THE YOUNG MENS' CHRISTIAN ASSOCIATION of CANBERRA INC. & ACT PLANNING and LAND AUTHORITY (Administrative Review)

[2011] ACAT 35

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

YOUNG MEN’S CHRISTIAN ASSOCIATION INC & ACT PLANNING AND LAND AUTHORITY & ORS (Administrative Review) [2011] ACAT 78

AT 35 of 2011

Catchwords:             ADMINISTRATIVE REVIEW-Planning and Development-Controlled Activity Order - Lease Purpose Clause- restricted user- ancillary uses- distinction between lessee and user- - offices for lessee management in clubhouse

List of legislation: Australian Capital Territory (Planning and Land Management) Act 1988 (C’wth), s.13

Planning and Development Act 2007

List of cases:             Gascone v Whittlesea Council [1993] 80 LGERA 367

Lizzio v Ryde Municipal Council [1983] 155CLR 211
Peter Kohlsdorf Pty Ltd & Liangis Investments Pty Ltd and Minister for Planning [2003] ACTAAT 29
Pacific Seven Pty Ltd v Knox CC (1993) 11 AATR 325
Springrange Pty Ltd v Australian Capital Territory
 [2010] ACTCA 17

TRIBUNAL:            Mr W.B. Loftus  Presiding Member
  Mr R. Nichols    Senior Member

Date of Orders:  11 November 2011

Date of Reasons for Decision:       11 November 2011

AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          

AT 35 of 2011

BETWEEN: YOUNG MEN’S CHRISTIAN ASSOCIATION INC

Applicant

AND:ACT PLANNING AND LAND AUTHORITY

Respondent

AND:YARRALUMLA RESIDENTS  ASSOCIATION INC.

Party Joined

TRIBUNAL:            Mr W.B. Loftus  Presiding Member
  Mr R. Nichols    Senior Member

DATE:11 November 2011

ORDER

1. The decision of the respondent of 9 March 2010 is set aside and substituted by the following order:

That the Young Men’s Christian Association of Canberra Incorporated (the Association) comply with the provisions of paragraph 4(a)(i) of its lease of Block 1 Section 18 Division of Yarralumla by, inter alia, not using the premises for the purpose of the head office or the general administrative functions of the Association.

………………………………..

Mr W.B. Loftus

Member

For and on behalf of the Tribunal

REASONS FOR DECISION

1. The Young Men’s Christian Association of Canberra (“YMCA”) is the applicant who has sought a review of a decision by the ACT Planning and Land Authority (“ACTPLA”) on 9 March 2011. The decision was made pursuant to section 355 of the Planning and Development Act 2007 (“the P&D Act”) to make a Controlled Activity Order which directs the applicant to:

   Comply with clause 4(a)(i) of the lease by not allowing the land to be occupied by persons or entities that are not undertaking activities that is(sic) not exclusively the activities of the YMCA Sailing Club.

2. The land the subject of the Order is Block 1 Section 18 Yarralumla for which the YMCA is the lessee and has an area of 2650 square metres.  Erected on the land is a two storey building which is the club house of the YMCA Sailing Club (“the sailing club”)

3. The YMCA was represented in this matter by Mr C. Erskine SC of Counsel.  ACTPLA is the respondent and was represented by Mr P. Walker of Counsel. The Yarralumla Residents Association (“YRA”) was a party joined and was represented by Dr Wright.

4. The matter was heard on the 25 to 28 October 2011.  The premises were inspected by the Tribunal in the presence of the parties.  Evidence was given on behalf of the applicants by Dr R. Thompson, a Commodore of the sailing club, Ms McCombe, the CEO of YMCA Canberra, and Mr H. Balfour, sailing instructor and employee of the YMCA.  For the YRA, evidence was given by Ms E. Tulip and Mr P. Fitzwarryne who are  both longstanding members and previous office holders of the sailing club.  No witnesses were called by the respondent.

Background

1. The lease of the land for Block 1 for a club house for the sailing club was first granted  to the YMCA in 1965.  Around that time the sailing club had been formed and under arrangements with the YMCA, not in evidence before the Tribunal, established a club house on the land in 1966.  Subsequently, new leases have been granted, the current lease being issued in 2004 and this also incorporates the adjoining Blocks 2 and 3.

2. The sailing club is an unincorporated body.  It is clear that in early days it enjoyed a relatively autonomous existence pursuing its interest in erecting the club house, sailing, conducting racing events and sail training, particularly for children. Certain aspects of the club’s existence, including some financial matters operated under delegation from the YMCA.  The evidence indicated that due to the changing nature of society, the Constitution of the YMCA, and issues such as insurance, child safety, and financial accountability, the YMCA in 2004 revoked the delegations.  A new YMCA Sailing Club constitution was adopted.  From that time the club’s activities were managed as a committee of the YMCA.  The CEO of the YMCA is a member of the Sailing Club Executive committee and had powers of veto over it.  The YMCA continued to identify the sailing club’s financial affairs and budgets within a separate and distinct reporting function. As a result of these revised arrangements, some degree of ill feeling by some sailing club members has arisen.

3. The YMCA is an organisation which provides a wide range of community services at a variety of locations within Canberra.  It has a staff which varies in number but has been in the range of 250-400 people, many of whom are casual. Whilst these employees are distributed across the different work places in Canberra, the YMCA management team has been operating from premises in Hackett which were part of the former primary school.

4. Ms McCombe gave evidence that the club house needed refurbishment and this included the need to meet current standards regarding food handling and storage areas, disability access and disability toilets.  For some years, the YMCA has considered the possibility of moving its management team to the upper floor of the club house.  This in part was to help justify and provide funding for a refurbishment that would benefit both the sailing club facilities and provide better accommodation for the YMCA management team than its present premises.

1. In 2009, the YMCA decided to proceed with the refurbishment and office fitout.  It received a works approval from the National Capital Authority on 06/07/2010 and subsequently completed the works.  The offices have not been occupied as a result of the issue of the Controlled Activity Order.

Existing Use prior to Refurbishment

10.The lower floor contains a large room designated as the sailors’ room, which is the primary focal point for sailor’s briefings, instruction, post sailing gatherings and  general social interactions.  Its use and furnishing is functional for both wet and dry sailors.  It is adjoined by a kiosk. There are male and female change rooms and toilets as well as some small offices for a chandlery, race desk and recreation office which is also used for small group instruction. 

11.

The upper floor, prior to refurbishment, contained a large room known as the Regatta Room which took up the majority of the upper floor;  it was approximately double the size of the Sailors room below. There was an associated kitchen, chair store, toilets and one office.  There is a balcony on three sides with access to the Regatta Room and with an external staircase.  Evidence was given about the past use of the Regatta Room for sail training, sail measurement, race presentations and as a function room for sailing club functions, member’s private functions as well as community hire.  The YMCA has also used it for fitness classes.     

 

Proposed Use

12.The lower floor has been reconfigured, particularly for the kiosk, toilets and access. The sailors’ room was unchanged in dimensions.  The lower floor is intended to remain for sailing club purposes only, other than the entry which serves both upper and lower floors.

13.The upper floor of the club house has been partitioned in accordance with plans provided to the Tribunal.  The works recently carried out include a lift from the ground floor to facilitate disabled access.

14.Ms McCombe gave evidence about the functions of the YMCA management team that is proposed to occupy the upper floor of the club house. It is a group of 6 management positions and a receptionist. There is also a space for the Sailing Instructor.  Her evidence included a chart of the organisational structure. The YMCA provides a wide range of community and recreational services which includes accommodation, childhood learning centres, after school care, health and fitness classes, opportunity shops and two recreational clubs, namely, the sailing club and the Canberra Runners Club. The activities operate across a variety of locations throughout the city. Through a number of management layers, the various activities are ultimately managed by the Management team which includes some shared service managers, particularly for finance/IT and human resources. Each of the management team members have some functions which relate to the sailing club and  in Ms McCombe’s evidence the time spent in exclusively sailing club administration varies between 3.8% and 7.5% of their time.

15.Ms McCombe described how the management team could be accommodated but indicated that this had not yet been finally decided.  The largest office would be occupied by herself as CEO but available also for use by the sailing club Commodore.  Two other partitioned offices could be occupied by the Human Resources Manager and Finance Manager.  The open office would be occupied by 4 other management team officers as well as Mr H. Balfour, the chief sailing instructor, who is a YMCA employee.

16.The upper floor layout now comprises:

Office for CEO  22.6  sq m.
2 offices for HR and IT managers  25.9 

Training Room  58.0 

Training Room breakout area/Reception  38.4

Open general office for other staff  61.3

Lobby/Reception/toilets and server store   72.4

Total  278.6 sq m.       

17.

The training room and break out area are available for both the YMCA generally and the sailing club.  According to Ms McCombe, the sailing club would have the priority.  Whether or not the training room should be seen as a facility essentially for the sailing club and whether the YMCA use conflicted with it, was a matter of some dispute.  The evidence of Mr Thompson and

Mr Balfour is that it will be used for the indoor training and instruction particularly for weekend and school holiday children’s training courses.

Ms Tulip and Mr Fitzwarryne expressed doubts as to the suitability of the upstairs room for sailing training and emphasised that sailors were frequently wet during training and that an upstairs training room would not have the convenience of the downstairs area with its direct outside access and proximity to change rooms and toilets.  Mr Balfour confirmed that a typical training programme involved regular rotations between on and off water training during any training session.  Mr Balfour advised that the sail training season is from September to April.  The room could be used for other training courses such as motor boat handling, race office training and radio operator courses. These would most likely be evening or weekend courses. The evidence was also that the sailors’ room below was the primary space used for this purpose in the past rather than the upstairs Regatta Room.  Mr Balfour identified the likely provision of audio visual equipment in this room as making it possible to upgrade instructional techniques. He thought the room would also be a good training venue because of the separation from the sailors’ room, which often had other users socialising and using the kiosk.  It can be accessed via an external staircase to the balcony.

18.The training room will, therefore, be available to the YMCA for the majority of time during normal business hours other than during school holidays. It can be concluded that it will be primarily used for YMCA management purposes.

19.In summary, it could be said that the entire upper floor is available to the YMCA management team function, other than that it includes a space within the general office for the sailing instructor. The training room is intended to be a shared facility but it is unlikely to be used by the sailing club in office hours except during school holidays. The Tribunal notes that the fitout as a carpeted, air-conditioned series of rooms is of the character of commercial offices.

The Lease and its Purpose Clause

20.

The current lease contains a purpose clause that contains two parts.

Clause 4(a)(i) refers to Block 1; clause 4(a)(ii) refers to Blocks 2 and 3 and is of no relevance to these proceedings other than to note that they are to be used for a boatshed and associated activities of the lessee.

21.Clause 4(a)(i) is:

To use that part of the premises known as Block 1 only for the purpose of a club house for occupation exclusively by the YMCA Sailing club as its base for sailing operations on the adjacent Lake and within these premises affording areas for recreation instruction light refreshment management locker room and toilet facilities storage for ministration to and the fabrication of members’ club and visitors’ craft and for associated light boat handling facilities and vehicular parking;

22.Mr Erskine submitted that the central issue in this case is whether the Crown lessee’s proposed use of the sailing club is expressly permitted by the purpose clause or to the extent that it is not, is permitted as an ancillary use.  He cited Springrange Pty Ltd Australian Capital Territory [2010] ACTCA 17
(20 August 2010) at pp 12-15, to argue that the lease is to be interpreted within its four corners without regard to any extrinsic material. He did this in part to rebut the view put by the YRA that the Tribunal should consider the provisions of the National Capital Plan, in particular, the Yarralumla Bay Master Plan in establishing whether the use should be permitted. He submitted that section 13 of the Australian Capital Territory (Planning and Land Management) Act 1988 (C’wth) preserved the rights to use land in accordance with a lease issued prior to the National Capital Plan coming into effect. The Tribunal agrees with this view.

23.There was no dispute that the use permitted by clause 4(a)(i) is a “club house” and the words that followed thereafter served to clarify what facilities and activities the club house could encompass.

24.Mr Erskine rejected the view that the expression “exclusively” could mean that only the sailing club could occupy the premises and that it could not exclude the YMCA itself.  He submitted that the purpose clause should be interpreted in the context of the whole lease and that the lease itself contemplates users other than the sailing club.  He noted that the opening words of the lease given to the Crown lessee, i.e. the YMCA,  “all that piece or parcel of land... to hold unto the lessee for the term...to be used by the lessee... for the purpose set out in Clause 4(a)...”.  He further noted Clause 4(b) which foreshadows the possibility of other users and Clause 4(a)(i) where visitor’s craft are mentioned. 

25.Mr Erskine’s view was that a likely meaning of “exclusively” was that it is only the YMCA Sailing Club as distinct from any other sailing club which may use the clubhouse as its base. Notwithstanding, he submitted it was not necessary to determine its precise meaning but rather it is sufficient to determine that it does not prevent the proposed ancillary use which, in his submission, is the character of the YMCA’s proposal.  Dr Wright submitted that “exclusively” should be accepted as restricting the use only to the sailing club. Mr Walker did not press a view on the matter.

26.The Tribunal accepts that Mr Erskine’s argument may have some force as to the rights of the YMCA as lessee.  However, even without the inclusion of the word “exclusively”, the clause can be seen to limit the use to the YMCA Sailing Club.  For reasons explained below, the Tribunal takes the view that a distinction can be made between the YMCA and the sailing club and that is a distinction reflected in the lease.  The lease purpose can therefore be seen as very narrowly focussed on the club house as a base for the club’s sailing activities.  It is the Tribunal’s view that if the YMCA, as a broader based organisation, has any rights to use the premises they need to be either explicit in the lease or else as clearly ancillary to the club house. 

The Organisational Relationship between the YMCA and Sailing Club

27.The applicants provided evidence by Ms McCombe to demonstrate that the sailing club was not a separate entity but a sporting club under the Constitution of the YMCA and under the control of its Board.  As such, all its actions are subject to the approval of the Board. The Rules of the YMCA Sailing Club 2005 were tendered and these demonstrate at 1.1 that the sailing club Committee is a Committee of the YMCA and at 2.2 that the sailing club is a sporting club of the YMCA.  Mr Erskine went so far as to say that when we talk of the sailing club we are really talking about the YMCA.

28.Mr Walker emphasised that the sailing club had a clearly separate factual identity and this was demonstrated by the YMCA itself in keeping distinct financial accounts and by its reporting systems to the Board. It had operated with varying degrees of autonomy over the years. The YRA were of the same mind as the respondent.  It tendered a copy of the YMCA Sailing Cub Constitution of 1966.  This shows that the sailing club was at that time an Associate Club of the YMCA. That constitution did not make the club a Committee of the YMCA nor was there YMCA representation on the Club Committee. The focus of the members of the club was clearly on the sailing and training aspects and the fact that the YMCA later supported it through corporate services in particular did not take away from the separate identity. 

29.The Tribunal notes the different approach of the parties but does not consider that trying to reconcile the present legal status with the historical perspective assists. The Tribunal does not accept that the two are indistinguishable.  The extent of the sailing club’s autonomy is in the hands of the YMCA. It has varied over time, and could vary again in the future if the YMCA so wishes.  Clearly, the lease makes reference to the YMCA as lessee with attendant rights and responsibilities and also to the sailing club in prescribing the use permitted.  That distinction made at the time of the granting of the lease can still be made today even if the sailing club is described in the Club rules as being a “committee” of the YMCA.

YMCA Management  as an ancillary use

30.In submissions related to the meaning of the term “ancillary use”, the parties all referred to Peter Kohlsdorf Pty Ltd & Liangis Investments Pty Ltd and Minister for Planning [2003] ACTAAT 29 (3 June 2003). At para 61, Peedom, President, says: “The fact that the use of land for a particular purpose is not expressly permitted by the purpose clause of a lease will not necessarily exclude that use as a lawful activity if it is a use which is ancillary to one which is expressly permitted.  An ancillary use, when identified is, in planning terms, not a separate use (see Gascone v Whittlesea Council [1993] 80 LGERA 367 at 372). Whether a use is ancillary to a permitted use is a question of fact and degree (see Lizzio v Ryde Municipal Council [1983] 155CLR 211 at 217.

31.The parties drew particular attention to a quotation in Kohlsdorf from the Victorian Civil and Administrative Tribunal decision in Pacific Seven Pty Ltd v Knox CC(1993) 11 AATR 325.  That case as quoted in para 62 of Kohlsdorf identifies at 329 “two types of activities which are commonly considered to be ancillary uses....The first is where the ancillary activity is quite different to the activities constituting the primary use of the property but are a necessary adjunct.....The second type of ancillary uses are those types of activities which grow out of or develop from the primary use and are intended to enhance it.”   

32.Mr Erskine argued that the proposed use is expressly permitted as a principal use to the extent that the 7 management staff of the YMCA working at the sailing club carry out functions related to the management of the sailing club.  Accordingly, he says, “the ancillary use of the proposed use is the activities of the management staff unrelated to the management of the sailing club”. This proposition, in the Tribunal’s view, does not meet the test of either of the two types of ancillary use identified in Kohlsdorf above.

33.In the Tribunal’s view, the co-location of the Management team with the sailing club is not a necessary adjunct but merely a convenient one.  Presumably, it could be equally convenient for the Management team to co-locate with some other of the YMCA’s activities. Nor does the Tribunal accept that the co-location of the management team grows out of or develops from the primary use.   Its major functions are related to activities elsewhere which are unrelated to the sailing club. The sailing club may be enhanced by the availability of an upgraded training room, and the proximity of the office of the sailing instructor but there is no evidence that the sailing club found substantial difficulty without them.  The enhancement is not of such magnitude as to justify such a large scale adjunct to the primary use. The Tribunal does not accept that in relocating to the sailing clubhouse the financial saving to the YMCA in rental charges is necessarily a proven benefit to the sailing club.

34.Turning to the proportion of the building to be occupied by the YMCA,

Mr Erskine suggested that the YMCA management function would occupy only 17% of the total building.  In the Tribunal’s view, this is a very narrow view of what the YMCA may occupy.  As a generalisation it could be said that, the evidence shows that, outside school holidays, the YMCA would be able to occupy and use the whole of the upper floor, approximately 50% of the building. The exception is the sailing instructors’ work space.  We note

Mr Balfour’s statement that the sail training season is from September to April and he normally takes the winter off. There was no evidence to suggest the use of the upper floor by the sailing club during business hours for this period.

Conclusion

35.The Tribunal has concluded that the lease purpose clause has a very deliberate and narrowly focussed purpose clause for a club house only, specifically to be used by the YMCA Sailing Club.  Whilst the sailing club is a part of the YMCA, and sailing instruction is carried out by YMCA staff as well as some of its ancillary functions, nevertheless, the sailing club is a separately identifiable group.  The parent body, the YMCA, has no rights to use the land other than for those purposes specifically identified in the lease.  To the extent that ancillary uses are permitted, they should be closely associated with the primary use.

36.The Tribunal considers that the scale and character of the function to be carried out by the YMCA management team should not be considered to be an ancillary use.  The function of the YMCA management team is primarily focussed on unrelated activities elsewhere and the fact that a small proportion of its time relates to the sailing club does not make the totality an ancillary use.  The proposed use does not derive from the use of a sailing club, as permitted by the lease, it is not a necessary adjunct and the scale of its occupation is disproportionate to the principal use. 

37.Mr Walker has suggested that the order issued by the respondent might have been better worded to achieve its purpose and has suggested an alternative, if the Tribunal is minded to reject the applicant’s case. There was no objection to his suggestion.  The Tribunal adopts his proposal.

………………………………..

Mr W.B Loftus

Member

For and on behalf of the Tribunal

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A  FILE NO:      

APPLICANT:               Young Men’s Christian Association

RESPONDENT:           ACT Planning & Land Authority

PARTY JOINED:        Yarralumla Residents Association Inc

COUNSEL APPEARING:                 APPLICANT:          C Erskine SC 

RESPONDENT:      P Walker        

SOLICITORS:  APPLICANT:          

RESPONDENT:      

OTHER:  APPLICANT:          

RESPONDENT:      

PARTY JOINED:     Dr Wright

TRIBUNAL MEMBER/S:              Mr W.B. Loftus         Presiding Member
  Mr R. Nichols             Senior Member

DATE/S OF HEARING:         25-28 October 2011    PLACE: CANBERRA

DATE/S OF DECISION:         11 November 2011     PLACE: CANBERRA

PART B

RECOMMENDATION:

FULL REPORT ( )       CASE NOTE ( )        UNREPORTED DECISION ( )

COMMENTS: