GEMSTED PTY LTD v THE COUNCIL OF THE CITY OF GOSFORD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, HANDLEY and Cripps JJA 4 December 1992, 25 February 1993 [1993] NSWCA 106 The issue on appeal was whether the use of a building with an attached jetty to be used for certain purposes was a "designated development" for the purposes of the Environmental Planning and Assessment Act. Held: The development was a designated development, it being a "marina" as described in Schedule 3 of the Regulation. Meaning of "marina" discussed. Land and Environment Court procedure discussed, the role of judges and assessors in that Court in its Class 1 and Class 4 jurisdictions referred to. Environmental Planning and Assessment Act 1979: s77(3)(d), s158 Environmental Planning and Assessment Regulation: CL70, Schedule 3 Land and Environment Court Act 1979: s36(5), s22, s38 The Australian Gas Light Co v Valuer General (1980) 40 SRC(NSW) 126 Bendixen v Coleman, Scott, Croft and Ors (1943) 68 CLR 401 Scott v Moses (1957) 74 WN(NSW) 101 HA Bachrach Pty Ltd v Council of the Shire of Caboolture (Queensland Court of Appeal, 12 November 1992, unreported) Leichhardt Municipal Council v Daniel Callaghan Pty Ltd (1981) 48 LGRA 29 British Ceylonese Ltd v Courtlands Ltd (1935) 52 RPC 173 Priestley JA I agree with Cripps JA. Handley JA I agree with Cripps JA. Cripps JA This is an appeal from Pearlman J in the Land and Environment Court declaring that development being: "A two storey building, with 25 metre jetty attached, to be used for the purposes of boat chandlery, kiosk, shipwright, outboard motor sales and services, marine upholsterer, yacht brokerage, sailing school, waterfront real estate agent, boat hire, marine engineer and marine electrician" was relevantly "designated development" as prescribed pursuant to s158 of the Environmental Planning and Assessment Act 1979 (the Act) and CL70 of the Environmental Planning and Assessment Regulation and that the development application made by Gemsted Pty Ltd (the appellant) to the Council of the City of Gosford (the respondent) was not validly made. S77(3)(d) of the Act provides that a development application in respect of a certain class of development referred to as "designated development" must be accompanied by an environmental impact statement (EIS) in the prescribed form prepared by or on behalf of the applicant. Where consent is sought for the carrying out of "designated development", the application must be notified to persons likely to be affected by the development and the EIS must be available for inspection and comment by interested parties. People who make submissions by way of objection have rights of appeal to the Land and Environment Court against a determination of a council granting development consent and to be heard in any appeal by the dissatisfied applicant. CL70 of the Regulation provides that the development described in Schedule 3 is declared to be designated for the purposes of the Act. 2 UNREPORTED JUDGMENTS Schedule 3 to the Regulation provides: "Development either for the undermentioned purposes or development of the undermentioned types: (1) marinas (comprising pontoons, jetties, piers or other structures (whether water based or land based), designed to provide moorings or dry storage for a total of 30 or more vessels used primarily for pleasure or recreation, or comprising (whether or not in addition to the foregoing) works such as slipways, hoists or facilities for the repair and maintenance of vessels, at which 5 or more vessels used primarily for pleasure or recreation are handled or are capable of being handled at any one time), or seaplane operations and any land based buildings or works associated therewith; but excluding development involving alterations or additions to any existing development, which alterations or additions, in the opinion of the consent authority, are of a minor nature and do not, to any significant extent, change the scale, size or degree of that existing development." The appellant is the lessee of land comprised in Special Lease 1986/4 Gosford situated at Brisbane Water Drive, Gosford. On 5 August 1991, the appellant made application to the respondent for a change of use of the subject land from "an oyster depuration plant" to a "waterfront business (marine centre)". On 23 September 1991 the appellant wrote to the respondent setting out in detail the nature of the proposed development. The letter was treated as part of the development application. It said: ".. Please find listed below the area number that is to be read in conjunction with plan enclosed - listed is the activity and proposed staffing level of each area: Office 1 Chandlery. Activity: Sale of boating equipment, anchors, life jackets, accessories etc. Estimated Staff 1 Office 2 Kiosk. Activity: Supplying coffee, food, drinks, ice, etc Estimated staff 1 Office 3 Shipwright. Activity: Light boat repairs and maintenance, varnishing, detailing etc. Estimated staff 1 Office 4 Outboard motor sales and services. Activity: Sale of outboard motors, service, maintenance, spare parts, etc. Estimated staff 1 Office 5 Upholsterer. Activity: Fabricating covers, sun awnings, fitting carpets, etc. Estimated staff Office 6 Yacht Brokerage Activity: Sale and insurance of boats. Estimated staff 1 Office 7 Sailing School Sailing and boat handling tuition Estimated staff 1 Office 8 Waterfront Real Estate Agent Specialising in listing, selling, renting, management of waterfront properties. Estimated staff 1 Office 9 Boat Hire Activity: House boat and fishing boat hire. Estimated staff 1 Office 10 Marine Engineer URJGEMSTED PTY LTD v THE COUNCIL OF THE CITY OF GOSFORD (Cripps JA) 3 Activity: Marine inboard motor service and maintenance, tuning, alignment, installation of auto pilots, anchor winches, etc. Estimated staff 1 Office 11 Marine Electrician Activity: Electrical service and maintenance to alternators, radios, batteries, marine electronics. Estimated staff 1 The above allocation of "activities to offices" may change should a tennant (sic) be more suitable in an office of different size or position. The ramp in front of office 1 is not designed or suitable for slipping boats. If the tenant of office 1 was to use it at all, it would be to launch trailerable boats, such as dinghys or runabouts, being tested or demonstrated. The 25 m jetty, as stated by the minister, is not for permanent mooring and would be used by all or most of the tenants. ie for arrival and departure of house boats, boarding sail training vessels, the servicing of vessels, detailing vessels, fitting covers, inspection of boats for sale etc. Yours faithfully GEMSTED PTY LTD (Signed) Graham Allan DIRECTOR" For present purposes, it is sufficient to note that the accompanying plan made it clear that the development for which consent was sought included the 25 metre jetty referred to in the abovementioned letter. The development application was refused by the respondent Council on 28 November 1991. The appellant appealed to the Land and Environment Court in its Class jurisdiction. Upon the Class 1 matter coming on for hearing, the respondent maintained that the application could not, as a matter of law, be considered by the Land and Environment Court on its merits because the development for which consent was sought was relevantly "designated development" and the appellant had failed to comply with the provisions of the Act with respect to the preparation and exhibition of an EIS and relevant persons had not been notified of the application. The Class 4 action the subject of the appeal was commenced. One can only speculate why the Council decided to have the issue resolved by a declaration in the Class 4 jurisdiction rather than by a reference of a question of law pursuant to s36(5) of the Land and Environment Court Act. Under s36(5) an Assessor may of his own motion or at the request of a party refer a question of law raised in the proceedings to the Chief Judge of the Court for a determination by a Judge. It is the ordinary practice of the Assessors of the Court to refer questions of law when they are asked to do so unless the application is viewed as without merit. I know of no case during the period I was associated with the Court that such an application directed to the question of the Court's power was not referred to a Judge of the Court. It may also be, of course, that the Council wished to keep open the more extensive appeal rights available to it in proceedings in the Class 4 jurisdiction. In Class 4 proceedings, there is a full appeal to this Court on fact as well as law. If a Class 1 case is heard by an Assessor, there is an appeal on a question of law from the Assessor to a Judge of the Court and thereafter to this Court but only by leave. A party to proceedings in the Class 1 jurisdiction heard by a Judge may only appeal to this Court on a question of law. In this case, the only question in the Class 4 proceedings was one of law, involving the construction of the development application and Schedule 3 of the Regulation. 4 UNREPORTED JUDGMENTS Accepting that ordinarily a litigant is entitled to pursue remedies open to it, it is difficult to see what reason could be advanced why the Council should not be required to pay any costs incurred by the appellant in the Class 1 proceedings thrown away by the Council's failure to take the jurisdiction point at the outset in those proceedings. The rules of the Land and Environment Court require the parties to raise questions of law at the callover and, unless they are raised there, provide that they can not be raised in the proceedings before the Assessor except by leave. The rules explicitly provide that where there is a dispute between the parties as to the power in the Court to grant the application before it, the Assessor shall refer the question to the Chief Judge. In my opinion, the failure of the Council to raise a question of power could quite properly be a circumstance justifying the Court making an order for costs against it in the Class 1 proceedings. However, the Class proceedings are not before this Court and there has been no appeal against the order for costs made by Justice Pearlman in the Class 4 proceedings. It is not inappropriate to refer to s22 of the Land and Environment Court Act 1979 which provides: "The Court shall, in every matter before the Court, grant either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters may be avoided." The issue for determination before Pearlman J and this Court on appeal is whether, as a matter of statutory construction on undisputed facts, the development the subject of the application to the respondent was relevantly "designated development" ie whether the development proposed is relevantly a "marina" as defined. Putting to one side so much of the definition as refers to "seaplane operations", there are, relevantly two limbs to the definition of "marina". The first refers to the provision of moorings for a total of thirty or more vessels used primarily for pleasure or recreation. The second is concerned with provision for the repair and maintenance of five or more vessels used primarily for pleasure or recreation. A claim was earlier made that the development was caught by the first limb. That claim was abandoned. The issue before both the Land and Environment Court and this Court is whether the proposed development fell within the second limb of the definition of "marina" viz whether it comprised "works such as slipways, hoists or facilities for the repair and maintenance of vessels, at which 5 or more vessels used primarily for pleasure or recreation are handled or are capable of being handled at any one time". It is not disputed that the jetty can accommodate more than five vessels. Mr Webster, on behalf of the appellant, submits that the word "facilities" should be notionally preceded by the words "other similar". Upon this submission, he argues that the development is not relevantly "designated development" unless there are facilities capable of taking vessels out of the water for repair and maintenance. He directs the Court's attention to what, in his submission, is the purpose of the Regulation, viz not to require extensive environmental assessment where "marinas" provide moorings for less than 30 vessels and where less than 5 vessels can be slipped for maintenance and repair. He submits that the word URJGEMSTED PTY LTD v THE COUNCIL OF THE CITY OF GOSFORD (Cripps JA) 5 "handling" in the definition demonstrates a legislative intent that the second limb of the definition is intended to apply only to activities involving the removal of boats from the water. I have already referred to the development application lodged with the Council. It is clear that the jetty is to be used for light boat repairs and maintenance of the type referred to in the application and is to be used "by all or most of the tenants" of the proposed commercial building. The services intended to be provided refer, in terms, to repair and maintenance of vessels. The development application describes how the repairs and services are to be provided. In my opinion, there is no occasion to read down the word "facilities" to limit its meaning to refer only to some mechanism whereby boats can be removed from the water. I do not think the word "handled" demonstrates a legislative intention that the second limb is directed to such "facilities" as submitted. It is not a misuse of language to refer to the jetty as capable of handling five boats or vessels. On the present application, the jetty is relevantly the "facility" for the sort of repairs and maintenance of vessels intended to be provided by the tenants of the building. It is, in my opinion, beside the point to argue that if the appellant had sought permission to use the jetty for a temporary mooring for reward and later sought development consent for the use of the building for the purposes stated in the present development application neither would be relevantly "designated development". The Court is presently concerned only with the development application before the Council. The application makes it clear that repairs and maintenance services are to be provided to vessels moored to the jetty. The circumstance that the range of repairs and maintenance services available will be less than would be available if the boats were removed from the water is, in my opinion, irrelevant. It is not suggested, nor could it be, that the services intended to be provided are merely "ancillary" to the commercial use. In deference to Mr Webster's argument, I referred to the possibility of two separate development applications being lodged, neither of which would be classified as "designated development" and the circumstance that that was irrelevant in the present case. However, I would not want it thought that it is my opinion that the provisions of the legislation can be circumvented by that means. First, because if the development application were lodged with respect to the building for use for the purposes presently claimed, a consent, if granted, could be conditional upon such services not being provided to boats moored to the nearby subject jetty. Second, because if conditions were not imposed with respect to where and how such services could be provided and the jetty was used for the repair and maintenance of vessels, then the jetty would be relevantly used for the purposes of "designated development" for which development consent had not been obtained. I am of the opinion, therefore, that the appeal should be dismissed. Before departing from the matter, there are some observations which I wish to make concerning the proceedings before Pearlman J and this Court and the waste of resources consequent thereon. There were two appeal books, each of approximately 250 pages. The Court was concerned only with the question of construction on what were undisputed facts. Pearlman J's judgment and the notice of appeal were contained in 13 pages. In the course of argument, counsel for the appellant and the respondent referred to no more than two or three other pages in the appeal books and then only for the purpose of explanation. The reproduction of 500 hundred pages was a waste 6 UNREPORTED JUDGMENTS of money. It included, not only the lengthy submissions made before Pearlman J but also affidavit material which was either not read or rightly rejected at the hearing. By way of illustration, an affidavit was sought to be read in which a person claiming to be an expert gave, or attempted to give, his opinion as to what the words meant in the definition of "marina". In particular, evidence was sought to be adduced as to what was meant by the words "facilities" where appearing in the definition. It was the duty of the Court to interpret and give full effect to the words used in the definition. The Court was not concerned with any particular custom or practice of a particular trade and the words were not used in any technical sense. Accordingly, it was not relevant to consider what certain members of the public may or may not understand the words to mean. Courts have always refused to admit evidence for the purpose of interpreting words used in common parlance. In The Australian Gas Light Co v Valuer General (1940) 40 SR(NSW) 126 at 137, Jordan CJ, after holding that the meaning of an ordinary English word is one of fact and not law, said: "This question is to be resolved by the relevant tribunal itself, by considering the word in its context with the assistance of dictionaries and other books, and not by expert evidence." Similar observations were made in Bendixen v Coleman, Scott Croft and Ors (1943) 68 CLR 401 (with respect to the meaning of the word "bottle") and Scott v Moses (1957) 75 WN (NSW) 101 (with respect to the word "perimeter"). In HA Bachrach Pty Ltd v Council of the Shire of Caboolture (Queensland Court of Appeal, 12 November 1992, unreported) the Queensland Court of Appeal criticised what was said to be a common practice in the Queensland Planning and Environment Court of receiving evidence from town planning witnesses of the proper meaning of provisions in a strategic plan. In Leichhardt Municipal Council v Daniel Callaghan Pty Ltd (1981) 46 LGRA 29 at 31 Hutley JA held that the meaning of the word "storey" in a planning instrument was not a matter for expert evidence. That observation was made in the context of a Class 1 appeal in respect of which the Court is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate (s38 Land and Environment Court Act 1979). A fortiori the observations of Hutley JA would apply in the Class 4 jurisdiction of the Court. I do not exclude the possibility that, in some planning instruments, there may be technical terms that can only be properly understood after expert evidence is given although I cannot think of any offhand. But however that may be, there is nothing technical about the words used to define "marinas". For years, courts have been concerned with the proliferation of "expert" evidence where the question is not one calling for expert evidence. Unfortunately, their endeavours to stem the flow of irrelevant material have not always been successful. In 1935 the House of Lords in a patent case deplored the time wasted and money spent on calling witnesses to express opinions as to the meaning of ordinary words (see British Celanese Ltd v Courtlands Ltd (1935) 52 RPC 173 at 196 to 198 where Lord Tomlin said: "The area of the territory in which in cases of this kind an expert witness may legitimately move is not doubtful... He is entitled to explain the meaning of any technical terms... He is not entitled to say nor is counsel entitled to ask him what the specification means, nor does the question become any more admissible if it takes the form of asking him what it means to him as an engineer or as a chemist... In the present case much time was occupied and substantial parts of the shorthand notes have been filled with questions and answers which in my opinion were not admissible... The URJGEMSTED PTY LTD v THE COUNCIL OF THE CITY OF GOSFORD (Cripps JA) 7 disadvantages of these methods were twofold. In the first place time is wasted and money is spent on what is not legitimate. In the second place there accumulates a mass of material which so far from assisting the judge renders his task the more difficult, because he has to sift the grain from an unnecessary amount of chaff. In my opinion the trial courts should make strenuous efforts to put a check upon an undesirable and growing practice." The same comments could, in my opinion, be made about what happened in the present case. S38 of the Land and Environment Court Act 1979 provides, inter alia, that the Court is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate. However, s38 does not authorise the receipt into evidence of irrelevant information. The opinion of an "expert" on the meaning of "marina" could have no probative effect. It follows therefore that even had the proceedings remained in the Class 1 jurisdiction it would have been irrelevant to the Court's decision what an expert planner thought the words in the definition of "marina" meant. Although, in the present case, Pearlman J was not diverted from the task she was required to undertake, if more attention had been given to what evidence was admissible and what was not, much expense would have been saved and the trial judge's attention would not have been taken up with determining what material should be rejected or in separating, as Lord Tomlin said, the wheat from the chaff. Furthermore, had more attention been given to what material was relevant for the appeal to this Court, the appeal book would have been 20 pages rather than 500 and much time and expense would have been saved for the benefit of the parties and the Court. Instead, the appeal books comprised nearly 500 pages of unnecessary and irrelevant material which was a waste of money and merely serves to increase the time taken by the parties and the Court in the preparation and disposal of the appeal. I am of the opinion that the appeal should be dismissed and that the appellant pay the respondent's costs. I would propose the following formal orders: 1. Appeal dismissed. 2. Appellant to pay the respondent's costs. Counsel for the Appellant: J Webster Instructed by: Berne Murray and Tout Counsel for the Respondent: SB Austin QC with PW Larkin Instructed by: PJ Donnellan and Co