Weriton Finance Pty Ltd v Wollongong City Council (No 2)

[2010] NSWLEC 1313

Land and Environment Court

of New South Wales

CITATION:

Weriton Finance Pty Ltd v Wollongong City Council (No 2) [2010] NSWLEC 1313

PARTIES:

APPLICANT
Wertion Finance Pty Ltd

RESPONDENT
Wollongong City Council

FILE NUMBER(S):

10231; 10459; 10460; 10461; 10462; 10463; 10464; 10465; 10528 of 2010

CORAM:

Moore SC - Morris C

KEY ISSUES:

APPEAL - DEVELOPMENT APPLICATION - WORDS AND PHRASES :- Definintions; Bed and Breakfast Accommodation.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Wollongong Local Environmental Plan 1990

DATES OF HEARING:

21-22 October 2010

 
DATE OF JUDGMENT: 

16 November 2010

LEGAL REPRESENTATIVES:

APPLICANT
Mr A Pickles, Barrister
SOLICITOR
D G Briggs & Associates

REPONDENT
Mr A Galasso SC
SOLICITOR
Kells the Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC
MORRIS C

16 November 2010

10231 of 2010
10459 of 2010
10460 of 2010
10461 of 2010
10462 of 2010
10463 of 2010
10464 of 2010
10465 of 2010
10528 of 2010 Weriton Finance Pty Ltd v Wollongong City Council

JUDGMENT

1 COMMISSIONERS: This aspect of the proceedings involves the determination of which of two possible paths for assessment should be followed for seven of the nine appeals against refusals of development applications made to Wollongong City Council (the council) that are the subject of these proceedings. Those seven development applications are described, in each of their applications to the council, as being for the purpose of a dwelling house to be used as “bed and breakfast accommodation”.

2 The totality of the site upon which the seven proposed bed and breakfast establishments are to be erected is zoned 6(c) Tourism Zone by the Wollongong Local Environmental Plan 1990 (the LEP). Within this zone, bed and breakfast accommodation is permissible with development consent but, on the other hand, dwelling houses are only permissible if they are “advertised development” and undergo an advertising and assessment process set out in cl 11 of the LEP.

3 If it is possible to assess, as Mr. Pickles, the applicant's barrister, submits, the applications for the bed and breakfast accommodation as involving a single integrated assessment for bed and breakfast accommodation with no separate precursor assessment of that element of the application which involves a dwelling house, then no consideration of the various tests set out in cl 11 is required.

4 On the other hand, Mr. Galasso SC submits, for the council, there is a necessary multi-step (but nonetheless simpler) process that is required to be followed. The steps, in the process envisaged by the council, are an assessment of each of these applications as dwelling houses, thus invoking the tests in cl 11, and followed, if and only if the dwelling houses are found to be appropriate to be approved, by an assessment of whether or not each of those dwelling houses should be permitted to be used for the purposes of providing bed and breakfast accommodation.

5 The choice between the two possible lines of assessment is stark and that proposed by the council places significant potential difficulties in the path of the applicant. In making that observation, one which we consider is, in any event, self-evident from the terms of cl 11, we are not making any merit observation whatsoever about any of these seven applications or any aspect of that which will now require to be considered in the cl 11 assessment that we have concluded is necessary for the reasons that follow.

The applicant's chain of reasoning

6 In making his submissions that a single assessment is required, as we understood them, Mr. Pickles relies on a sequential process flowing from a number of provisions of the LEP identified by him. That process is set out below.

7 Although not set out in the order that he presented his submissions, both in chief and in reply, we understood Mr. Pickles to be putting these propositions to us:

o the application that was made with respect to each of the seven allotments with which we are now dealing was a composite application for bed and breakfast accommodation – comprising the erection of a dwelling on the relevant allotment and its use for bed and breakfast accommodation;
o the classification of the various classes of development in the land use table are set by virtue of clause 9(2) of the LEP and that the development, as specified in the introductory words to this provision comprises the totality of the development for which the application has been made and that, as a consequence of the relevant provisions in the 6(c) Tourism Zone, bed and breakfast accommodation, being, on Mr. Pickles submission, the totality of the composite development described above, all falls within cl 9(2)(b) as requiring development consent only and, as it is such a composite development, does not fall within cl 9(2)c) and thus invoke application of cl 11;
o the definitions provision of the LEP, cl 6, in addition to defining a number of specified terms [several which are discussed elsewhere in this decision] makes it clear , in cl 6(2), that a reference to a building or place used for a purpose includes a reference to a building or place intended to be used for the purpose and that this assists in enabling a composite application to be made of the nature he contends it has been provided for in these bed and breakfast accommodation applications;
o the definition of development contained in s 4 of the Environmental Planning and Assessment Act 1979 (the Planning Act) includes, amongst other things, the use of land and the erection of a building. We understood him to be submitting that the fact that the six elements in this definition being put in the conjunctive means that, generally and in this specific case, the use of land and the erection of a building can be aggregated into a composite, single application; and
o the effect of s 81A(1) of the Planning Act is that by making such a composite application as earlier described enables the authorisation of the use proposed in this composite application. The terms of s 81A(1) are as follows:
(1) Erection of buildings
A development consent that enables the erection of a building is sufficient to authorise the use of the building when erected for the purpose for which it was erected if that purpose is specified in the development application, ………..

8 Mr. Galasso, on the other hand, advances a much less complex proposition. This submission arises from the definition in the LEP of the term “bed and breakfast accommodation”. This definition is in the following terms:

bed and breakfast accommodation means the use [emphasis added] of a dwelling-house, part of a dwelling-house, or any ancillary building to a dwelling-house, for the purpose of offering short term (maximum of one month) paid accommodation and homestyle hospitality to visitors, by the permanent residents of the dwelling-house, where:
(a) a maximum of 2 bedrooms are used for that use, and
(b) the number of occupants of the establishment, including the permanent occupants, does not exceed 7 at any one time, and
(c) breakfast is available for visitors.

9 Mr. Galasso's chain of reasoning is a simple one. It is that:

o for a dwelling house to be permitted to be used as bed and breakfast accommodation, first there must be a dwelling house; and
o for there to be a dwelling house, unless there is an existing dwelling house within the 6(c) Tourism Zone, there must be an approval for a dwelling house;
o an application for approval for a dwelling house in the 6(c) Tourism Zone is designated by the landuse table in cl 10 of the LEP to be advertised development; and
o consequently, for there to be an approval for a dwelling house in this zone, the requirement is that the assessment of such an application must be carried out by the process of assessment applying the various tests for advertised development that arise pursuant to cl 11 of the LEP.

Discussion and conclusion

10 Whilst we accept that it is possible, as is the case with these seven applications, to apply for use as bed and breakfast accommodation and the dwelling house for which the use is intended, as a single application, such a single application requires, in our view, the assessment process submitted as being necessary by the council.

11 We turn to consider the chain of reasoning that was put to us by Mr. Pickles. With respect to the proposition of a composite application, we accept that it is possible for the various elements here involved (that is the erection of a dwelling house in each instance and the use of that dwelling house as bed-and-breakfast accommodation) are capable of being dealt with on a single application form followed by a proper assessment process. What we are unable to accept is that the inclusion of those elements on a single form has the effect of fusing them into a single, composite form of development requiring a single assessment.

12 Indeed, it is long settled, as we understand it, that a single application can encompass a number of differing uses that may require different assessment processes. Indeed there may be a combination of uses that are permitted and prohibited with, if this were to be the case, potentially fatal consequences for such an application. Further, it is obvious from the land use table for the 6(c) Tourism Zone that a number of permitted development purposes in paragraph 3 could all be included within a single development application, for example advertisements and business signs (each a separate category of development within this part of the land use table) might be desirable, linked and potentially appropriate aspects of a range of the other development purposes within the same provision in the land use table. Nothing would preclude an application for all of those elements being dealt with in a single application but different heads of consideration would apply to the various elements.

13 Similarly, an application for, for example, bulky goods sales rooms or showrooms, a class of development that falls within paragraph 4 of the land use table for the 6(c) Tourism Zone might be expected to be attended by an application for advertisements or business signs for such a facility – with those, however, falling within paragraph 3. As a consequence, if, a single development application proposed a bulky goods sales room or showroom together with advertisements and business signs, the sales room would be required to be assessed against cl 11 whilst the advertisements and business signs would undergo an ordinary development assessment process.

14 Despite Mr. Pickles suggesting to us that, for example, his argument was assisted by the definition in the LEP of a motel, a definition that reads:

motel means a building or buildings used for the temporary or short-term accommodation of people away from their normal place of domicile, whether or not the building or buildings are also used for the provision of meals to those people or the general public,

we do not accept that this is the case.

15 A motel is a subspecies of commercial premises. It is to be excluded, as a consequence of being classified as a motel, from being dealt with with other commercial premises that are used for different purposes – this occurs as a result of the exclusionary element in the broader defining of commercial premises simpliciter. Nonetheless, it must be a building and, in our view, this definition must imply a capacity to approve buildings of an unspecified nature with that specific use. However, a different semantic structure is used in the definition of bed-and-breakfast accommodation – a definitional structure that has the effect of limiting the type of building capable of being so used to dwelling houses.

16 Mr. Pickles also relies on the definition of development in the Planning Act because that definition is in the conjunctive and brings together, relevantly for these proceedings, not only the erection of these buildings but also the use of the land upon which they are erected. In our view, this does not provide any assistance of significance because it is clear, in other instances, that erection of a building and demolition, for example, also two of the elements in the definition of development, may well require separate and differing assessments although capable of being included in a single application (for example, a proposal to demolish a heritage house and replace it with a contemporary one). Similarly, we remain of the view that the structure of the definition of bed and breakfast accommodation makes it clear that there are two separate steps to be undertaken.

17 Mr Pickles also relies on section 81A(1) of the Planning Act which reads, relevantly:

A development consent that enables the erection of a building is sufficient to authorise the use of the building when erected for the purpose for which it was erected if that purpose is specified in the development application ………….

18 In this statutory context, the sequence that would necessarily be followed, in our view, is one where the purpose for which the building is to be erected is to be a dwelling house and, once it becomes a dwelling house (and only once becomes a dwelling house) can it be authorised to be used for a purpose that has the existence of the dwelling house as a necessary prerequisite to that activity. We do not consider that this provision acts to prevent us reaching the conclusion that a two-step process and is mandated and, as a consequence, cl 11 is engaged.

19 For a building to be used as bed and breakfast accommodation, it must not only be a building but it must be a dwelling house. For it to be a dwelling house, it must satisfy the definition of dwelling house contained in the LEP. This definition is in the following terms:

dwelling-house means a building or buildings containing one but not more than one dwelling, on one allotment.

20 This definition makes it clear that a dwelling house is a distinct type of dwelling as there is a more general definition applicable to this latter concept. That definition is in the following terms:

dwelling means a room or number of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile, and includes a granny flat.

21 As a consequence, we are satisfied that, as a necessary prerequisite to consideration of an application for parameters to be used for bed and breakfast accommodation, we must be satisfied that those premises meet the tests to be considered a dwelling house as defined in the LEP rather than any other type of dwelling or building, more generally.

22 For a new building, the only way that that test can be satisfied, in our view, is if the proposed building is assessed against the necessary tests in the LEP and also any further assessment required pursuant to s 79C of the Environmental Planning and Assessment Act 1979 including any other relevantly applicable environmental planning instruments; development control plans; or council policies.

23 We are fortified in this regard because, in our view, if there were to be existing dwelling houses within the 6(c) Tourism Zone whether they were dwelling houses that had been the subject of a clause 11 assessment prior to approval or were dwelling houses that existed at pursuant to some pre-existing use rights that pre-ceded the requirement for a clause 11 assessment, such dwelling houses could apply to be used for bed and breakfast accommodation, consistent with that definition in the LEP, with only the necessity to satisfy the council, as part of that assessment, that the structure was, in fact, a lawfully existing structure satisfying the definition of dwelling house in the LEP. Such an existing dwelling house, if there were to be any in the 6(c) Tourism Zone, would not be required to be tested against the provisions of cl 11 of the LEP.

24 But, in addition, although it is not necessary for us to rely on this process of reasoning, we are satisfied that the assessment process advanced by Mr. Galasso is one that appears obvious from the ordinary language used in the LEP whilst that advanced by Mr. Pickles requires the adoption of a modestly convoluted interpretation path for its adoption.

25 Whilst by no means as complex as a path through the Hampton Court Maze, Mr. Pickles path to the adoption of his preferred method of assessment is, nonetheless, at variance with the preferred method of statutory construction adopted in the interpretation of environmental planning instruments such as this LEP. That preferred methodology, as we understand it, is that, when there is a clear, simple, unambiguous and logical construction available that sits comfortably within the overall framework of the instrument containing it, it is unnecessary and, indeed, entirely undesirable, to seek to stretch or manipulate the environmental planning instrument in order to obtain a construction that is at significant variance with the simple interpretation.

26 Application of that approach (in addition to the approach we have already adopted as demonstrating the fallacy in Mr. Pickles chain of reasoning) merely confirms, in our minds, that the chain of reasoning advanced by the council is not merely preferable but is mandated as the approach for us to follow.

27 It therefore follows that, in Matters Nos 10459-10465, the assessment of the structures proposed to be approved requires their assessment against (and satisfaction of the relevant tests in) cl 11 of the LEP. If each of these applications is successful and a dwelling house is found to be capable of being approved on the relevant Lot, when so assessed, then (and only then) can an assessment of the suitability for the proposed use as bed and breakfast accommodation be undertaken of any dwelling house found to be so capable.

Directions

28 It therefore follows that we should give directions (which may not need to be relied on by either party but which, for prudence, should be made) to provide for any additional evidence that may be necessary in the light of this preliminary decision.

29 We therefore direct as follows:

1. If the applicant wishes to provide any further evidence concerning matters dealt with in cl 11 of Wollongong Local Environmental Plan 1990, that evidence is to be filed and served by the close of business on Tuesday 23 November;
2. If the respondent wishes to rely on any further evidence concerning cl 11 of the Wollongong Local Environmental Plan 1990, such evidence is to be filed and served by the close of business on Tuesday 30 November; and
3. Whether or not the applicant relies on any further material pursuant to direction (1) and/or the respondent relies on any further evidence pursuant to direction (2), the town planners are to undertake a further joint conference to discuss any additional matters arising out of cl 11 of the Wollongong Local Environmental Plan 1990 as applied to the seven bed and breakfast applications subject to these proceedings and shall provide to the parties and file with the Court any further joint report on these matters by the close of business on Friday 3 December.

Tim Moore
Senior Commissioner

Sue Morris
Commissioner of the Court