Trieu v Hurstville City Council

[2002] NSWLEC 79

Land and Environment Court

of New South Wales

CITATION:	Trieu v Hurstville City Council [2002] NSWLEC 79
PARTIES:	APPLICANT Trieu RESPONDENT Hurstville City Council
FILE NUMBER(S):	10811 of 2001
CORAM:	Pearlman J
KEY ISSUES:	Question of Law :- characterisation of use - whether amusement centre - computer gaming
LEGISLATION CITED:	Hurstville Local Environmental Plan 1994
CASES CITED:
DATES OF HEARING:	27/03/2002
EX TEMPORE JUDGMENT DATE :	03/27/2002
LEGAL REPRESENTATIVES:	APPLICANT Mrs J C Kelly (Barrister) SOLICITORS Lloyd Lancaster RESPONDENT Mr P R Rigg (Solicitor) SOLICITORS Deacons

JUDGMENT:

IN THE LAND AND 10811 of 2001
ENVIRONMENT COURT

Pearlman J

OF NEW SOUTH WALES 27 March 2002

KHANH TRIEU

Applicant

v

HURSTVILLE CITY COUNCIL

Respondent

JUDGMENT

1. In these class 1 proceedings two preliminary questions of law have been raised by the applicant and one of those two questions is also raised by the respondent.

2. It has been agreed that the question raised by both parties should be dealt with first and it is that question that I address in this judgment.

3. The question is:

Whether the use of the premises is characterised as an “amusement centre” as defined in the Hurstville Local Environmental Plan 1994.

4. The premises the subject of the class 1 appeal are shop 4, 1 Crofts Avenue, Hurstville. Those premises fall within zone 3(b) City Centre Business Zone under the Hurstville Local Environmental Plan 1994 (“the LEP”) in which the use of premises as an amusement centre is prohibited.

5. Clause 5(1) of the LEP contains a definition of amusement centre. It is as follows:

5(1) Amusement centre means a building or place (other than a place in a dwelling) used for the purpose of playing
(a) Billiards, pool or similar games; or
(b) Electrically or mechanically operated amusement devices such as pinball machines and the like but only if more than 3 such machines are installed in the building or place.

6. There is no dispute that computer games are played on the premises. The evidence establishes that there are 33 computers which have games software and of these 10 computers have Internet access. That appears in an affidavit of the applicant sworn on 22 October 2001, a copy of which has been adduced in evidence as part of a bundle of documents tendered by the council. The evidence also establishes that the premises are to be used and are being used 24 hours a day seven days per week.

7. The rear part of the premises is used for the sale and repair of computer parts. There is in evidence a map of the premises that accompanied the development application lodged by the applicant. It shows the “repair computer area” and, at the front of the premises, an area which is denoted as Computer PC Gaming Area. The evidence establishes that the computers in use at the premises are linked by a local area network.

8. There was some evidence directed to establishing that the use of the premises for the playing of computer games was the predominant use. In my opinion that question is not the important question. The important question is whether or not the use of the premises for the playing of computer games falls within the definition in the LEP.

9. Mrs Kelly, who appears for the applicant, submitted that the focus in the definition is on the games which involve the shooting of balls and the electronic recording of scores. She derived that submission from looking at the definition as a whole, that is sub-par (a) with reference to billiards and pool and sub-par (b) with reference to pinball machines and the like.

10. Mrs Kelly furnished a definition of pinball machine from the Macquarie Dictionary which is as follows:

Any of various games played on a sloping board, the object usu. being either to shoot a ball, driven by a spring, up a side passage and cause it to roll back down against pins or bumpers and through channels which electrically record the score, or to shoot a ball into pockets at the back of the board.

11. I think, however, that the definition in the LEP is not governed by the words “such as pinball machines and the like”. The operative and governing words of sub-cl (b) of the definition in the LEP are “electrically … operated amusement devices”. The words which follow are, in my opinion, given by the draftsman as an example. But the important element of the definition is whether a building is used for the purpose of playing electrically operated amusement devices if there are more than three of those machines.

12. It is not really in dispute that there is a building, that there is playing of machines, that there are more than three, and that the computers are electrically operated devices. The question is whether, taking all the words together, they are “electrically … operated amusement devices”. The computers, of which there are 33, as I have said, are used for the playing of games. That seems to me to fall clearly within the word “amusement”.

13. The matter is not free of doubt. Indeed, the council itself has recognised this. In a report (which is at 67 of the Council’s bundle of documents) the council officer referred to the definition as being outdated. The council has taken steps, by way of amendment 33, to amend the definition but that is not determinative. The question is whether the playing of games on a computer is the playing of “electrically … operated amusement devices”. I have concluded that it is, for the reasons that I have given.

14. My answer to the question is therefore that the use of the premises is characterised as an amusement centre as defined in the Hurstville Local Environmental Plan 1994.

15. Having reached that determination the question is what happens with the rest of the proceedings and, indeed, the second question.

16. KELLY: We have been able to get instructions from our client and we’ve had discussions with Mr Rigg. I understand that the usual practice in class 1 is for a notice of discontinuance to be filed. I have had occasions before the Registrar lately where she’s actually dismissed a class 1 on the day. So in terms of saving of costs, that would be convenient to the Court but it’s a matter for the Court and the practice the Court wishes to follow. So it’s a matter of discontinuance or dismissal, each party to pay their own costs and we would ask the Court for three months to allow us to continue the use until we are able to move essentially. So that’s what we would ask from the Court. Mr Rigg agrees to discontinuance and each party to pay their own costs and he has something to say in respect of the other matters.

17. RIGG: The council would ask that two months would be appropriate in lieu of three. That’s all I put in that matter.

18. HER HONOUR: What is my power to say I dismiss the matter but I allow three months or two months, whatever I decide? I suppose the proper way to do it, Mrs Kelly, is to note an agreement between the parties that the applicant will have that time to move out of the premises and cease the use of the business. I am not empowered I think to make such an order, am I, as part of the dismissing of proceedings?

19. KELLY: I was just thinking whether the Court could dismiss the proceedings on the basis that each party pay its own costs and that the applicant be permitted to maintain the use of the premises until such a date. I can’t see any problem with that.

20. RIGG: I’d support that submission.

21. HER HONOUR: I think that so far as it concerns the difference between two and three months, I think three months is an appropriate time for the applicant.

22. I make the following orders:

(1) I dismiss the class 1 proceedings, 10811 of 2001 upon the basis that:

(a) each party pay their own costs, and

(b) the applicant be entitled to continue its occupation and use of the premises until 30 June, 2002.

(2) The exhibits may be returned.