Iman Husain Pty Ltd v Canterbury City Council

[1999] NSWLEC 178

Land and Environment Court

of New South Wales

CITATION:	Iman Husain Pty Ltd v Canterbury City Council [1999] NSWLEC 178
PARTIES	APPLICANT Iman Husain Pty Ltd
RESPONDENT Canterbury City Council
NUMBER:	10777 and 10778 of 1998
CORAM:	Lloyd J
KEY ISSUES:	Question of Law :- classification of use - not a question of law
LEGISLATION CITED:	Land & Environment Court Act 1979 s 36(5) and s 36(6)
DATES OF HEARING:	06/30/1999
DATE OF JUDGMENT DELIVERY:	08/09/1999
LEGAL REPRESENTATIVES:	APPLICANT Mr J J Bingham (Solicitor) SOLICITORS Deacons Graham & James RESPONDENT Mr D Officer QC AND Mr J A Ayling (Barrister) SOLICITORS Pike Pike & Fenwick

JUDGMENT:

IN THE LAND AND Matter Nos: 10777/10778 of 1998

ENVIRONMENT COURT Coram: Lloyd J

OF NEW SOUTH WALES Decision date: 9 August 1999

IMAN HUSSAIN LIMITED

Applicant

v

CANTERBURY CITY COUNCIL

Respondent

JUDGMENT

Background

1. On 3, 4 and 5 May 1999 a Commissioner of the Court heard an appeal under the Environmental Planning & Assessment Act 1979 against the respondent’s refusal of a development application for a development described as an Islamic centre. The matter comes before me for the determination of a question of law referred by the Commissioner of his own motion pursuant to s 36(5) of the Land & Environment Court Act 1979 (“ the Court Act ”). The question posed by the Commissioner is:

Whether or not the proposed use as a cultural centre is permissible within the 2(a) zone under the Land Use Table to clause 22 of the CPSO, having regard to the definitions under clause 4 of the CPSO.

(The reference to the CPSO is a reference to the Canterbury Planning Scheme Ordinance, being the relevant environmental planning instrument).

2. The proposed development involved the use of an existing building formerly known as the Earlwood Sports Centre and used as a squash and fitness centre. The proposed development will provide religious, cultural, educational, welfare, medical and recreational services to the Sydney Islamic community. The applicant is a public company limited by guarantee. The 14 objects of the company are aimed at educating the Islamic community and mainly the Shiite community. It is intended, inter alia, to bridge the gap between Islamic parents usually born overseas and their children usually born in Australia. Activities to be conducted will include part time courses in Persian and Arabic languages, part time courses for Islamic education in Persian language, sport and art activities for youth, general gatherings of Iranian Muslims in a limited form of occasional worship, the provision of library and publishing facilities, the provision of a local radio station for on-air transmissions and an area for computers for a home page for Islamic education.

3. The land is within a Residential 2(a) zone under the Canterbury Planning Scheme Ordinance. “Dwelling houses” and “vehicle parking” are the only uses that may be carried out without consent in the zone. “ Clubs ”, “ commercial premises ” and “ recreation facilities ” are uses that are expressly prohibited in the zone. All other uses are permissible with development consent. These include “ places of public worship ” and “ educational establishments ” as defined in the ordinance, together with any other innominate use.

4. The ordinance contains the following relevant definitions:

‘Club’ means a building used or intended for use by persons associated, or by a body incorporated, for social, literary, political, sporting, athletic or other lawful purpose whether of the same or of a different kind and whether or not the whole or part of such building is the premises of a club registered under Part X of the Liquor Act, 1912 .

‘Recreation facility’ means a building or place used for sporting activities, recreation or leisure activities, whether or not operated for the purpose of gain, but does not include a building or place elsewhere defined in this clause.

‘Educational establishment’ means a building used or intended for use as a school, college, technical college, academy, lecture hall, gallery or museum, but does not include a building used or intended for use wholly or principally as an institution.

‘Place of public worship” means a church, chapel or other place of public worship or religious instruction or place used for the purpose of religious training.

5. The Commissioner makes the following statements in his decision:

During the hearing the representatives of the parties were reluctant for the Commissioner to refer the matter as a question of law to the Chief Judge of the Court, and were content for it to be decided on the ‘facts’ .

Having carefully weighed the evidence and considered the submissions on this point, I am of the opinion that the proposed use may well be characterised either as a ‘club’ or an ‘educational establishment’ , or other innominate use and thus may be either prohibited or permissible or both, under the CPSO.

Submissions of the Parties

6. Mr J J Bingham, who appears for the applicant, submits that the question as posed by the Commissioner provides the answer to the question. The question as posed by the Commissioner is whether the proposed use “ as a cultural centre ” is permissible within the relevant zone. The term “ cultural centre ” is not defined. This is an innominate use and is thus permissible in the zone.

7. Mr Bingham refers, alternatively, to the Commissioner’s findings as follows: “ I am of the opinion that the proposed use may well be characterised either as a ‘club’ or an ‘educational establishment’ , or other innominate use and thus may be either prohibited or permissible or both, under the CPSO ”. In Mr Bingham’s submission, this statement shows that the Commissioner has formed the opinion that three determinations of fact described by him are open to him, namely that the use may be categorised as either a club, as an educational establishment or as some other innominate use (such as a cultural centre). No such determination of fact, however, has yet been made by the Commissioner. He has merely indicated what findings of fact “ may well be ” open to him. The question of categorisation of the proposed use where the evidence before the Commissioner may reasonably admit to more than one conclusion is a question of fact for the Commissioner and no question of law is involved. (He referred to Londish v Knox Grammar School (1997) 97 LGERA 1). The matter should be referred back to the Commissioner with a direction that no question of law arises and that it is within his discretion for him to determine, as a question of fact, the correct categorisation of the proposed use.

8. Further alternatively, Mr Bingham submits that if the Court does not accept the abovementioned submissions, then it is not reasonably open to the Commissioner to make a finding on the evidence that the proposed use falls within the definition of “ club ”. The definition of club does not include persons associated for educational, cultural or religious purposes, which are the purposes indicated here. An educational establishment, a place of public worship or a cultural centre are not within the definition of a club.

9. Mr D P F Officer QC, who (with Mr J A Ayling) appears for the respondent, submits that the question whether a particular purpose of use falls within or outside a particular statutory definition is self-evidently one of fact. In the present case the determinative question is whether the proposed use is for a club, because if the answer is in the affirmative then it is a prohibited use notwithstanding that it may also be categorised as another (permissible) use such as an educational establishment (he referred to Egan v Hawkesbury City Council (1993) 79 LGERA 321).

10. As already observed, Mr Officer submits that the question of categorisation of use in this case, namely whether the proposed use is for a “club”, is wholly a question of fact. Mr Officer nevertheless submits alternatively that the proposal is clearly for a club as defined and that no other conclusion is reasonably open (he referred to Baulkham Hills Shire Council v Australian Kafarsgham (Lebanese) AssociationLtd (1994) 83 LGERA 108).

Conclusion

11. In Londish v Knox Grammar School Stein JA (with whom Mason P and Meagher JA agreed) said (at 7):

It is a question of law whether the primary facts can necessarily fit the statutory description: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139. However, whether facts fall within the meaning of an ordinary expression, such as ‘educational establishment’ as a matter of common understanding, is a question of fact. Although more than one conclusion might reasonably have been reached by a decisionmaker, an incorrect finding will not involve an error of law: see Hope v Bathurst City Council (1980) 144 CLR 1. In such cases, it is not for the court to substitute its own opinion for that of the primary decision maker: Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24.

12. The principle explained by Stein JA has been expressed in similar terms in many cases. For example, in Randwick Municipal Council v Manousaki (1988) 66 LGRA 330, Clarke JA (with whom Hope and McHugh JJA agreed) expressed the principle as follows (at 333):

The question whether the primary facts could reasonably be found to fall within a statutory description is one of law; if they could the question whether they in fact did fall within that description is one of fact.

(For other statements of the same principle see Hope v Bathurst City Council (1980) 144 CLR 1 at 7-9, Franceschini v Melbourne and Metropolitan Board of Works (1980) 57 LGRA 284, Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156, Dell v Dalton (1991) 23 NSWLR 528 at 533 and Selim v Parramatta City Council , Talbot J, 8 October 1998, unreported).

13. As long ago as 1940, Jordan CJ in The Australian Gas Light Co. v The Valuer-General (1940) 40 SR 126 usefully set out the following rules on the question (at 137-138):

(1) The question of what is the meaning of an ordinary English word or phrase as used in a statute is one of fact not of law; although the meaning of a technical legal term is a question of law.

(2) The question whether a particular set of facts comes within the description of such a word or phrase is one of fact.

(3) A finding of fact by the tribunal of fact cannot be disturbed if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its finding, and there is evidence capable of supporting its inferences.

(4) Such a finding can be disturbed only (a) if there is no evidence to support its inferences, or (b) if the facts inferred by it and supported by evidence are incapable of justifying the finding of fact based on those inferences. Thus, if the facts inferred by the tribunal from the evidence before it are necessarily within the description of a word or phrase in a statue or necessarily outside that description, a contrary decision is wrong in law. If, however, the facts so inferred are capable of being regarded as either within or without the description, according to the relative significance attached to them, a decision either way would not involve a question of law.

(The present case is not concerned with the meaning of a technical legal term it is concerned with whether the facts found necessarily come within such a term, or within some non-legal term such as “cultural centre”.)

14. What is within or outside a defined purpose will often depend upon question of fact and degree. No question of law arises, unless it can be said that a particular purpose could not reasonably come within a defined description. In the present case the Commissioner made a finding that the proposed use may well be characterised either as a club, or an educational establishment or as some other innominate use (such as a cultural centre). Each conclusion is one which is reasonably possible on the facts of this case. The determination of the question is solely one of fact. It is a question of fact which could only be disturbed if a decision contrary to the view of the Commissioner is, on any reasonable view, the only possible decision on the evidence.

15. I thus conclude that the question referred by the Commissioner is solely a question of fact. Both Mr Bingham and Mr Officer agreed that the question was one of fact and neither sought to argue to the contrary. This conclusion raises the further question of what to do now.

16. The question was referred to me for determination under s 36(5) of the Court Act. Sub-section 36(6) requires me to determine the question and then remit the determination to the Commissioner. Since the question is not one of law I need do nothing other than so hold. It seems that since the question is not a question of law I do not have the power to determine it myself. That task has been committed to the Commissioner for determination. I cannot assume a power which I do not otherwise have ( Coombwood Pty Ltd v Baulkham Hills Shire Council (1995) 86 LGERA 319 at 322). Neither can jurisdiction be conferred by consent (re Wakim; ex parte McNally (1999) 73 ALJR 839).

17. I therefore make the following order:

The question, not being a question of law, is remitted to the Commissioner for determination.