Solid Gold Custodians Pty Ltd ATF SGH Property Trust v Inner West Council

[2024] NSWLEC 1835

Land and Environment Court

New South Wales

Medium Neutral Citation:

Solid Gold Custodians Pty Ltd ATF SGH Property Trust v Inner West Council [2024] NSWLEC 1835

Hearing dates:

26-28 August 2024

Date of orders:

20 December 2024

Decision date:

20 December 2024

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) The development application (DA/2023/0377) for the fit-out and use of the premises at 30-32 Murray Street, Marrickville for the purpose of a hair and beauty salon, including signage, is determined by the grant of consent subject to the conditions in Annexure A.

(3) Exhibits 1 and 3 are returned, and the remaining exhibits are retained.

Catchwords:

APPEAL – development application – hair and beauty salon – whether hair and beauty salon is business premises used for creative purposes – objectives of zone – character of area

Legislation Cited:

Environmental Planning and Assessment Act 1979, Pt 4, ss 4.2, 4.65, 4.67, 4.70, 8.7

Environmental Planning and Assessment Regulation 2021, ss 163, 165, 167

Inner West Local Environmental Plan 2022, cll 2.3, 6.21

Marrickville Local Environment Plan 2011, cl 6.12

Cases Cited:

4nature Incorporated v Centennial Springvale Pty Ltd (2017) 95 NSWLR 361; [2017] NSWCA 191

Chamwell Pty Limited v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114

Cheetham v Goulburn Motorcycle Club Inc (2017) 223 LGERA 43; [2017] NSWCA 83

Strathfield Municipal Council v Poynting (2001) 116 LGERA 319; [2001] NSWCA 270

SZTAL v Minister for Immigration and Border Protection (2017) 263 CLR 362; [2017] HCA 34

Texts Cited:

Land Use Characterisation Planning Circular, PS 21-008, 2 December 2021

Category:

Principal judgment

Parties:

Solid Gold Custodians Pty Ltd ATF SGH Property Trust (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
T Robertson SC (Applicant)
P Larkin and E Dunlop (Respondent)

Solicitors:
Project Lawyers (Applicant)
Inner West Council (Respondent)

File Number(s):

2023/361708

Publication restriction:

Nil

Judgment

1. COMMISSIONER: From the mohawk to the ‘short back and sides’, a person’s hairstyle can range from an expression of personality to a demonstration of conformity. Certain styles come and go, and over history particular hairstyles have been representative of a class or occupation, symbolic of a social movement or a requirement of a religious persuasion. It is clear that the rich history of hairdressing traverses eras and cultures, and marks social movements and historic events. Despite this rich history, hairdressing finds itself in the centre of a debate that requires it to be tied to words in a planning instrument. The hearing of this appeal was principally concerned with whether a hair and beauty salon is a business premises that is “used for creative purposes”.

2. On the corner of Murray Street and Smidmore Street, opposite the Marrickville Metro shopping centre, is an existing two-storey industrial and commercial building with a third-storey mezzanine, that was constructed following the grant of development consent on 11 July 2019. Solid Gold Custodians Pty Ltd (SGC), as trustees for SGH Property Trust, seek development consent for the fit out of the premises as a hair and beauty salon. SGC lodged a development application on 25 May 2023, which was refused by Inner West Council (the Council) on 3 November 2023. SGC appeals against that decision, pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. The Council opposes the grant of development consent on the basis that the use of the premises as a hair and beauty salon, which is a type of business premises, is a prohibited use in the zone in which the site is located, and does not satisfy the requirements of cl 6.21 of the Inner West Local Environmental Plan 2022 (IWLEP), which would otherwise make it permissible in the zone. Put simply, the Council says that a hair and beauty salon is not a development that is “used for creative purposes”. The Council agrees that the contentions it initially raised concerning signage and parking in the Statement of Facts and Contentions filed on 1 December 2023, have now been resolved.

4. For the reasons that are set out below, I accept that cl 6.21 of the IWLEP operates to make office and business premises permissible with development consent if the requirements of the clause are met, notwithstanding that such premises would otherwise be prohibited in the zone. I have determined that the proposed hair and beauty salon is a business premises that meets the requirements of cl 6.21 of the IWLEP. In so determining, I am satisfied that the development will be used for creative purposes. I reached this state of satisfaction as a hair and beauty salon provides services that involve skilful design, they use creativity to achieve a diversity of styles, and those styles can be a form of creative expression for the wearer.

The site and the locality

5. The site has a street address of 30-32 Murray Street, Marrickville, and is legally identified as Lot 141 in DP 607690. The site has a site area of 596m² and is located on the northern side of the intersection of Murray Street and Smidmore Street with a frontage of 22.545m to Murray Street and 46.245m to Smidmore Street.

6. An existing 2-storey building is located on the site, which is the subject of the development application. Above the second storey is a small mezzanine level. The building is serviced by a lift as well as stairs, and has a glazed frontage that addresses the intersection with a small forecourt, as well as a loading area accessed from Smidmore Street. The gross floor area of the building is 985m².

The existing development consent

7. Development consent was granted on 11 July 2019 (DA/2019/00106) for the construction of what was described in the determination as “a 2 storey industrial and commercial building with associated parking and servicing area”. Condition 1 of the existing consent required the development to be carried out in accordance with a number of documents, which includes a Statement of Environmental Effects dated 28 March 2019 (original SEE) and a Plan of Management. Whilst the Plan of Management describes the development as a “Light Industrial Development”, the original SEE contemplates the potential uses on the site and states:

“The proposal at this stage seeks consent for an overall light industrial and commercial use on the site. The future use on the site is intended to incorporate creative activities/land uses, however at this stage it is unknown what the specific uses will be until consent is granted. It is proposed that specific future land uses on the site and any fit-out type works be subject to, if possible either a Complying Development Certificate or separate development application. Moreover, the intent of this proposal is to provide and encourage diverse employment opportunities on the site.”

8. Condition 3 of the consent states “no retailing must be carried out from the premises”, and condition 4 of the consent states that “the entire premise must be used as a single occupancy for the use approved in this development consent with the first floor area being used exclusively in association with the approved use and not being sublet or used for any other purpose.”

9. On 27 November 2020, the Council approved an application to modify the existing consent. On 4 March 2022, the Council issued an occupation certificate for the building on the site (the OC). The OC describes the building as “Commercial and industrial building with associated parking and servicing area.” The OC forms part of the development consent to which it relates, pursuant to s 6.4(c) of the EPA Act.

10. The OC identifies that the building classification is “Mixed classifications incl. 6, 7a & 8”. In accordance with the National Construction Code (NCC), Class 6 buildings include “a shop or other building used for the sale of goods by retail or the supply of services direct to the public”, and includes a “hairdresser’s or barber’s shop”.

The historic and current planning framework

11. Under both the planning framework at the time development consent was granted, and that which applies to the site at present, the definitions of certain forms of development consent remain consistent. These include the following:

commercial premises means any of the following—

(a) business premises,

(b) office premises,

(c) retail premises.

business premises means a building or place at or on which—

(a) an occupation, profession or trade (other than an industry) is carried on for the provision of services directly to members of the public on a regular basis, or

(b) a service is provided directly to members of the public on a regular basis,

and includes funeral homes, goods repair and reuse premises and, without limitation, premises such as banks, post offices, hairdressers, dry cleaners, travel agencies, betting agencies and the like, but does not include an entertainment facility, home business, home occupation, home occupation (sex services), medical centre, restricted premises, sex services premises or veterinary hospital.

12. It is clear, therefore, that a hair and beauty salon is a business premises, which means that it is a type of commercial premises.

Planning framework at the time development consent was granted

13. At the time that the building consent was granted, the site was zoned IN2 Light Industrial, pursuant to the Marrickville Local Environment Plan 2011 (MLEP) which has since been repealed. Commercial premises were a nominated permissible use in the IN2 zone, and retail premises, a sub-set of commercial premises, was a nominated prohibited use in the zone. Light industry was also a nominated permissible use in the zone.

14. Clause 6.12 of the MLEP also applied to the site, as follows:

6.12 Business and office premises in certain zones

(1) The objective of this clause is to promote certain types of business and office premises in Zone IN2 Light Industrial and Zone B7 Business Park.

(2) This clause applies to land in the following zones—

(a) Zone IN2 Light Industrial,

(b) Zone B7 Business Park.

(3) Development consent must not be granted to development for the purpose of business premises or office premises on land to which this clause applies unless the consent authority is satisfied that the development will be used for a creative purpose such as media, advertising, fine arts and craft, design, film and television, music, publishing, performing arts, cultural heritage institutions or other related purposes.

Current planning framework

15. The site is currently zoned E4 General Industrial pursuant to the IWLEP. In the land use table, commercial premises are a nominated prohibited use in the zone. Light industry remains a nominated permissible use in the zone.

16. The objectives of the E4 zone are as follows:

• To provide a range of industrial, warehouse, logistics and related land uses.

• To ensure the efficient and viable use of land for industrial uses.

• To minimise any adverse effect of industry on other land uses.

• To encourage employment opportunities.

• To enable limited non-industrial land uses that provide facilities and services to meet the needs of businesses and workers.

• To protect industrial land in proximity to Sydney Airport and Port Botany and the Eastern Economic Corridor.

• To retain existing and encourage new industrial uses to meet the needs of the community.

17. Clause 6.21 of the IWLEP applies to certain areas that are zoned E4 and identified as “Area 19”. The site falls within Area 19. Clause 6.21 provides:

6.21 Business and office premises in Zones E3 and E4

(1) The objective of this clause is to promote certain types of business and office premises in Zone E3 Productivity Support and Zone E4 General Industrial.

(2) This clause applies to land in Zone E3 Productivity Support and Zone E4 General Industrial and identified as “Area 19” on the Key Sites Map.

(3) Development consent must not be granted to development for the purposes of business premises or office premises on land to which this clause applies unless the consent authority is satisfied that the development will be used for creative purposes, including the following—

(a) media,

(b) advertising,

(c) fine arts and craft,

(d) design,

(e) film and television,

(f) music,

(g) publishing,

(h) performing arts,

(i) cultural heritage institutions.

18. Curiously, cl 6.21 of the IWLEP is similar in its terms to cl 6.12 of the MLEP, but business and office premises were permissible with consent in the applicable zones in the MLEP by dint of the permissibility of commercial premises, whereas business and office premises are prohibited in the E4 zone pursuant to the land use table in the IWLEP, by dint of the prohibition on commercial premises.

The incorporated provisions

19. A use that is prohibited may be permissible if it is an existing use. The definition of existing use can be found in s 4.65 of the EPA Act, and s 4.67 allows the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021) to make provision for or with respect to existing use. These sections provide:

4.65 Definition of “existing use” (cf previous s 106)

In this Division, existing use means—

(a) the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for this Division, have the effect of prohibiting that use, and

(b) the use of a building, work or land—

(i) for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and

(ii) that has been carried out, within one year after the date on which that provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse.

…

4.67 Regulations respecting existing use (cf previous s 108)

(1) The regulations may make provision for or with respect to existing use and, in particular, for or with respect to—

(a) the carrying out of alterations or extensions to or the rebuilding of a building or work being used for an existing use, and

(b) the change of an existing use to another use, and

(c) the enlargement or expansion or intensification of an existing use.

(d) (Repealed)

(2) The provisions (in this section referred to as the incorporated provisions) of any regulations in force for the purposes of subsection (1) are taken to be incorporated in every environmental planning instrument.

(3) An environmental planning instrument may, in accordance with this Act, contain provisions extending, expanding or supplementing the incorporated provisions, but any provisions (other than incorporated provisions) in such an instrument that, but for this subsection, would derogate or have the effect of derogating from the incorporated provisions have no force or effect while the incorporated provisions remain in force.

(4) Any right or authority granted by the incorporated provisions or any provisions of an environmental planning instrument extending, expanding or supplementing the incorporated provisions do not apply to or in respect of an existing use which commenced pursuant to a consent of the Minister under section 4.33 to a development application for consent to carry out prohibited development.

20. Section 4.70 of the EPA Act preserves a development consent, as follows:

4.70 Saving of effect of existing consents (cf previous s 109B)

(1) Nothing in an environmental planning instrument prohibits, or requires a further development consent to authorise, the carrying out of development in accordance with a consent that has been granted and is in force.

(2) This section—

(a) applies to consents lawfully granted before or after the commencement of this Act, and

(b) does not prevent the lapsing, revocation or modification, in accordance with this Act, of a consent, and

(c) has effect despite anything to the contrary in section 4.66 or 4.68.

(3) This section is taken to have commenced on the commencement of this Act.

21. The provisions of the EPA Regulation 2021 that are taken to be incorporated in the IWLEP include the following:

163 Certain development allowed

(1) An existing use may, subject to this Part—

(a) be enlarged, expanded or intensified, or

(b) be altered or extended, or

(c) be rebuilt, or

(d) be changed to another use, but only if the other use is a use that may be carried out with or without development consent under the Act, or

(e) if it is a commercial use—be changed to another commercial use, including a commercial use that would otherwise be prohibited under the Act, or

(f) if it is a light industrial use—be changed to another light industrial use or a commercial use, including a light industrial use or commercial use that would otherwise be prohibited under the Act.

(2) However, an existing use must not be changed under subsection (1)(e) or (f) unless the change—

(a) involves only minor alterations, and

(b) does not involve an increase of more than 10% in the gross floor area of the premises associated with the existing use, and

(c) does not involve the rebuilding of the premises associated with the existing use, and

(d) does not involve a significant intensification of the existing use.

(3) In this section—

commercial use means the use of a building, work or land for the purposes of commercial premises.

light industrial use means the use of a building, work or land for the purposes of light industry.

…

165 Alteration of buildings and works

(1) Development consent is required for an alteration of a building or work used for an existing use.

(2) The alteration must be—

(a) for the existing use of the building or work and for no other use, and

(b) erected or carried out only on the land on which the building or work was erected or carried out immediately before the relevant day.

…

167 Change of existing uses

(1) Development consent is required for—

(a) a change of an existing use to another use, and

(b) for a building, work or land that is used for different existing uses—a change in the proportions in which the various parts of the building, work or land are used for the different existing uses.

(2) This Part does not prevent the granting of a development consent referred to in another provision of this Part at the same time as the granting of a development consent referred to in subsection (1).

The expert evidence

Town planning evidence

22. Planning opinion evidence was given by Mr Michael Gheorghiu, a town planner engaged by SGC, and Mr Jeremy Swan, a town planner engaged by the Council.

23. Mr Gheorghiu and Mr Swan agree that the end user for the proposed development is intended to be Salon Lane, which operates like a serviced office arrangement, allowing independent businesses to rent space on a temporary or ongoing basis. Their mission, taken from the website, is “to empower independent hair, beauty and wellness professionals to become entrepreneurs, enabling them to operate successful businesses”.

24. Mr Gheorghiu and Mr Swan disagree on whether the proposed use is permissible by virtue of the existing consent, and whether the proposed use will be used for creative purposes in accordance with cl 6.21 of the IWLEP.

25. Mr Swan opines that it is insufficient for there to be creative elements of the use, and says that to meet the requirement for “creative purposes”, the creative purpose must be the core purpose of the development. On the other hand, Mr Gheorghiu opines that the proposal, as a creative design profession, fits within the ambit of cl 6.21. His opinion is informed by interviews with hairdressers and by research into the history of hairdressing.

26. Mr Gheorghiu and Mr Swan also gave competing evidence concerning whether the proposed development involves “only minor alterations” and/or “a significant intensification”, within the meaning of s 163(2) of the EPA Regulation 2021.

Evidence on parking availability

27. On the first day of the hearing, SGC made an application to rely on additional evidence, being parking surveys undertaken by Mr Ken Hollyoak on 22 and 24 August 2024. Mr Hollyoak is a traffic engineer, and had calculated the number of vacant on-street parking spaces available within specified distances of the site.

27. That application was opposed by the Council, and I declined to allow the tender of that evidence in circumstances where there was a risk it would cause prejudice to the Council, who did not have sufficient time to consider its contents or what evidence could be put on concerning the issue.

28. However, the Council’s opposition to the tender of that evidence was later withdrawn, and, as a result of those parking surveys, the Council agrees that the contention concerning the adequacy of car parking is now resolved (contention 2).

Is the proposed development for a permissible use?

30. Part 4 of the EPA Act allows a development application to be made for specified development if “an environmental planning instrument provides that specified development may not be carried out except with development consent” (s 4.2). Accordingly, for the development application that is before the Court to be a development application in terms of the EPA Act, the purpose of the development must be one that is specified in an environmental planning instrument as being permissible with development consent. The issue, of course, is that the proposed use falls within the ambit of commercial premises, which is a nominated prohibited use in the land use table for the E4 zone in which the site is located.

31. The land use table in the IWLEP is operative through cl 2.3 of the IWLEP. Clause 2.3(4) states that “This clause is subject to the other provisions of this Plan”.

32. Both parties agree that cl 6.21 of the IWLEP should be interpreted as making business and office premises permissible with consent in the E4 zone, if they are premises that “will be used for creative purposes”. They both agree that the category “creative purposes” is not confined by the list set out in the clause. However, they disagree as to whether the hair and beauty salon is a use that is “for creative purposes”.

33. If cl 6.21 of the IWLEP cannot be interpreted as making the proposed development permissible with consent in the E4 zone, SGC relies on the existing consent and the existing use that arises from the existing consent.

The Council’s position on permissibility

34. The Council contends that the proposed development is prohibited in the E4 General Industrial zone, as a type of commercial premises, and that the existing consent does not operate to make the proposed use permissible pursuant to either s 4.70 of the EPA Regulation 2021 or by the incorporated provisions.

35. Integral to the Council’s position is that the hair and beauty salon use is not a creative purpose within the meaning of either cl 6.12 of the MLEP or cl 6.21 of the IWLEP. Accordingly, the Council says that a hair and beauty salon was never a use that was permissible on the site, and therefore is not within the scope of the existing consent. The Council’s position, therefore, is that the proposed development is neither permissible under the IWLEP nor an existing use that could be permissible pursuant to the incorporated provisions.

36. The Council submits that, in order for the proposed development to be “for creative purposes”, the creative purpose must be the dominant purpose of the use, to which all of the activities are directed. It relies on the Land Use Characterisation Planning Circular, PS 21-008, dated 2 December 2021, which provides that:

“Development is considered to be for a particular purpose if that purpose is the dominant purpose of the development. This purpose is the reason for which the development is to be undertaken or the end to which the development serves.”

37. The Council relies upon well established principles concerning land use, that development is for a purpose, and the purpose of the use is “the end to which land is seen to serve” (Chamwell Pty Limited v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 at [27]). The Council submits that although some hairstyles are a form of creative expression, hairdressing is often a purely utilitarian exercise that forms part of standard personal grooming. As such, the Council says that the end to which the land is to serve is not creative purposes, but personal services. The Council therefore says that a hair and beauty salon cannot properly be characterised as “for creative purposes”, and must be refused as it is not a permissible use.

38. The Council agrees that the list of examples in cl 6.21(3) is not exclusive, given the use of the words “includes the following”. Applying the reasoning in Cheetham v Goulburn Motorcycle Club Inc (2017) 223 LGERA 43; [2017] NSWCA 83, per McColl JA and Sackville AJA, the examples provided “are intended to be illustrative of the general requirements stated in the first part of the definition”. The Council also points out that, even if a development meets the description of one of the examples, it will not fall within the definition unless it is also “for creative purposes”.

39. The Council also submits that giving “creative purposes” an expansive meaning would be contrary to the objectives of the zone, which include an express objective to allow “limited non-industrial land uses that provide facilities and services to meet the needs of businesses and workers”.

40. The Council’s position is also that the proposed use is not authorised as an existing use under the existing consent, as the existing consent must be construed having regard to the terms of the MLEP. In circumstances where the only business premises permitted in the zone were those for “creative purposes”, the Council says that the development consent could not have authorised a business premises that was not for “creative purposes”, such as the hair and beauty salon. As such, the Council says the proposed hair and beauty salon is neither authorised by the existing consent nor permissible pursuant to the incorporated provisions.

The applicant’s position on permissibility

41. SGC’s primary position is that the proposed development is permissible pursuant to cl 6.21 of the IWLEP. It says that cl 6.21, by its application to certain areas within the E4 zone mapped as “Area 19”, operates to make certain business or office premises permissible in locations it considers suitable.

42. SGC relies on the general principles of statutory interpretation to understand cl 6.21. These principles apply to delegated legislation (4nature Incorporated v Centennial Springvale Pty Ltd (2017) 95 NSWLR 361; [2017] NSWCA 191 (4nature) at [15]). Principally, this involves a focus on the text of the clause and its natural meaning, starting with the actual words of the instrument in their context, having regard to the purpose of the provision: SZTAL v Minister for Immigration and Border Protection (2017) 263 CLR 1; [2017] HCA 34.

43. Having regard to the objective of the clause, SGC says that it operates to permit certain types of business and office premises in the E4 zone, on land that it considers suitable for that purpose by mapping it “Area 19”. SGC points out that it is therefore an exception to the general prohibition on those uses in the Land Use Table. Pursuant to cl 2.3(4), the Land Use Table is subject to the other provisions of the IWLEP, which allows cl 6.21 to operate to overcome the prohibition.

44. However, SGC contests the Council’s assertion that, to the meet the requirements of cl 6.21(3), the “creative purposes” has to be the dominant planning purpose to which all the activities are directed. SGC’s position is instead that the planning purpose required by cl 6.21(3) is “development for the purposes of business premises or office premises”. SGC says that the requirement for the development to “be used for creative purposes” does not describe a requirement for the purpose of the use, but rather for the form or type of the activity that is carried out.

45. SGC relies on ‘design’ as one of the listed uses, and on its definition in a creative context, taken from the Macquarie Dictionary (8^th Edition) as follows:

“2. To plan or fashion artistically or skilfully

…

10. The art of designing”

46. The definition of a ‘designer’, also from the Macquarie Dictionary, is:

“1. Someone who devises or executes designs, as for works of art, decorative patterns, dresses, machines, etc.”

47. SGC submits that whilst a fashion designer aims to ‘dress the body’, a hairdresser dresses a specific part of the body by styling, tinting, cutting, extending and perfuming hair (including stubble and beards). Referring to the evidence from interviews with hairdressers, SGC points out that a hairdresser must plan and then “fashion artistically or skilfully” the hair. Equally, SGC says that beauty treatments are a form of artistic design, principally of the face but can include other body parts, with the aim of beautifying.

48. In support of its position, SGC relies on the long history of hairdressing as a means of expression and a display of status or religion, including changes in style and treatment based on culture, historic events, religion and social movements. In doing so, SGC submits that these are all creative expression through the dressing of hair. SGC also points to beauty treatments as having this same expressive purpose.

49. For those reasons, SGC says that the proposed use for the purpose of a hair and beauty salon is one that will be used “for creative purposes”.

50. SGC’s position is also that if the proposed use is not permissible pursuant to cl 6.21, it would be permissible pursuant to either the existing consent, or the incorporated provisions as a result of the existing consent.

Clause 6.21 makes some business and office premises permissible

51. I accept the parties’ agreed position that cl 6.21 of the IWLEP overcomes the prohibition against business and office premises in the Land Use Table for the E4 zone if the requirements of the clause are met.

52. In understanding cl 6.21, it is important to focus on the text of the provision and its context within the IWLEP. As set out in 4nature [51]:

“Basic principles of statutory construction require that the language be read in context and having regard to the objective which it was designed to promote. However, the primary focus must remain upon the text.”

53. The starting point, by way of context, is that business and office premises are prohibited in the E4 zone pursuant to the Land Use Table. This is because they are a type of commercial premises, which is a nominated prohibited use in that table. Clause 2.3 of the IWLEP is the operative clause for the operation of the Land Use Table. At cl 2.3(1), it provides:

(1) The Land Use Table at the end of this Part specifies for each zone—

(a) the objectives for development, and

(b) development that may be carried out without development consent, and

(c) development that may be carried out only with development consent, and

(d) development that is prohibited.

54. Clause 2.3(4) then makes it clear that “This clause is subject to the other provisions of this Plan”. There is, therefore, scope for other clauses of the IWLEP to inform what development may be carried out only with development consent.

55. By using the words “Development consent must not be granted…unless…”, clause 6.21(3) is expressed in the negative. However, it has the same substance of a provision expressed permissibly. As stated by Giles JA in Strathfield Municipal Council v Poynting (2001) 116 LGERA 319; [2001] NSWCA 270, at [93]:

“Care must be taken lest form govern rather than substance. A provision in the form, “A building may be erected on land in a particular zone if the land has an area greater than a particular area” appears regulatory, whereas a provision in the form, “A building must not be erected on land if the land has an area less than a particular area” appears prohibitory, but the substance is the same.”

56. When having regard to the objective of cl 6.21, “to promote certain types of business and office premises in Zone E3 Productivity Support and Zone E4 General Industrial”, it is clear that this objective cannot be met unless cl 6.21(3) is understood to be permissive. Business premises and office premises are already prohibited in the E4 zone, and therefore the objective of cl 6.21 can only be met if cl 6.21(3) is understood as making them permissible, but only if the clause applies and if the requirement of cl 6.21(3) is met.

57. To interpret cl 6.21 in any other way would render the clause otiose with respect to the E4 zone. It would also render otiose the map of “Area 19” within the E4 zone, as there is no other clause within the IWLEP that operates with respect to Area 19.

58. I therefore consider that, whilst business and office premises are prohibited in the E4 zone, that prohibition is lifted if cl 6.21 applies and the requirements of cl 6.21(3) are met. There are three elements that need to be satisfied with respect to land within the E4 zone to meet the requirements of cl 6.21(3).

59. Firstly, the development must be for the purposes of business premises or office premises. This is essential to the first clause within cl 6.21(3), “Development consent must not be granted to development for the purposes of business premises or office premises”. That is, the end to which the land is seen to serve by the proposed development must be either “business premises” or “office premises” within the meaning of those terms in the IWLEP. It is in satisfying this requirement that questions arise concerning the characterisation of the use, including understanding the dominant purpose.

60. Secondly, it must be “on land to which this clause applies”. That is, the site must be mapped within Area 19 on the Key Sites Map.

61. Thirdly, the consent authority must be “satisfied that the development will be used for creative purposes”, and examples are provided. As such, the type of “business premises” or “office premises” that is proposed must be one that is used for “creative purposes”. My use of the word “type” is reflective of the objective of the clause, to promote “certain types of business and office premises”. Contrary to what is submitted by the Council, “creative purposes”, and the list of examples, are not land uses. Instead, they are the type, or form, of the business or office premises proposed. This requires having regard to the particular form of the development proposed.

62. Determining whether a particular proposed development is one that “will be used for creative purposes” is a question of fact and degree. Creativity itself exists on a spectrum. The best example of this is “publishing”, which is one of the examples provided in cl 6.21(3). Whilst office or business premises used for the publishing of law reports, which simply reproduce judgments already published by a court, may not be considered as being used for “creative purposes”, such premises used to publish the works of a new author of fictional romance may well be. The point at which a type of premises goes from the benign to one that is “used for creative purposes” is not easily defined, and therefore, the satisfaction required by cl 6.21(3) must turn on the facts of the particular type of office or business premises proposed.

The proposed development meets the requirements of cl 6.21

63. In applying cl 6.21 to the proposed development, I consider that the hair and beauty salon proposed meets the requirements of the clause. It is agreed that a hair and beauty salon is premises within the definition of ‘business premises’ in the IWLEP, and that the site is within Area 19. In addition, I am satisfied that “the development will be used for creative purposes”. I reach this state of satisfaction for three reasons.

64. Firstly, hairdressing, which is what occurs within the hair salon, involves skilful design. Both the evidence concerning the history of hairdressing, and the evidence of interviews from current hairdressers, demonstrate that the dressing of hair involves applying a design to the hair to achieve a style. ‘Design’ is one of the specific examples given in cl 6.21(3).

65. In Mila Contini, Fashion: From Ancient Egypt to the Present Day (1^st ed, 1965, Crescent Books), the history of how design techniques have been used to achieve hairstyles is described: by adornment, changing colour and/or sculpting to particular shapes. For example, in Greek fashion, “Elegant women used spirals of gold, or silver or bronze bands as ornaments in their hair” (at 35), and “both men and women bleached their hair with potash water, washed it with infusions of yellow flowers, and dried it in the sun, to make it lighter in colour” (at 51). This involved time and skill, and, for Roman women, “The delicate operation of dressing the hair was always performed by a skilled slave, who might be scolded, punished, slapped, and tortured or jabbed with pins if a lock was out of place or the parting was not perfect” (at 58).

66. Similarly, the interviews undertaken by Mr Gheorghiu and the statements made by current hairdressers make it clear that they see themselves as a design profession, and they work with a client’s face shape, complexion, hair quality and texture in order to determine an appropriate design and apply techniques to achieve a style in the hair.

67. The same is true of a beauty salon, where the design is in the transformation of the face and other body parts. Those who apply make-up are commonly known as ‘make-up artists’. A historic example, given in Mila Contini, Fashion: From Ancient Egypt to the Present Day, is that Roman women would apply a concoction of “barley, vetch, ten eggs, powdered stag’s antler, twelve narcissus bulbs, gum and honey, to give the complexion ‘a shining whiteness’” (at 58). In more modern examples, the Australian Wish Magazine credits the make-up artist for each of its shoots (Ex B, Tab J) and its April 2024 edition “lifts the lid on the not-so-secret men’s makeover business and the specifics of these trending “tweakments”” (Ex B, p.103).

68. Secondly, for both hairdressing and a beauty salon, there are a diversity of designs that can be applied and styles that can be achieved. In Mila Contini, Fashion: From Ancient Egypt to the Present Day it is clear that this diversity occurs across history and culture, and can be reflective of social movements. However, the diversity also exists within the application of design choices. This is described by Mila Contini in the following way, concerning the 18^th century (at 196):

“Hair styles grew to be the most important feature of eighteenth-century fashion. They changed continuously, according to the dictates of fashionable hairdressers. Every hair style had a name; when they had the added complication of poufs they might be called a la belle Poule; some hair styles had decorations as elaborate as sailing ships placed on top of the edifice; even the poufs had names which distinguished them. Every occasion prompted Leonard to invent new hair styles, like the one called ‘Inoculation’, when Lady Montagu, the wife of the English ambassador in Constantinople, came back with the news that in Turkey and other countries inoculation against smallpox was widely known and practised.”

69. The fact that there is diversity of styles that can be achieved means that creativity is applied in the design process to achieve a particular style. This is supported by the evidence from the interviews undertaken by Mr Gheorghiu and the statements made by current hairdressers. The current hairdressers include the following statements:

“When I engage with the client and ask what hair design and style they would like I am assessing them. For example their head shape and hair quality.” (Ex B, p.202)

“Based [on] the client’s request I also make recommendations and then decide what design could be achieved and how.” (Ex B, p.202)

“While cutting I consider whether I need to make changes taking account of the hair length, whether the hair springs up, how it moves, the shape, volume of hair and how the design looks as I am reducing the weight of the hair.” (Ex B, p.202).

“Everyone is different and there is not one hair cut that is the same and not one ‘size’ that fits all.” (Ex B, p. 203).

“When first assessing a client’s hair, before I begin any cutting, I take into account the following: face shape, lifestyle, skin tone/complexion, favourite features/features they want concealed, fashion, the health of their hair, the colour of jewellery they usually wear, budget, and the look they are going for.” (Ex B, p. 206).

“Some clients come into the salon and show me a photo of Kim Kardashian’s newest hairstyle, with that in mind, I often need to come up with a way to give the client something similar to Kim Kardashians hair but tailored to their individual features and budget.” (Ex B, p. 206).

70. That the dressing of hair to achieve a particular style is a creative endeavour is also supported by the awards received by hairdressers. For example, Ms Gahan won “Artistic Men’s Hairdresser of the Year”, and the Australian Hair Industry Awards use creativity as a judging criterion.

71. In relation to the beauty salon, there is also a diversity of styles that can be achieved through the application of different techniques. This is described in Australia’s Wish Magazine, May 2024 edition, in the following way:

“Stealth wealth” and “quiet luxury” were fashion’s big buzzwords in 2023, with the less-is-more “tasteful” and “discreet” aesthetic making its way onto our faces in the form of make-up-free perfect skin… But… At the most recent fashion shows in March, there was an attitude and fierceness we hadn’t seen in seasons…

our pick of the statement-making looks to recently emerge is “doll beauty”. The look was first spotted at Marc Jacob’s 40^th anniversary runway show in February, where the models wore massive fake eyelashes… and porcelain make-up.

… Cyrus… needs to be applauded for her equally adventurous approach to make-up. Cheekbones were contoured, skin given a golden sun-kissed glow, feathered eyebrows used to add drama and layers of mascara, worked root-to-tip, giving a false lash effect.”

72. The fact that both hairdressing and beauty clinics can apply and achieve a diversity of styles means that there is creativity involved in applying and achieving a particular style on an individual, such that the clinic is being used for creative purposes.

73. Thirdly, the style applied at a hair or beauty salon is a form of creative self-expression for the wearer. Whilst for some, the creative expression might be limited to one of conformity with the dominant hairstyle of the time (such as the ‘short back and sides’ of current times, or the comb-over of former decades), for others, it is an opportunity to express oneself through the transformation of hair (by a hair salon) or the face or other body parts (by a beauty salon). As stated by Mr Duong, a current hairdresser, “Your hair style forms part of your overall self-expression, fashion, look and we contribute to creating that self-expression” (Ex B, p.203). Therefore, a hair and beauty salon is a premises used for the purposes of creative self-expression.

74. For those reasons, I am satisfied that the proposed hair and beauty salon is a development that “will be used for creative purposes”. The particular user for the proposed development is Salon Lane, and the evidence is that it operates similarly to other hairdressing salons with both hair and beauty services, although it involves agreements with independent professionals (see Ex 2, p.10). There is nothing about the particular user that dissuades me from reaching this state of satisfaction.

75. Further, contrary to the Council’s position, to reach the satisfaction that “the development will be used for creative purposes”, there is no requirement for the creative purpose to be the dominant use in the way described in the Land Use Characterisation Planning Circular. That is because the question of satisfaction that “the development will be used for creative purposes” is not one of land use characterisation. The question of characterisation is confined to whether it is “development for the purposes of business premises or office premises”, and question of whether “the consent authority is satisfied that the development will be used for creative purposes” concerns whether the particular form of the development proposed meets the words of that clause, as explained above at [61] to [62].

76. For all of those reasons, I am satisfied that cl 6.21 of the IWLEP applies and the requirements of cl 6.21(3) are met, such that the general prohibition on commercial premises in the E4 zone is lifted and the development for the purpose of a hair and beauty salon is permissible with development consent.

Contentions concerning the desired future character, the public interest and the zone objectives

77. The Council also contends that the proposed development is inconsistent with the desired future character of the Marrickville Metro Precinct under the Marrickville Development Control Plan 2011 (MDCP) (contention 3), and that the proposed development is not in the public interest (contention 5). In contention 1, the Council also asserts that the proposed development is inconsistent with the objectives of the E4 General Industrial zone.

78. The Council points out that, in the MDCP the precinct is described as “largely industrial in nature” whilst containing a commercial development, the Marrickville Metro shopping centre. One of the elements of the desired future character, at Section 9.29.2 of the MDCP, is to “protect the integrity and on-going retention of the existing industrial zoned land”. The Council says that a hair and beauty salon is not consistent with the on-going retention of the existing industrial zoned land, and would also be contrary to the objective in the MDCP to “retain the existing employment generating land uses”.

79. Similarly, the Council submits that the proposed development is not consistent with the objectives of the E4 General Industrial zone, which include to “provide a range of industrial, warehouse, logistics and related land uses”, to “ensure the efficient and viable use of land for industrial uses”, and to “protect industrial land in proximity to… the Eastern Economic Corridor”. Whilst there is also an objective to “enable limited non-industrial land uses that provide facilities and services to meet the needs of businesses and workers”, the Council submits that to give “creative purposes” an expansive definition that extends to a hair and beauty salon would be contrary to the express objective for there to be “limited” non-industrial uses in the zone.

80. The Council’s evidence concerning these contentions largely relied upon a hair and beauty salon not being an industrial use, and not falling within the requirement of cl 6.21(3) to be “used for creative purposes”. Further, Mr Swan opines that if the hair and beauty salon is approved, “it will open up broad style uses that have a creative element which will blur the line between business/retail uses and permit them in industrial zones which will put upward pressure on rent and push out legitimate industrial uses within the zone” (Ex 2, p.11)

81. However, for the reasons expressed above, I have found that the proposed hair and beauty salon is a business premises that will be used for creative purposes. Clause 6.21 provides a specific exemption to the prohibition on commercial premises in order to “promote certain types of business and office premises” in the E4 zone on a limited number of sites, mapped as Area 19. The site is mapped as Area 19, and so it is ear-marked as a site that is appropriate for “certain types of business and office premises” despite its zoning as E4 General Industrial. Further, it is in the vicinity of other non-industrial uses, such as a children’s play centre and a gym. Contrary to the submission made by the Council, it provides employment opportunities by providing space for hair and beauty professionals to work their craft.

82. Accordingly, although it is not an industrial development, the proposed hair and beauty salon will not be out of character in the area, and will provide employment opportunities. The proposed development is also consistent with the objective of the E4 zone to “enable limited non-industrial land uses that provide facilities and services to meet the needs of businesses and workers”, as a hair and beauty salon is a business premises that meets the needs of individuals, including workers, through hairdressing and beauty services.

83. Mr Swan’s concern about pushing out “legitimate industrial uses within the zone” is not made out, due to the limited area that is mapped as Area 19 in both the E3 and E4 zone.

84. For those reasons, I do not accept the Council’s contentions concerning the desired future character or the public interest, or its position that the proposed development should be refused on the basis that it is contrary to the objectives of the E4 zone.

Development consent should be granted

85. For the reasons above, I am satisfied that the proposed development is permissible on the basis that cl 6.21 of the IWLEP applies and the requirements of cl 6.21(3) are met.

86. As such, I need not consider questions concerning the breadth of the existing consent and whether it encompasses the proposed use, or the questions concerning whether there is an existing use that can be altered or changed pursuant to the EPA Regulation 2021, although I acknowledge that there was time spent on these questions at the hearing.

87. Further, I have considered the desired future character of the Marrickville Metro precinct under Part 9.39 of the MDCP, the objectives of the E4 zone, and the public interest. There is nothing raised by the Council in relation to these matters that warrants refusal of the development application. The hair and beauty salon is a development that will be used for creative purposes, in an area mapped to promote “certain types of business and office premises” that will be used for those purposes.

88. The Council has raised no other contentions on which it says that the development application should be refused. Further, the parties have raised no other jurisdictional matters that may form a pre-condition to the grant of development consent. Accordingly, development consent should be granted subject to the conditions of consent, which are agreed.

89. The Court orders that:

1. The appeal is upheld.

2. The development application (DA/2023/0377) for the fit-out and use of the premises at 30-32 Murray Street, Marrickville for the purpose of a hair and beauty salon, including signage, is determined by the grant of consent subject to the conditions in Annexure A.

3. Exhibits 1 and 3 are returned, and the remaining exhibits are retained.

J Gray

Commissioner of the Court 

Annexure A

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Decision last updated: 20 December 2024