Nelda Bay Pty Limited v Sutherland Shire Council

[2014] NSWLEC 1231

Land and Environment Court

New South Wales

Medium Neutral Citation:	Nelda Bay Pty Limited v Sutherland Shire Council [2014] NSWLEC 1231
Hearing dates:	22 October 2014
Decision date:	22 October 2014
Jurisdiction:	Class 1
Before:	Moore SC
Decision:	Proposed consent orders upholding appeal [see (7)].
Catchwords:	WORDS AND PHRASES: whether goods sold at premises were "boats and ancillary equipment"
Cases Cited:	Chamwell Pty Ltd v Strathfield Municipal Council [2007] NSWLEC 114, (2007) 151 LGERA 400 Pallas Newco v Voltraint No 1066 Pty Ltd [2003] NSWLEC 232, (2003) 129 LGERA 234
Category:	Principal judgment
Parties:	Nelda Bay Pty Limited (Applicant) Sutherland Shire Council (Respondent)
Representation:	Mr I Hemmings SC (Applicant) Ms J Amy (Respondent) Gadens Lawyers (Applicant) Sutherland Shire Council (Respondent)
File Number(s):	10557 of 2014

Judgment

1. SENIOR COMMISSIONER: In these proceedings, the applicant is currently operating a retail business on the corner of Taren Point Road and Parraweena Road at Taren Point (in the northeastern quadrant of that intersection). I inspected the site this morning with the legal representatives of the parties and those advising and instructing them. During the course of the inspection I examined:

• the signage on the inside of the windows displayed through the windows
• the signage that is on the exterior of the building
• a shipping container in the Taren Point Road frontage of the building
• the proposed revised egress to Parraweena Road; and
• the interior of the building and the items that are offered for sale in the building (they including several inflatable boats that are on display against the outer wall of the northern element of the building - it now being a single building but having in the past been two buildings now linked by a staircase and walkway)

1. Inside the building, I inspected a wide range of materials for sale - many of which are quite explicitly able to be identified as having a purpose designed to be used with boats and ancillary equipment but also allowing the fact that the Australian spirit of larrikin improvisation might well use them for a wide range of other activities. The remainder of the building sells materials that are capable of being used on boats including on houseboats, they being things such as awnings, deckchairs, barbecues and the like (but all nonetheless capable of being used on boats as ancillary equipment for such boats).

1. When the proceedings returned to the Court, I enquired of Ms Amy, solicitor for the council, first whether she agreed with my view that a boat constituted something that was on the water capable of being propelled and accommodating passengers (whether the propulsion was human or some other artificial form being irrelevant) and she agreed; I then asked her whether she considered that houseboats constituted a type of boat and she accepted that that was the proposition.

1. It was then my opinion that those concessions placed considerable hurdles in the path of the council in contesting that that which was being undertaken on the site in the eyes of those undertaking the activity of the site (without it being appropriate to inquire of those who were customers of the site for purposes for which they proposed to use the equipment) was selling boats and ancillary equipment.

1. The sort of dissection that was undertaken by Preston CJ in Chamwell Pty Ltd v Strathfield Municipal Council [2007] NSWLEC 114, (2007) 151 LGERA 400 (at paras 38 and 39) is not apposite in these proceedings. There is no separation of use in the eyes of the proprietors that might arise in any sense that was argued in those provisions. There is certainly no secondary use in the eyes and mind of anybody examining the operation (without paying attention to the mind of the customers, that being an unknown and unknowable matter) and thus there is no issue arising in these proceedings that engages the matters discussed by Talbot J in Pallas Newco v Voltraint No 1066 Pty Ltd [2003] NSWLEC 232, (2003) 129 LGERA 234 as to whether there are two uses and if so whether they are subordinate or subservient or not.

1. I am satisfied that, in this case, there is a single use. The use of the land has as its primary purpose the selling of boats and ancillary equipment. That falls within the definition of maritime activity. That activity is permissible in Zone 11 with development consent. Having indicated a preliminary view that those broad propositions might need to be considered, Ms Amy properly sought further instructions on the matter and the council now proposes to enter into consent orders subject to conditions set out in Exhibit A but to be revised and transmitted to the Court electronically.

1. The consequence of all of that is that the result of the appeal will be that:

(1)   The appeal, by consent, will be upheld;

(2)   Development Application 14/0429 for the use of 97 Parraweena Road, Caringbah as premises for the sale of boats and ancillary will be granted development consent subject to conditions that will be incorporated in final orders when I make them in chambers; and

(3)   The exhibits other than exhibits A and C are returned.

1. I now adjourn the matter until 4.30pm on Monday, 27 October to enable provision to me of an electronic copy of the proposed conditions of consent as a .doc Word document in order to permit me to make the orders. If that direction is complied with I will make the orders in chambers (with those orders will be dated today) and vacate the mention.

Tim Moore

Senior Commissioner

Decision last updated: 06 November 2014