Parkes v Byron Shire Council

[2003] NSWLEC 237

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Land and Environment Court

of New South Wales

CITATION:

Parkes v Byron Shire Council & Anor [2003] NSWLEC 237 revised - 4/03/2005

PARTIES:

APPLICANT:
John Parkes

FIRST RESPONDENT:
Byron Shire Council

SECOND RESPONDENT:
The Minister for Infrastructure and Planning

FILE NUMBER(S):

10897 of 2001 and 11050 of 2001

CORAM:

Lloyd J

KEY ISSUES:

Question of Law :- statutory interpretation - "tourist facility" - an establishment providing holiday accommodation" - class 1 - application by proponent to re-categorise development proposal

Words and Phrases:- "tourist facility" - "an establishment providing holiday accommodation"

LEGISLATION CITED:

Byron Local Environmental Plan 1988 cl 32(4)

CASES CITED:

Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672

DATES OF HEARING:

08/08/2003

EX TEMPORE
JUDGMENT DATE :

08/08/2003

LEGAL REPRESENTATIVES:

APPLICANT:
Mr T S Hale SC
SOLICITORS:
Beesley & Hughes

FIRST RESPONDENT:
Mr I J Hemmings (barrister)
SOLICITORS:
Abbott Tout

SECOND RESPONDENT:
Ms J M Jagot (barrister)
SOLICITORS:
Christine Hanson

JUDGMENT:

- 2 -

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10897 of 2001
11050 of 2001

Lloyd J

8 August 2003

JOHN PARKES

Applicant

v

BYRON SHIRE COUNCIL
First Respondent

THE MINISTER FOR INFRASTRUCTURE AND PLANNING
Second Respondent

EX TEMPORE JUDGMENT

HIS HONOUR:

1 There are two notices of motion before the Court. One is a notice of motion by the applicant that he be permitted to re-categorise the proposed development as holiday cabins. The second is a notice of motion by the first respondent - the council - that the proceedings be dismissed.

2 The parties have agreed that it is appropriate to deal with the applicant’s motion first.

3 The applicant’s motion is opposed on the ground that it would serve no utility because it is said that holiday cabins are prohibited development.

4 The proposed development is on land within zone 7(f2) Urban Coastal Land Zone under the Byron Local Environmental Plan 1988. Clause 32 of that instrument applies to all land within zone 7(f2). Sub-clause (4) of cl 32 states:

The council shall not consent to the carrying out of development on land shown edged heavy black and stippled on the map marked “Byron Local Environmental Plan 1998 (Amendment No. 66)” for the purpose of clubs, commercial premises, hostels, hotels, motels, residential flat buildings, shops, or tourist facilities or for a purpose that could otherwise be permissible with consent under clause 17 (Dual occupancy).

5 The parties agree that the subject land, that is, the land the subject of these development applications is land within the area shown edged heavy black and stippled on the map marked “Byron Local Environmental Plan 1998 (Amendment No. 66)”.

6 As I have said, the applicant wishes to re-categorise the proposals as holiday cabins. The words, “holiday cabin”, are defined in the instrument as meaning “a building containing a room or suite of rooms used, or intended to be used, for the provision of holiday accommodation only”.

7 The words, “tourist facilities”, are defined to mean:

An establishment providing holiday accommodation or recreation and may include a boat shed, boat landing facility, holiday cabin, hotel, house boat, marina, motel, playground, primitive camping ground, refreshment room, water sport facility or a club used in conjunction with any such facility.

8 As I understand it, Mr T S Hale SC, appearing for the applicant, relies upon the definition being in the plural, “tourist facilities”, and suggests that in order to come within that definition the establishment must provide something more than mere accommodation.

9 The critical question, it seems to me, is whether there is any implied restriction upon the general words in this case, “[a]n establishment providing holiday accommodation”, and those words which follow it in the definition of tourist facilities.

10 In my opinion, the position is governed by what is said by Mason J in Leon Fink Holdings Pty Limited v Australian Film Commission (1979) 141 CLR 672 at 678-679. As observed by Mason J in Leon Fink: “From time to time provisions will be inserted for more abundant caution to guard against the possibility that the general might be read as not including the particular”. The particular examples cannot, however, in any way cut down the generality of the unqualified general words, in this case, “an establishment providing holiday accommodation”.

11 In the present case, one looks at the definition of “tourist facilities”. It is defined to mean “[a]n establishment providing holiday accommodation…”. What follows is by way of example. A holiday cabin clearly is something that provides holiday accommodation. The definition of holiday cabin itself says so. A holiday cabin is, therefore, also a “tourist facility”. It follows, then, that a holiday cabin is prohibited in zone 7(f2).

12 It follows that there will be no utility in re-categorising the development proposal as holiday cabins, that being a prohibited use.

13 The applicant’s notice of motion is, as a consequence, dismissed.

14 As a consequence of my ruling on the applicant’s notice of motion, it is conceded by the applicant that the appeal in proceedings No. 11050 of 2001 must be dismissed.

15 I make the following formal orders:

No.10897 of 2001

(1) The applicant’s notice of motion filed 2 June is dismissed.

(2) The first respondent’s notice of motion filed 27 May 2003 is dismissed.

(3) The proceedings are stood over to the Registrar’s call-over at 9.00 am on 26 September 2003 for further directions.

(4) The question of costs is reserved.

No. 11050 of 2001

(1) The applicant’s notice of motion filed 2 June 2003 is dismissed.

(2) The question of costs is reserved.

(3) By consent, on the first respondent’s notice of motion filed 27 May 2003, the proceedings are dismissed.

I hereby certify that the preceding 15 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.

Associate
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