Powell Holdings Pty Limited v Hornsby Shire Council

[1998] NSWLEC 105

Land and Environment Court

of New South Wales

CITATION:	Powell Holdings Pty Limited v. Hornsby Shire Council [1998] NSWLEC 105
PARTIES:	APPLICANT Powell Holdings Pty Ltd RERSPONDENT Hornsby Shire Council
FILE NUMBER(S):	10032; 10033; 20004 of 1998
CORAM:	Pearlman J
KEY ISSUES:	:-
LEGISLATION CITED:	Hornsby Planning Scheme Ordinance Hornsby Shire Local Environmental Plan 1994
CASES CITED:	Foodbarn Pty Ltd and Ors v Solicitor-General (1975) 32 LGRA 157 at 161); Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 at 409); Londish and Anor v Knox Grammar School and Ors (Court of Appeal, 22 December 1997
DATES OF HEARING:	30/03/98
DATE OF JUDGMENT:	06/02/1998
LEGAL REPRESENTATIVES:	APPLICANT Mr P R Clay, Barrister Stephen Doyle & Associates RESPONDENT Mr P J Schofield, Solicitor Pike, Pike & Fenwick

JUDGMENT:

A preliminary question of law has arisen for determination in these proceedings. Before coming to the actual question, it is necessary to set out the context in which it has arisen.

The applicant, Powell Holdings Pty Ltd, conducts a nursery upon its property. It has development consent for that use. It also has development consent for use of part of the property as a coffee shop. It wishes to convert the coffee shop into a restaurant. Use of the property as a restaurant is prohibited under the current local environmental plan.

The applicant claims that the use as a coffee shop is an independent use of the property, and is therefore an "existing use" within the meaning of s 106 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). If that is the case, the applicant would be entitled to change that existing use to the prohibited use, subject to development consent, under cl 43 of the Environmental Planning and Assessment Regulation 1994 ("the Regulation").

The council claims that the use of part of the property as a coffee shop is not an independent use, but is ancillary or subordinate to the use of the property as a nursery. If that is the case, there are no existing use rights, and development consent to change the use of the coffee shop to a restaurant must be refused because use as a restaurant is a prohibited use.

The question of law as framed by the parties does not precisely reflect the context I have set out. Accordingly, I propose to answer the following preliminary question of law, which was the question that was actually the subject of evidence and argument. It is as follows:

"Whether the use of part of the property as a coffee shop is a separate and independent use of the property, which is therefore protected as an existing use under div 2 of pt 4 of the EP&A Act?"

Background

The applicant has lodged two applications with the council. One is a development application, seeking approval for a change of existing use to use as a restaurant. The other is an application for modification of the 1993 consent seeking the deletion of certain conditions of consent. Both those applications have been refused by the council, and the applicant has appealed in respect of each of them (in proceedings numbered 10033 of 1998 and 10032 of 1998 respectively). In addition, the applicant has appealed against a condition (which provides that no food will be consumed within the glasshouse) imposed in relation to a building approval granted to it on 9 October 1997 (proceedings numbered 20004 of 1998).

The evidence before the Court comprises, first, a statement of facts, which chiefly sets out the history of the zoning and development applications relating to the property, secondly, a bundle of documents from the council file, comprising development applications, various accompanying plans, notices of determination and some correspondence from the applicant's consultants, and, thirdly, an affidavit of Mr A W Powell, the managing director of the applicant.

That evidence discloses the following facts and circumstances.

The property to which I have referred is lot B2 DP353028, situated at 353 Galston Road, Galston ("the property"). It has for many years been used as a wholesale nursery. Development consent for the purposes of a retail nursery on part of the property was granted by the council to the applicant on 31 August 1992.

On 30 August 1993, the council granted development consent 305/93 ("the 1993 consent") "for the conversion of part of an existing cottage for the purpose of a coffee shop for nursery customers". That consent was granted subject to conditions, amongst which are the following:

"17. Hours of operation to be restricted to normal trading hours of the nursery and not later than 5.00pm to avoid likelihood of noise.

20. The proposal be subject to the use being for nursery customers only."

At the date of the 1993 consent, the Hornsby Planning Scheme Ordinance ("the PSO") applied to the property. Under the PSO, the property was zoned Rural 1(C2), pursuant to which use as a coffee shop was an innominate use, permissible with consent.

On 22 July 1994, the PSO was repealed, and the Hornsby Shire Local Environmental Plan 1994 ("the LEP") was gazetted. Under the LEP, the property is zoned Rural B, pursuant to which use as a restaurant is prohibited.

The plan which accompanied the development application (drawing 93-104/1) reveals the location within the property of the existing cottage in which the coffee shop is situated. The plan shows the proposed modification to the existing cottage to construct the coffee shop. Apparently the modification works were carried out, so that one can assume that the configuration of the cottage depicted on the plan is that which presently exists.

The cottage comprises an internal seating area for the coffee shop, adjacent to which is the kitchen. There is an outdoor verandah which also provides an additional seating area for the coffee shop. The cottage contains two offices, an amenities area and a display area. The entrance to the cottage, and thus to the coffee shop, is through the nursery, and there is no separate entrance for the coffee shop.

The capacity of the coffee shop is unclear. The plan depicts 26 seats and 11 tables, but Mr Clay, counsel for the applicant, submitted that the seating capacity of the coffee shop was up to 50 persons. The conditions of consent make no reference to seating capacity. Whatever be its correct seating capacity, it is clear that its size is more than minimal.

In his affidavit, Mr Powell stated that, since 1994, the coffee shop has served beverages (such as tea, coffee, milkshakes, fruit juices and soft drinks) and food (such as soups, crepes, salads, sandwiches, lasagne, quiche and cakes).

An independent or an ancillary use?

The answer to the preliminary question of law requires the categorisation of the use to which the property is put, a task which often arises in this Court. In regard to that task, the relevant legal principles are not in doubt. Where a part of particular premises is used for a purpose which is subordinate to the purpose which inspires the use of another part, it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being used (Foodbarn Pty Ltd and Ors v Solicitor-General (1975) 32 LGRA 157 at 161). However, a use which is ancillary to another use may nevertheless be an independent use - it is a question of fact and degree in all the circumstances of the case (Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 at 409). It is necessary to have regard to the nature of the use and occupation of the premises in order to determine the question of categorisation (Londish and Anor v Knox Grammar School and Ors (Court of Appeal, 22 December 1997, unreported at

13)).

Mr Schofield, appearing for the council, relied on the following matters as demonstrating the ancillary or subordinate nature of the coffee shop use:

* the development consent was given "for the purpose of a coffee shop for nursery customers";

* the hours of operation are limited by condition 17 to the "normal trading hours of the nursery";

* condition 20, requiring the use to be only for nursery customers, is intended to reinforce the ancillary nature of the coffee shop use;

* there is no separate entrance to the area of the property used for the coffee shop; and

* at the time the applicant sought development consent for the coffee shop, its architects, in a letter to the council dated 6 April 1993, described that use as "an adjunct to the nursery".

Mr Schofield submitted that, taking all these matters into account, the coffee shop use has no existence of its own; it is subordinate, and it depends entirely upon the nursery use.

Mr Clay pointed to a number of other matters which he submitted supported the applicant's claim that coffee shop use is an independent use. They were:

* the comparatively large size of the coffee shop. It provides seating for a significant number of persons, it is a fully-fledged coffee shop, and more than a coke machine or an icecream stand;

* the development consent does not attempt to limit the users of the coffee shop to nursery customers by imposing control requirements, such as the production of a receipt for a nursery purchase in order to partake of refreshment;

* the use as a coffee shop is an activity which could not in any way be linked to the nursery use. Activities which might truly be ancillary to the nursery use were, for example, the sale of soil or pots;

* the coffee shop occupies an exclusive part of the property. It is constructed within the cottage, quite separate to those parts of the property which are generally used for nursery purposes.

I have come to the conclusion that the use of the property "for the purpose of a coffee shop for nursery customers" is an independent use, although ancillary to the nursery use of the property.

In this regard, the following passage from the judgment of Meagher J A in Baulkham Hills v O'Donnell at pp 409-410 is illustrative and apposite:

"Notwithstanding the principles laid down in Foodbarn, it does not follow that a use which can be said to be ancillary to another use is thereby automatically precluded from being an independent use of the land. It is a question of fact and degree in all the circumstances of the case whether such a result ensues or not. When a resident uses his land to park his motor car at his house, he is no doubt not conducting an independent use of car parking; when an employer installs at his factory a canteen for his workers, no doubt he is not conducting an independent use of running a restaurant; when the Clarks grew vegetables for their table they were not conducting an independent use of vegetable growing. But when one use of the land is by reason of its nature and extent capable of being an independent use it is not deprived of that quality because it is `ancillary to', or related to, or interdependent with, another use. If a book publisher opens a sales room at his publishing house to sell his products, the sellin

g of books is an independent use although ancillary to the use of publishing. The series of cases dealing with dual uses ... illustrate the point: they show that a 'convenience store' and a petrol station are two independent uses, although the former is clearly ancillary to the latter."

In this case, the reference in the development consent to "a coffee shop for nursery customers" and the conditions confining its operation to the nursery hours and stating that its use is only for nursery customers all indicate that the coffee shop use was intended to be and is ancillary to the nursery use. But, to adopt the words of Meagher J in the passage I have quoted, the coffee shop use is by reason of its nature and extent capable of being an independent use. This is demonstrated by a number of features. First, it is a use which is qualitatively different in nature to the nursery use, that is, the sale of beverages and food is qualitatively different to the sale of plants, pots, soil and the like. Secondly, it is a significant use of the property because it is more than a mere coffee machine located in a corner of a building on the property. Thirdly, although the coffee shop shares with the nursery a building, entrance and surrounding area, there is no evidence of any physical or other prohibition whic

h would confine its customers only to those who are using the nursery.

For the purpose, then, of answering the preliminary question of law, I find that the coffee shop use is an independent use.

Existing use

It was not in contest that, if the use of the property for the purpose of a coffee shop is an independent use, then it falls within the definition of "existing use" in s 106 of the EP&A Act and is thus entitled to the protection of existing uses conferred by div 2 of pt 4 of the EP&A Act.

Conclusion

In accordance with the foregoing, I answer the question of law as follows:

Question:

Whether the use of part of the property as a coffee shop is a separate and independent use of the property and is therefore protected under div 2 of pt 4 of the Environmental Planning and Assessment Act 1979?

Answer:

Yes.

The answer I have given may be decisive in the appeals presently before the Court, but I am not fully apprised of all the issues arising in those appeals. Accordingly, I merely direct that those appeals be determined in accordance with the answer I have given to the preliminary question of law and I grant leave to the parties to list those appeals before the Registrar for directions as to their future conduct.