening its case (it had not been a ground for the Respondent's determination refusing development consent).

The Solicitor appearing for the Respondent in his opening stated that the application was "in reality an adjunct to a use of the second floor of the premises .......... it is really designed in effect to be an ante-room to the of the second floor of the premises which has from time to time been a brothel".

This opening submission was not supported by evidence other than the aforesaid historical summary found in Mr. Lawlor's statement of evidence of the use of the 1st and 2nd floors of the subject premises and Mr. Lawlor's own opinion:-

"In view of the circumstances, the past record of the usage of the premises and the layout of the area, it is considered that the subject part of the building would invariably be used for purposes other than that specified on the development application."

In his final address the Solicitor for the Respondent considerably retreated from his opening submission that the application was a sham, instead urging the Court to adopt "a healthy sketicism, at the very least, about what is to be done with these premises in reality".

The Assessor at p.12 accepts the submission made on behalf of the Applicant "that there is no evidence to establish any intention to use the proposed refreshment room in association with the future use of the second floor for any purpose of any kind, legally or otherwise".

The Appellant submits that there is no basis for the Assessor's conclusion that the development application was a sham or alternatively if there is a basis it itself reveals legal error and involves an essential misdirection as to the question of fact he was called upon to answer.

Reference was made to the decision of McClelland CJ. in Dennis v. Parramatta City Council (1981) 43 LGRA 71 where it was held on the facts of that case that the Court was entitled to look behind the words of the development application to the real use intended by the applicant. In that case the development application referred to the proposed development as "a health and beauty salon". However the evidence established that the subject premises had been used by the applicant as recently as a few days before the Court hearing as a brothel. At p.74 the Chief Judge states:-

"............ However, "the circumstances of the case" which must be taken into consideration by the Council and the Court include the proven fact that the applicant has, until quite recently, used the premises as a brothel and that he did not see fit to give evidence as to his future intentions or to rebut the overwhelming inference that the proposed use in his development application is a sham and that he intends to continue to put the premises to use as a brothel."

In Sydney City Council v. Hurzeler (1981) 46 LGRA 240 a development application sought consent for use of premises as "a health studio". Cripps J. at p.242 found that "the premises have been used for the purpose of prostitution" .......... and that "it is intended in the future that the premises will be used for this purpose and that the application before the Court is a sham. I have no doubt that if permission were given to Mrs. H. to use these premises for the purpose of a health studio she would use them as a brothel."

At p.243 His Honour concludes:-

"It is no doubt true that consent would not be withheld merely because the premises the subject of the application might be used illegally but a council, and hence a court, is, in my opinion, entitled to refuse an application which in its view is a sham: see Dennis v. Parramatta City Council (1981) 43 LGRA 71 and Sutton v. Waverley Municipal Council (1949) 17 LGR (NSW) 162."

(The facts of the present case are far removed from the facts in these two cases).

It appears that the Assessor's conclusion that the development application was "partly at least, a sham" derives exclusively from his opinion that the proposed use was "a pseudo club, or meeting place for people of a particular culture to socialise, with the availability of refreshments as an ancillary activity" (p.12).

It is important to note in relation to that opinion that neither of the parties made any submission to that effect or were invited to address the question. In the course of Mr. Gearie's testimony the Assessor had asked:-

"Q. Is it a sort of club rather than a restaurant. I just can't imagine why people living around there would not cook their own meals at home if they are old people. Why would they come down every day to buy meals and have a coffee?

A. They don't specifically buy a lot of food there, they sit there and talk-over coffee. Being an inspector in that area for a long time it is a similar type of situation - you have a Turkish community that would do the same, they just go to the premises and sit and talk.

Q. Is it a pseudo club?

A. I don't think it is a specific club. I mean it is not a membership required.

Q. But is it a pseudo club, acting as a club although it is not?

A. No I don't think that is, it is open to the public ................"

The Assessor's opinion that the proposal was a "pseudo club" appears to have been founded upon a misunderstanding of the statutory definition of "refreshment room" (meaning "a restaurant, cafe, tea room, eating-house or the like"). This misunderstanding is evidenced in the first of the two passages I have cited from p.13 of the judgment.

In my opinion it was not open to the Assessor to find that the development was not a "refreshment room". The following summary of his findings on the nature of the development proposal taken from p.12 of his judgment in my opinion is only capable of one conclusion, namely that on the primary facts the use was a "refreshment room" use according to the statutory definition (cf. Hope v. Bathurst City Council (1980) 144 CLR 1 and Azzopardi v. Tasman U.E.B. industries Ltd. (1985) 4 NSWLR 139):-

"Thus the purported refreshment rooms are such as to be separated into 2 separately enclosed main sections, one of which is to have a further separate enclosure. Coffee or soft drinks only is available in one section, and sandwiches and perhaps some other such cold snacks are available only in the other. There are no cooking facilities on the relevant section of the premises and no facilities for staff. Approximately 95%, which for all practical purposes is the entire clientele, is of one particular ethnic background, the majority of whom in the daylight hours, are regular attenders on a daily basis. Whilst the meals available appear to be limited and of the nature of snacks, there is an abundance of tables and chairs for the patrons to while away the days."

It follows in my opinion that the Assessor fell into legal error in holding that the development proposal was not a "refreshment room" and in further holding the development application to be a sham.

CONCLUSION

In my opinion the Appellant has successfully demonstrated that the Assessor fell into legal error in relation to the development control plan and in relation to the development application being a sham.

The question remains whether these errors have materially affected his ultimate decision. In this respect I think that the only reasonable conclusion available on a fair reading of the judgment is that they have done so.

Accordingly the appeal is upheld and I make the following orders:-

1. Appeal upheld.

2. Decision of the Assessor to dismiss the appeal set aside.

3. Matter to be remitted to the Assessor for further decision in accordance with my determinations of the questions of law.

4. Respondent to pay the Appellant's costs of the appeal.