Markev Pty Limited v Sutherland Shire Council

[2003] NSWLEC 138

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Reported Decision: 126 LGERA 299

Land and Environment Court

of New South Wales

CITATION:	Markev Pty Limited v Sutherland Shire Council [2003] NSWLEC 138
PARTIES:	APPLICANT: Markev Pty Limited RESPONDENT: Sutherland Shire Council
FILE NUMBER(S):	10139 of 2003
CORAM:	Bignold J
KEY ISSUES:	Question of Law :- whether development permissible in terms of LEP-meaning of "residential flats only in building subject to another permitted use"
LEGISLATION CITED:	Sutherland Shire Local Environmental Plan 2000
CASES CITED:	Canterbury Municipal Council v Wallspace Advertising (Australia) Pty Ltd (1982) 47 LGRA 135 at 138; Food Plus Pty Ltd v Warringah Shire Council (1983) 50 LGRA 76; Solicitor General v Foodbarn Pty Ltd (1975) 32 LGRA 157; Warringah Shire Council v Caltex Oil (Aust) Pty Ltd (1989) 68 LGRA 206; Warringah Shire Council v Raffles (1978) 38 LGRA 306
DATES OF HEARING:	03/06/2003
DATE OF JUDGMENT:	06/12/2003
LEGAL REPRESENTATIVES:	APPLICANT: Mr G Newport, Barrister SOLICITORS Payne Pacific Real Estate (Agent) RESPONDENT: Mr J Cole, Solicitor SOLICITORS Abbott Tout

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Matter No . . 10139 of 2003

Coram : Bignold J

12 June 2003

MARKEV PTY LIMITED

Applicant

v

SUTHERLAND SHIRE COUNCIL

Respondent

JUDGMENT

A. INTRODUCTION

1. In pending class 1 proceedings involving an appeal pursuant to the Environmental Planning and Assessment Act 1979, s 97 (the EP&A Act), the Respondent (the Council) has raised for preliminary determination the question of law as to whether the development proposed in the Applicant’s development application, the subject of the appeal, is a permissible development in terms of the Sutherland Shire Local Environmental Plan 2000 (the LEP).

2. As will be presently be shown, the LEP includes within the General Business Zone No 3(a) the land to which the development application relates (namely lots 1 to 4 and lot 6 in Deposited Plan 232490 known as Nos 42/50 Station Street and No 5 Preston Avenue, Engadine “the development site”). The proposed development includes the erection of a six storey building (three levels below ground level and three levels above ground level) comprising three levels of underground carparking accommodation (some 40 per cent of which is devoted to carparking for the proposed residential flat building and 60 per cent of which is devoted to carparking for the existing hotel (“the Engadine Hotel”) erected on lot 1) and three levels above ground of residential development comprising a total of 45 residential flats. Most of the proposed development will be carried out on that part of the development site that comprises lot 6 which is physically separated from the remainder of the development site (lots 1 to 4 inclusive) by an unnamed public laneway (some 6 m wide).

3. Part 4 of the LEP contains provisions relating to the “Business Zones” created by the LEP. There are two such zones—“General Business” 3(a) and “Neighbourhood Business” 3(b).

4. Clause 47 relevantly provides in relation to the General Business 3(a) Zone the following:

What development may be allowed in each zone?

The following development control table gives the objectives of the business zones and what development is allowed or prohibited in each zone.

Development control table

Zone 3(a) General Business


1 Objectives of the zone

(a) Appropriately located for the provision of a wide range of retail, business and professional activities.
(b) Business centres with integrated public transport and pedestrian networks.
(c) Viable business centres supported by appropriate forms of residential development

2 Development allowed without development consent
Development for the purpose of drainage.

Exempt development.


3 Development that requires development consent
Ancillary development not included in item 2.

Development for the purpose of:
advertising not included in item 2,
boarding houses,
bulky goods retailing
business premises,
car parking,
child care centres,
community facilities,
convenience stores,
dwellings only in buildings subject to another permitted use,
educational establishments,
food shops,
hotels,
housing for older people or people with a disability, only in buildings subject to another permitted use
medical facilities,
motels,
motor showrooms,
nightclubs,
passenger transport terminals,
places of assembly,
places of public worship,
public transport interchanges or associated structures,
recreation areas,
recreation facilities,
registered clubs,
residential flats, only in buildings subject to another permitted use,
restaurants,
roads,
service stations,
sex shops,
shops,
utility installations, other than gas holders or generating works,
veterinary hospitals.
Demolition not included in item 2.
Subdivision.


4 Development that is prohibited
Any development other than development included in item 2 or 3.

5. The competing arguments on the question of law have been advanced upon the basis that the only possible relevant permissible development for the residential component of the proposed development is the following development referred to in Item 3 of the Development Control Table in respect of the General Business Zone No 3(a):

residential flats, only in buildings subject to another permitted use

6. This compound expression is not defined by the LEP. However, cl 5(1) of the LEP which contains a number of definitions of conventional planning purposes includes the following relevant definitions:

Residential flat means a dwelling within a building containing three or more dwellings but does not include a townhouse or villa house.

Dwelling means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate permanent residence.

7. It is common ground that the proposed development includes “residential flats” as defined by the LEP. What is in issue is whether those residential flats are relevantly “only in buildings subject to another permitted use”. (There is no significance in the plural form of “buildings”, and the singular form of that expression is also applicable.)

B. THE RELEVANT FACTS

8. Before considering the competing arguments, I should first note the relevant facts according to the Agreed Statement of Facts (Exhibit 1) as follows:

(i) The Applicant, has lodged an appeal against the Respondent’s deemed refusal of its development application for the construction of a residential flat development and associated car parking on Lots 1-4 & 6 in DP 232490 otherwise known as 42/50 Station Street and 5 Preston Avenue, Engadine ( the development site ). The development site has a total area of 5561.1 square metres.

(ii) Currently situated on Lot 1 of the subject site is the Engadine Hotel. On Lots 2 and 3 there is a liquor shop and drive-thru facility. On Lot 4 there are a number of retail shops which have street frontages to Preston Avenue. Lot 6 contains ground level car parking for the Engadine Hotel.

(iii) An unnamed laneway extends between the Old Princes Highway and Preston Avenue Engadine at the rear of the Hotel. The laneway is parallel to Station Street. Lots 1-4 are on the northern side of the laneway, Lot 6 is on the southern side.

(iv) The proposed development comprises of three major components those being:

(a) the construction of a 3 storey residential flat building upon Lot 6;
(b) the construction of 3 levels of basement car parking for the proposed residential flat building and the Engadine Hotel on Lot 6; and
(c) the construction of disabled access car parking over Lots 2, 3 and 4.

(v) The development is documented in plans of Trott Tench and Associates Limited Job No. 013071, DA01 to DA09 dated November 2002.

(vi) Lot 6 is not specified in the Hotelier’s Licence for the Engadine Hotel’s licensed premises.

(vii) The subject site is zoned 3(a) General Business under the Sutherland Shire Council LEP.

(viii) Pursuant to clause 47(1) of the LEP the objectives of zone 3(a) are:

(a) appropriately located land for the provision of a wide range of retail, business and professional activities.
(b) business centres with integrated public transport and pedestrian networks.
(c) viable business centres supported by appropriate forms of residential development

(ix) Clause 47 of the LEP defines development which is permissible in the zone with development consent. This includes car parking , hotels and residential flats only in buildings subject to another permitted use.

(x) Car parking is defined under clause 5 of the LEP as

a building or place used for parking vehicles, and any manoeuvring space and access to it, whether operated for gain or not, but does not include car parking ancillary to a permissible use.

(xi) Hotel is defined under clause 5 of the LEP to mean:

premises specified or proposed to be specified in a hotelier’s licence granted under the Liquor Act 1982, which may provide accommodation.

(xii) Residential Flat is defined under clause 5 of the LEP to mean:

a dwelling within a building containing three or more dwellings but does not include a townhouse or a villa house.

(xiii) Hotel and car parking are the only uses specified in the land use table under cl 47 which could be relevant to the issue of law, ie another permitted use .

(xiv) A number of development consents have been issued in regard to the Hotel. These include Notice of Determination 0238/94 dated 1 December 1994 described as Engadine Hotel refurbishment, additions and car parking upgrading. This consent was subsequently modified on 24 January 1996.

(xv) The land described by the 1994 consent is Lot 1 — 6 in DP232490, otherwise known as 42 — 50 Station Street & 3-5 Preston Avenue Engadine.

(xvi) Condition 1 & 10 of the 1994 consent (as modified) deal with the construction of the car park.

(xvii) Development Application No. 238/94 included drawing No. 9322-DA07 and it depicted the provision of 100 car parking spaces on Lot 6. The supporting documentation referred to that parking on Lot 6 being for the purposes of the Hotel.

(xviii) On 4 February 2003 the Applicant lodged an application pursuant to s 96(1A) to modify condition 9 of the 1994 development consent to read:

A total of 70 car parking spaces shall be provided on lot 6 for usage of hotel patrons and staff. Details shall be submitted in conjunction with a Construction Certificate and comply with Australian Standards.

The Council has not determined this application.

(xix) Council also issued development consent no. 960146 on 15 July 1996 granting development consent to vary and extend the trading house of the Engadine Hotel. The grant of development consent covers Lots 1, 2, 3 & 6 in DP 232490.

(xx) Car parking is provided on Lot 6 as part of the Hotel development consent.

C. THE COMPETING ARGUMENTS

9. The Council’s argument in support of its contention that the proposed development is for a prohibited purpose of development may be summarised as follows:

(i) In the express limitation of permissible residential flat development “only in buildings subject to another permitted use” the words “subject to” imported the requirement of “domination, control or influence” of the “other permitted use” in the overall use of the site, which requirement is not fulfilled by ancillary hotel carparking.

(ii) The proposed building could not properly be categorised as including “hotel” development because the definition of “hotel” adopted by the LEP only applies to “premises specified or proposed to be specified in a hotelier’s licence granted under the Liquor Act 1982” and the premises specified in the relevant licence granted in respect of the “Engadine Hotel” do not include lot 6 upon which the proposed new building is to be located.

(iii) The proposed carparking accommodation for the existing hotel to be provided in the proposed building cannot be properly categorised as “carparking” development as defined by the LEP because that definition, in terms, excludes “car parking ancillary to a permissible use”.

(iv) Nonetheless, the proposed hotel carparking accommodation to be provided in the proposed building is properly categorised for planning purposes as development that is “ancillary or incidental” to the existing hotel development.

(v) However, because of the express limitations in the LEP definitions of “hotel’ and “carparking” the proposed carparking component to be provided on the proposed building does not qualify as either “hotel” development or “carparking” development.

(vi) Accordingly, the proposed development is not for a permissible development because the residential flats are not “only in a building subject to another permitted use”.

(vii) The Court should not disturb the Council’s characterisation of the proposed development as not being “residential flats, only in buildings subject to another permitted use” if the Court concludes, as it would on the facts of the present case, that that result was reasonably open to the Council.

10. The Applicant’s competing argument in support of its contention that the proposed development is for a permissible purpose of development may be summarised as follows:

(i) The hotel carparking accommodation to be provided in the proposed building is properly categorised as development for the purposes of the (existing) hotel. That carparking development is relevantly ‘ancillary” to the (existing hotel) and constitutes “another permitted use” (within the proposed building in which the residential flats are incorporated).

(ii) In the alternative, if it be concluded that the hotel carparking use is not properly categorised as ancillary development to the (existing) hotel development, the carparking use is itself a permissible purpose of development.
(iii) On either of the alternate bases, the proposed hotel carparking accommodation to be provided in the proposed building is relevantly “another permitted use” of the building in which the residential flats are to be incorporated. It follows that the proposed residential component of the development is permissible development, namely “residential flats only in a building subject to another permitted use” and it further follows from the foregoing that the proposed development is relevantly for a permissible purpose of development.
D. THE PROPER CONSTRUCTION of THE PERMISSIBLE DEVELOPMENT “RESIDENTIAL FLATS, ONLY IN BUILDINGS SUBJECT TO ANOTHER PERMITTED USE”

11. The crux of the competing arguments focuses on the legal consequence, in terms of the proper construction of the LEP, of categorising the proposed hotel carparking accommodation as ancillary development to the (existing) hotel development.

12. In my opinion, there can be no doubt that that is the proper planning categorisation of that particular component of the proposed development, and in truth, the parties’ competing arguments are at this point founded on common ground.

13. The parties arguments significantly diverge on the legal consequences for the construction of the LEP (and more particularly the permissible development “residential flats only in buildings subject to another permitted use”) of that commonly accepted planning categorisation.

14. The Council argues that the consequence of such a categorisation of the hotel carparking component of the proposed development is that that component does not qualify as “another permitted use” (of the building incorporating the “residential flats”) because that use, as a matter of definition, does not fall within the scope and ambit of the only two relevant purposes of permissible development, namely “carparking” and “hotel”.

15. But the patent weakness, if not fallacy, of this argument is that it simply postulates, without any attempt to substantiate, the proposition that the resultant categorisation is of a proposed development that is not for a permissible purpose.

16. Quite apart from the operation of the well established planning law concept of “ancillary development” (which is considered below in my consideration of the planning doctrine of planning purposes), the Council’s argument simply has overlooked another purpose of permissible development appearing in Item 3 of the Development Control Table to cl 47 of the LEP as it applies to the General Business Zone 3(a) namely “ancillary development” which is defined by cl 5(1) to mean “a building, work or use which is used or carried out in conjunction with the primary legal use of a site”.

17. In the application of this defined term (constituting a permissible purpose of development within Zone 3(a)) to the present case, it is to be appreciated that the “site” is all of the land comprising lots 1 to 4 and lot 6 in Deposited Plan 232490. Clearly, on the Agreed Facts, the existing hotel and related development is the “primary legal use” of that site. Although that compound expression is not defined by the LEP, its meaning is clear and there can be no doubt on the agreed facts, that the hotel development is the primary use of the development site and that it is an approved use and hence qualifies as “the primary legal use of the site” within the LEP definition of “ancillary development”.

18. In referring to the defined term “ancillary development” as a relevant permissible purpose of development within the General Business Zone 3(a), I am conscious that the parties’ Statement of Agreed Facts includes the fact “that hotel and car parking are the only uses specified in the development control table under cl 47 which would be relevant to the issue of law”.

19. However, that is not a statement of fact. Rather, it is a conclusion of law, which although jointly shared by the parties, is clearly erroneous, and that error cannot impede or deflect the Court from its judicial task of determining the true meaning of the relevant provisions of the LEP.

20. It follows, in my judgment, that the hotel carparking accommodation to be provided in the proposed building is properly categorised as “ancillary development” for the reasons that I have given and that that categorisation relevantly constitutes “another permitted use” (of the building incorporating the residential flats) within the meaning of the permissible purpose “residential flats only in buildings subject to another permitted use”.

21. In so concluding, I would emphatically reject the Council’s argument that the expression “subject to another permitted use” requires some dominating or controlling or influencing quality to be attributed to that other permitted use. This argument places far too much strained weight on the words “subject to” in the relevant statutory expression, where in fact the more obvious and appropriate meaning of the words “subject to” is simply one that is equivalent to “being the subject of” (ie the building in which the residential flats are to be incorporated must be a building which is the subject of “another permitted use”).

22. The statutory expression, properly construed, does not require the other permitted use to be “dominant, controlling or influential” in its relationship to the “building” or to the residential flats use. Rather, it simply requires that in addition to the residential flats contained within the building there be contained “another permitted use”. The phrase “another permitted use” means a use “additional to” or “one more than” the residential flats use (cf Food Plus Pty Ltd v Warringah Shire Council (1983) 50 LGRA 76 and Warringah Shire Council v Caltex Oil (Aust) Pty Ltd (1989) 68 LGRA 206) which other or additional use is a permissible use, meaning “permissible” in terms of the LEP. (The Council’s argument properly conceded that the statutory expression would be satisfied if a development application to erect a building which included residential flats and another permissible use (eg a hotel) were approved as prospective development.)

23. Obviously, the “other permitted use” must be real and substantive as opposed to sham and notional but beyond this co-existence, there is no requirement (expressed or implied) in terms of relative spatial or density distribution between the two developments.

24. I emphasise that in applying the defined permissible purpose of “ancillary development” I regard the hotel carparking accommodation in the proposed building as being ancillary to the existing hotel use of the development site and it is this use which relevantly constitutes “another permitted use” of the building incorporating the residential flats. I emphasise this fact lest it be wrongly presumed that the carparking accommodation for the residential flats itself may constitute an “ancillary development” to the residential flats use of the building such as would satisfy the statutory expression “residential flats, only in buildings subject to another permitted use”. Clearly, a building wholly devoted to residential use by virtue of it providing residential flats and carparking for these flats would be properly categorised as “residential flats” as defined by the LEP and as such would not be for the permissible purpose of “residential flats only in buildings subject to another permitted use”, but would be a prohibited purpose development within the meaning of Item 4 to the Development Control Table to cl 47 as it applies to the General Business Zone “Development that is prohibited: Any development other than development included in item 2 or 3”.

25. Although my conclusions in respect of the permissible purpose of “ancillary development” are sufficient to determine that the proposed development is for the permissible purpose “residential flats, only in buildings subject to another permitted use” I should additionally proceed to adjudicate upon the parties’ competing arguments.

26. As I have earlier noted, the competing arguments proceed upon the common foundation that the hotel carparking accommodation in the proposed building is properly categorised as being ancillary to the use of the existing hotel. But what precisely does that common foundation mean? It means, in the language adopted by the decided cases (see Warringah Shire Council v Raffles (1978) 38 LGRA 306 and Solicitor General v Foodbarn Pty Ltd (1975) 32 LGRA 157) that it is necessary to distinguish between the nature of the use (carparking) and the nature of the purpose of that use (“hotel” purposes). This is because Items 2 and 3 of the Development Control Table to cl 47 of the LEP specify the permissible developments within the General Business Zone No 3(a) by reference to “the purposes” of specified developments. In these circumstances, as Hutley JA pointed out in Canterbury Municipal Council v Wallspace Advertising (Australia) Pty Ltd (1982) 47 LGRA 135 at 138, what development may or may not be carried out “depends on purposes of the use….and the purpose must be formulated in broad terms for along with the purpose, there go ancillary activities, which though compatible with the purpose of the use are not properly so described: see Raffles at 308”.

27. The cited reference to Raffles is a reference to the following proposition enunciated by Waddell J at 308:

It is established by decisions of the courts that, in applying planning scheme laws, a distinction must be drawn between the nature of a purpose and the nature of a use ”.

28. In illustration of this proposition, Waddell J summarised the holdings in a number of reported cases, including the following cases which involved the use of land for carparking in connection with some other particular use carried out on the land or on adjacent land:

In Gold Star Bakeries Pty Ltd v Waverley Municipal Council (1964) 10 LGRA 396 it was held that a proposal to use adjoining land for parking vehicles engaged in the distribution of bread produced at the bakery, which constituted an industry under the County of Cumberland Planning Scheme Ordinance , was not a use of land for the purpose of parking or for the commercial purpose of the distribution of bread, but for the purpose of an industry because the parking of such vehicles was an integral and indivisible part of the whole activity. A similar conclusion was reached in Scotts Provision Stores Pty Ltd v. Sydney City Council (No. 2) (1967) 13 LGRA. 271. This case concerned land which had been integrated with the land on which a bakery and pie factory was carried on. An earlier case concerned the same land, but at a time when it had not been integrated with the land on which the factory stood but was a separate and distinct parcel separated from it by a wall and having its own access to the street. In these circumstances it was held that use of the land by the bakery for parking might be regarded as a use for a separate and distinct purpose: Scotts Provision Stores Pty Ltd v. Sydney City Council ( 1965) 11 LGRA 380 .

29. The conclusion reached in Raffles at 310 was that the use of a part of the land upon which there existed a dwelling-house, for the purpose of the landing and taking off, of a helicopter used as the means of private transport by the owner of the land, was relevantly characterised for planning purposes as “the use of the land for the purpose of a dwelling house”.

30. Likewise in the present case, the use of the hotel carparking accommodation in the proposed building, being ancillary to the use of the existing hotel, may rightly be characterised as “development for the purposes of a hotel” (a hotel being a permissible purpose of development within the General Business 3(a) Zone).

31. The Council’s argument, based upon the definition of “hotel” contained in the LEP and the fact that the land specified in the hotelier’s licence for the “Engadine Hotel” does not include lot 6 (upon which the proposed building is to be erected) is not only excessively technical and literalistic, but more importantly, fails to appreciate what is precisely meant by the legal conclusion that that carparking use is relevantly to be categorised as development “for the purposes of the hotel”. It is development for the “purposes of the hotel” in the same manner that the helicopter landing pad was held in Raffles to be development “for the purpose of the dwelling-house”. In neither case is the relevant use of land (carparking and helicopter landing pad) “properly described” (Wallspace Advertising) as use as a hotel (in the former case) and use as a dwelling-house (in the latter case) yet in each case for planning purposes it is proper to categorise the relevant use as a use “for the purpose of” the hotel and dwelling-house respectively.

32. To this legal conclusion the fact of the limitations in the LEP definition of “hotel” and the fact that the land to which the current hotelier’s licence in respect of the “Engadine Hotel” relate does not include lot 6 (upon which the proposed building is to be erected) are both irrelevant.
E. CONCLUSION AND ORDERS

33. For all of the foregoing reasons, I determine the question of law raised by the Council by holding that the proposed development is for a permissible purpose of development within the General Business Zone No 3(a) under the LEP namely “residential flats only in buildings subject to another permitted use”.

34. Accordingly, I make the following orders:

1. The question of law be determined as follows:

The proposed development is for a permissible purpose of development within the General Business Zone No 3(a) under the LEP namely “ residential flats only in buildings subject to another permitted use ”.

2. Exhibits be returned.