Land and Environment Court of New South Wales CITATION : Swansea RSL Club & Rosecorp Pty Limited v Council of the City of Lake Macquarie [2005] NSWLEC 755 APPLICANTS Swansea RSL Club Rosecorp Pty Limited PARTIES : RESPONDENT Council of the City of Lake Macquarie FILE NUMBER(S) : 10196 of 2005 CORAM: Talbot J Development Application :- whether existing use rights defeated by terms of LEP relating to mining and dual occupancy - application of heritage provisions of LEP - whether permitted club use can include residential flat buildings as ancillary. KEY ISSUES: Existing Use:- whether existing use defeated by terms of LEP relating to mining and dual occupancy. Environmental Planning and Assessment Act 1979 Interpretation Act 1987 LEGISLATION CITED: Liquor Act 1982 Registered Clubs Act 1976 Baker Kavanagh Architects Pty Ltd v Waverly Council [2004] NSWLEC 662; Foodbarn Pty Limited v Solicitor General (1975) 32 LGERA 157; CASES CITED: Kembla Coal and Coke Pty Limited v Wollondilly Council (1994) 84 LGERA 263; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; Woollahra Municipal Council v Minister for the Environment (1991) 23 NSWLR 701 DATES OF HEARING: 18/11/2005, 9/12/2005 DATE OF JUDGMENT: 01/31/2006 APPLICANT Mr M Craig QC with Ms S A Duggan (Bar) and Mr M Seymour (Bar) SOLICITORS Deacons LEGAL REPRESENTATIVES: RESPONDENT Mr T F Robertson SC with Ms J Jagot (Bar) SOLICITORS Lake Macquarie City Council JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Talbot J 31 January 2006 10196 of 2005 Swansea RSL Club & Rosecorp Pty Limited v Council of the City of Lake Macquarie JUDGMENT 1 Talbot J: Swansea RSL Club and Rosecorp Pty Limited ("the applicants") propose to carry out development on land at Catherine Hill Bay in the City of Lake Macquarie being Lot 2031 DP 841175 and Lot 2 Section 1 and Lot 1 Section K DP 163 together with Lots A and B DP 384745 comprising an area of approximately 5.5 hectares within mining lease CCL 706. 2 Coal mining commenced at Catherine Hill Bay in 1872 and a coal preparation plant was constructed on the land in 1954. 3 Development consent for "coal preparation and coal handling facilities, reject emplacement and related facilities" on the subject land and other land was granted on 9 December 1988 (DA 87/0184). Development consent for "modifications to coal preparation plant reject emplacement and related transport facilities and water supply pipeline" on the subject land and other land was granted on 9 December 1988 (DA 87/0185). A modification of the development consent for coal preparation and coal handling facilities, reject emplacement and related facilities (DA 87/0185) was granted under s 102 of the Environmental Planning and Assessment Act 1979 ("the EPA Act") as it then was on 4 August 1991. Coal extraction from two of the mines within the mining lease CCL 706 ceased in 2002 whereas one mine, the Chain Valley Mine, is still operating. The coal preparation plant ceased operation in mid July 2002. 4 On 21 February 2003 the Minister for Mineral Resources granted consent to suspend mining operations in the area of the Wallarah colliery holding based within CCL 706 subject to conditions including the preparation of a Mine Closure Plan and that all closure works and rehabilitation of the two closed collieries and the Catherine Hill Bay Coal Preparation Plant and associated infrastructure was to be completed within two years of the approval. Works required to be undertaken under the Mine Closure Plan are continuing and still to be completed. 5 The development application the subject of the proceedings is for:- (a) The conversion, extension and change of use of 2 existing buildings at the Catherine Hill Bay Coal Preparation Plant into a registered club with a gross floor area of 5,329m2 and sports club with a gross floor area of 2,379m2 with bowling green, landscaping and associated parking; (b) 96 residential apartments over 5 levels with associated car parking; (c) subdivision to amalgamate the existing lots that are the subject of the application into 3 lots. Planning controls 6 The following history and explanation of current town planning controls is agreed:- Town planning controls first applied to Catherine Hill Bay with the gazettal of the Northumberland County Planning Scheme (NCPS) November 1960. Under the NCPS the Land was zoned 1(c) Non –urban village. NCPS was amended by the gazettal of Northumberland Local Environmental Plan No.1 (Northumberland LEP) on 21 August 1981. Under Northumberland LEP the Land was zoned 1(c) Non-urban village. Northumberland LEP was repealed with the gazettal of Lake Macquarie Local Environmental Plan 1984 (LEP 1984) on 17 April 1984. Under LEP 1984 the Land was partly unzoned (Crown roads), part 7 (c) Environmental Protection (Coastal Lands) Zone and part Industrial (Special Industry 4(b) – Coal Mining Zone. LEP 1984 was repealed by Lake Macquarie Local Environmental Plan 2004 (LMLEP 2004) which was gazetted on 19 March 2004. Under LEP 2004, the Land is zoned part 7(1) Conservation (Primary) Zone and part 7(4) Environmental (Coastline) Zone. Pursuant to clause 15 of the LMLEP 2004 ("clubs") are permissible with development consent within the 7(4) Zone. Pursuant to clause 15 of the LMLEP 2004 "residential flat buildings" are prohibited within the 7(4) Zone. 7 Preliminary issues raised by the respondent council can be identified in two categories. The first category relates to whether the land to which the development application relates has the benefit of existing use rights. The second category of issues relate to whether the proposed residential development is permissible as a use ancillary to a club which is a permissible use with consent in the 7(4) Zone or additionally and alternatively is a use which may be permissible pursuant to the heritage provisions of the LMLEP 2004 by virtue of the presence of heritage items on the land. Argument has proceeded on the assumption that all proposed development will be located outside the area hatched on the LEP map and wholly within the 7(4) zone. The hatched area is within the Coastal Acquisition Area to be acquired by the Minister. 8 The issue raised by the council with respect to existing use is as follows:- (a) Whether the land to which the development application related is subject to existing use rights pursuant to s.106 of the Environmental Planning and Assessment Act 1979 ("the Act"). (b) Without affecting the generality of 1(a), whether the Lake Macquarie Local Environmental Plan 2004 ("LMLEP 2004") provides that the carrying out of the mine and development required for the purposes of a mine, with immaterial exceptions is development without consent. Particulars Clause 10 of the LMLEP (c) Whether development consent has been granted for any mine or for the carrying out of the development on any mine or ancillary activities on the land and whether that development is permissible without any further development consent. Particulars Section 109 B of the Act (d) If the answer to (b) and/or (c) is yes, whether any existing use rights arise." 9 The following are the preliminary issues raised in regard to the permissible uses:- Ancillary Use Whether the 'residential flat buildings' proposed in the development application are a use ancillary to the 'club' proposed in the development application. Particulars The land is within the 7(1) Conservation (Primary) and 7(4) Environmental (Coastline) Zones under the provisions of LMLEP. Within the 7(4) Zone, 'clubs' are permissible with development consent, 'residential flat buildings' are prohibited. Both uses are prohibited in the 7(1) Zone. Registered Clubs Act 1982 Whether the proposed 'residential flat buildings' are premises registered under the Registered Clubs Act 1976 that are also licensed to serve alcohol under the Liquor Act 1982. Heritage Conservation Incentives a) Whether the land upon which the development is proposed is capable of being land on which a building which is a heritage item is erected. b) Whether the reference in clause 53 of the LMLEP to "the land on which such a building is erected" includes the curtilage of the building as well as the land upon which the building has been erected and its curtilage or that land together with some or other land and, if so, what. 10 The preliminary issues raise mixed questions of fact and law. Existing use 11 The applicants claim that there are existing use rights attached to the land arising from use of the land for the purpose of a coal mine and as a dual occupancy. Section 106 of the EPA Act defines "existing use" as follows:- 106 Definition of "existing use" 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 Division 4A of Part 3 or Division 4 of this Part, 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. (1) Coal Mine 12 The applicants rely upon the continuing mining use for the purposes of the stockpiling of coal, the decommissioning of the mine and restoration of the land in accordance with the Mine Closure Plan as comprising mining purposes sufficient to establish the continuing use of the land for the purpose of a mine. It is claimed that the use was originally a lawful use as the mine use commenced prior to the commencement of planning controls in New South Wales. The mine buildings (including infrastructure) were the subject of recent development consents where necessary. 13 Mines are not a nominated use in the zoning table contained in Part 3 of LMLEP 2004 in respect of zone 7(1) or zone 7(4) and accordingly fall into the category of innominate developments that are prohibited within the zones. 14 A mine is defined in the Dictionary to LMLEP 2004 as follows:- mine means any place, open cut, shaft, tunnel, pit, drive, level or other excavation, drift, gutter, lead, vein, lode or reef on, in or by which any operation is carried on for or in connection with the purpose of obtaining any metal, mineral or gas by any mode or method and includes any place on which any product of the mining there is stacked, stored, crushed or otherwise treated, but does not include a quarry. 15 Clause 10 of LMLEP 2004 provides:- 10 Development by public authorities Despite other provisions of this plan, the following are allowed on land to which this plan applies without consent: (a) the use of existing buildings of the Crown by the Crown, and (b) activities specified in Schedule 10. 16 The relevant provision in Schedule 10 is item 6 as follows:- 6 Mines The carrying out by the owner or lessee of a mine (other than a mineral sands mine), on the mine, of any development required for the purpose of a mine, except: (a) the erection of buildings (not being plant or other structures or erections required for the mining, working, treatment or disposal of minerals) and the reconstruction, alteration or extension of buildings, so as materially to affect their design or external appearance, or (b) the formation of any means of access to a road. 17 The heading to Schedule 10 is "Development by public authorities." 18 A public authority is defined by the EPA Act and accordingly has the same meaning in LMLEP 2004 as follows:- public authority means: (a) a public or local authority constituted by or under an Act, or (b) a government Department, or (c) a statutory body representing the Crown, or (d) a chief executive officer within the meaning of the Public Sector Management Act 1988 (including the Director-General), or (e) a statutory State owned corporation (and its subsidiaries) within the meaning of the State Owned Corporations Act 1989, or (f) a chief executive officer of a corporation or subsidiary referred to in paragraph (e), or (g) a person prescribed by the regulations for the purposes of this definition. 19 It is fundamental to the applicants' claim that the mine use became prohibited upon the gazettal of LMLEP 2004. The argument is that because a public authority did not undertake the use of the land for the purpose of a mine the provisions of cl 10 together with Schedule 10 of LMLEP 2004 have no application to the mine development undertaken on the land. This submission relies for its success on construing cl 10 and Schedule 10 as being limited in their application to only permitting development of a mine if it is carried out by a public authority. 20 The principal thrust of the applicants' argument is that the constrained effect of cl 10 and Schedule 10 of LMLEP 2004 is that a private operator of a mine does not have the benefit of those provisions. They only apply to development by a public authority. Moreover notwithstanding that actual mining has ceased the continued use of the land comprises mining purposes. 21 Item 1 in Schedule 10 refers to "persons carrying on railway undertakings" whereas items 2, 3, 4 and 5 refer specifically to "persons carrying on public utility undertakings." Items 8, 9 and 10 identify particular authorities, namely the Forestry Commissioner, a rural lands protection board, the Council or the Department of Infrastructure, Planning and Natural Resources. Item 7 makes no reference to any person, individual or undertaking but simply refers to the carrying out of any development required in connection with any road. The only reference to an owner or lessee is in item 6. A "public utility undertaking" is defined in the Dictionary to LMLEP 2004 and refers to specific undertakings carried on or permitted or suffered to be carried on by or by authority of any government department or under the authority of or in pursuance of any Commonwealth or State Act but makes no reference to an undertaking for a mine. 22 Section 35 of the Interpretation Act 1987 relevantly provides that a heading to a schedule to an instrument shall be taken to be part of the instrument. Section 3(1) of the Interpretation Act includes an environmental planning instrument within the meaning of an instrument. 23 The applicant also makes reference to s 34 of the Interpretation Act to justify the use of the heading to cl 10 to assist in the ascertainment of the meaning of the provision. However, as the definition of instrument in s 3(1) clearly distinguishes between a statutory rule and an environmental planning instrument and as s 34 is confined to the interpretation of a provision of an Act or statutory rule, no direct assistance can be gained from s 34. 24 Applying a common sense approach to the interpretation of LMLEP 2004 and having regard to the natural or ordinary meaning of the words contained in cl 10 and the description of a mine contained in Item 6 of Schedule 10, I prefer the approach taken by the respondent council and read item 6 as not being confined by the heading to the Schedule. The failure to include mines and roads in the various categories of development carried on by public authorities otherwise mentioned in Schedule 10 does no harm to the effect of cl 10(b). It is unqualified by the identity of the person carrying out the activity subsequently specified in Schedule 10. Clause 10 is the substantive provision of LMLEP 2004. No assistance is gained from the heading to the clause. It is not a heading to a Part, Division or Subdivision of the LEP. Any conflict between the substantive formal provisions of cl 10 and the ancillary provision of item 6 in Schedule 10 should be resolved in favour of the substantive provisions in cl 10. 25 I agree with the submission made by Mr Robertson SC, on behalf of the council, that the terms of item 6 in Schedule 10 are clear and that consistent with the principles of construction in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [70]-[72] the general heading to the Schedule should give way to the substantive operation of the instrument. 26 The provisions of LMLEP 2004 are in contrast to the combined effect of cl 35 and Schedule 1 to the Model Provisions which make no distinction for the operation of a mine by a public authority. Although it might be argued that the specific inclusion of headings in LMLEP 2004 gives rise to a distinguishing intent on the part of the draftsperson of the LEP, I prefer to think that having regard to the unique statutory position of mines and mining generally (see Kembla Coal and Coke Pty Limited v Wollondilly Council (1994) 84 LGERA 263) in a planning context it is more likely than not that the unqualified application of the heading to Schedule 10 across the board was inadvertent, mistaken or unintended. Alternatively mines and roads were recognised as generally relying on statutory authority for their creation, construction and maintenance. 27 The respondent also relies on the provisions of cl 19 of LMLEP 2004 which relevantly provides as follows:- 19 Development for the purpose of a mine Nothing in this plan prevents a person, with development consent, from carrying out development for the purpose of a mine: (a) on any land to which this plan applies, if the mine is underground, or (b) on land that is shown as land with future open cut mining potential on the map marked "Lake Macquarie Local Environmental Plan 2004—Areas of Future Open Cut Mining Potential", if the mine is an open cut mine. 28 The applicant relies on the significant surface facilities that were presumably used to prepare and handle the coal for its submission that the mine carried out on the land was not underground as contemplated by cl 19. The council's reasoning is that the sole reason for the existence of surface infrastructure is to facilitate the purpose of an underground mine. Accordingly Mr Robertson says the rehabilitation of the site (if it is to be regarded as development for the purpose of a mine) is contemplated by cl 19. 29 Alternatively the council argues that the rehabilitation of the site is not development for the purpose of a mine in any event but in terms of a planning purpose must be characterised for what it is, namely rehabilitation. Rehabilitation works are permissible in the 7(1) and 7(4) zones. 30 It is further put by Mr Robertson during submissions that the area undergoing rehabilitation is unrelated to the area of land on which development is proposed. However the primary argument is that the mining use is permissible under cl 19(a), with development consent, particularly when reference is made to State Environmental Planning Policy 45 – Permissibility of Mining ("SEPP 45"). 31 Notwithstanding that the operation of cl 19 of LMLEP 2004 was not raised by the council until submissions nevertheless it has been dealt with extensively by the applicant in its response. Once such a fundamental issue is raised in relation to a jurisdictional fact it is appropriate for the Court to determine it notwithstanding the failure to plead it. Otherwise there is a prospect that the Court might proceed to judgment on the basis of a legal error. The submissions by the council have not been disallowed notwithstanding urging by Mr Craig QC to do so. No application for an adjournment has been made in order to allow the issue to be more effectively dealt with by the applicant. 32 Clause 5 of SEPP 45 provides:- (1)If mining is permissible on land with development consent in accordance with an environmental planning instrument if provisions of the instrument are satisfied, mining is permissible on that land with development consent without those provisions having to be satisfied and those provisions have no effect in determining whether or not mining is permissible on that land or to the determination of a development application for consent to carry out development for the purposes of mining on that land. (2)Without limiting subclause (1), if mining is permissible on land with development consent in accordance with an environmental planning instrument if the consent authority is satisfied as to certain matters specified in the instrument, mining is permissible on that land with development consent without the consent authority having to be satisfied as to those specified matters. 33 Mr Robertson submits that if cl 19 is to be construed strictly as the applicant contends so that mining is permissible only if no part of the mine in the subject land is above the ground then cl 5 of SEPP 45 removes that constraint. It would follow therefore that cl 19 must be construed as if all mining is permissible with consent. Even if the relaxation of the prohibition upon mining created by cl 19 is not "a provision of the instrument" which is required to be satisfied in order to render mining permissible as the applicant submits, nevertheless it is obvious that an underground mine cannot operate without surface facilities and infrastructure. They are clearly subsumed in the overall purpose of underground mining in contrast to an open cut mine where essentially all components are on or exposed to the surface. 34 Irrespective of whether cl 10 has the effect of allowing mining to continue on the land without consent or cl 19 permits the carrying out of development for the purposes of a mine, with development consent, in my opinion the effect is that, for the purposes of s 106(a), LMLEP 2004 did not "have the effect of prohibiting that use." Both arguments are accepted and applied to the facts of the case with the result that I formally find that existing use rights based on the mining use do not attach to the subject land. Either way there is no existing use on account of the mine use upon which the applicants rely. 35 Being satisfied that the use for mining purposes can continue either with or without consent and as that is a use upon which the applicant relies it is not necessary to deal with the alternative submissions in respect of the mining use namely whether development is carried on at present for the permissible purpose of rehabilitation or that the mine or mining purposes have been abandoned. 36 I should mention however that I prefer the view that activity regulated by a Mine Closure Plan is part of the overall development of the mine and should be regarded as completion of the mine project. However if rehabilitation is to be seen as separate and distinct development it is either permissible (although there is no evidence of consent for it) or it demonstrates that the mine use itself has been abandoned and that the land is being placed in readiness for a different use. 37 A further issue, not fully explored in argument, is whether Development Applications 87/0184 and 87/0185 authorising the development of a coal preparation plant have the effect that the current activities are carried on with consent and are therefore outside the ambit of s106 (see s109B). (2) Dual Occupancy 38 In addition the applicants submit that the land has been used for the purposes of two dwelling houses, the first known as the Jetty Masters Cottage and the second known as Wallarah House, both of which are said to be situated on the same lot, namely Lot 2031, thereby comprising development for the purposes of "dual occupancy – detached" as defined in LMLEP 2004, namely "two dwellings on a single allotment of land", which is a prohibited use. 39 The applicants rely upon the following facts to establish the existing use on that account:- a) the use was a lawful use as the buildings were constructed and occupied as dwellings prior to the commencement of planning controls in NSW; b) the two dwellings came to be on the single allotment of land pursuant to a registration of a plan of consolidation in 1985, which use was permissible at that date; c) the use became prohibited upon the gazettal of the amendment Lake Macquarie Local Environmental Plan 1984 ("LEP 1984") on 4 February 1997 and remains prohibited under LEP 2004; d) the use of the buildings for dwellings continues. 40 In response to the claimed existing use based upon dual occupancy the council responds as follows:- a) The purpose of the lawful use relied upon was not residential but took its character from the dominant use. b) The Jetty Master's Cottage and Wallarah House are not on a single allotment of land and thus are not a "dual occupancy – detached." c) If the Jetty Master's Cottage and Wallarah House are a "dual occupancy – detached", the use would be permissible in any event (with consent) under clause 59(4) of the LEP 2004. d) If the Jetty Master's Cottage and Wallarah House did have existing use rights, then there is no rational basis upon which it could be concluded that such rights extended to the land on which the actual development is to be carried out. 41 Clause 59 of LMLEP 2004 applies to land within zone 7(1) or 7(4). Under sub cl 4 of cl 59 development may be carried out with development consent for the purpose of dwelling houses. 42 The history of the use of the Jetty Master's Cottage and Wallarah House discloses an ongoing connection with the mining activities on the land. There is no dispute that the land has been used for the purposes of a mine from the latter part of the last century. Wallarah House was built in 1889 and subsequently used as a residence for the mine manager and continued to be occupied by a former coal company employee until mid 2002. The original use of the Jetty Master's House is reflected in its name. The General Manager of LakeCoal Pty Limited currently resides in the Jetty Master's House. Mr Heywood has given evidence that from 1980 to 1984 at least the Jetty Master's Cottage and Wallarah House were used as residences for senior mining staff and that from 1984 to 2002 according to his understanding both houses have continued to be used by employees as residences. 43 In accordance with the principles explained in Foodbarn Pty Limited v Solicitor General (1975) 32 LGRA 157 at 161 that where a part of premises is used for a purpose which is subordinate to the purpose which inspires the use of another part it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being used. Having regard to the whole of the evidence it is difficult to avoid the conclusion that both houses were erected for use in connection with the dominant use of the land namely for the purposes of a mine and the use has continued on that basis up to the present time so that for planning purposes the use of the houses was not a residential use but a mining use. 44 There is a further difficulty with the applicants' case in that the Jetty Master's Cottage is located partly on Lot 2031 and partly on an unformed road. Technically the whole of Wallarah House and part of the Jetty Master's Cottage are on a single allotment of land in that they stand on the one lot in the deposited plan. Nevertheless it is my view that it is artificial to extend the definition of dual occupancy – detached to incorporate a dwelling which extends beyond the boundaries of that lot. The unformed road is separate and distinct from Lot 2031 and accordingly the Jetty Master's Cottage, as a single entity, must be regarded as being on two separate parcels or lots. 45 If I am wrong and the houses are to be regarded as used for occupation as dwellings quite independent of the mine use then cl 59(4)(d) of LMLEP 2004 applies so that the use of each house becomes a permissible use as a dwelling house which is development that may be carried out with development consent. 46 Whatever view is taken I am driven to the conclusion that the two houses do not fall within the definition of dual occupancy – detached and accordingly are not prohibited on that account but furthermore they are permissible as dwelling houses pursuant to cl 59. The consequence is that LMLEP 2004 did not have the effect of prohibiting the use of the houses as dual occupancy – detached. If indeed the appropriate use to be ascribed to both houses is mining, as I think it is at least up to 2002 and continuing to the present in respect of the Jetty Master's House, then the conclusions I have already reached in respect of that use are equally apposite to this issue. The planning status of the proposed "residential flat buildings" 47 The question that arises in this respect is whether the residential flat buildings proposed in the development application are a use ancillary to the club proposed in the development application. Furthermore I am asked to determine whether the proposed residential flat buildings are premises registered under the Registered Clubs Act 1976 ("the Clubs Act") that are also licensed to serve alcohol under the Liquor Act 1982. 48 The application proposes adaptive re-use of the existing coal processing infrastructure and buildings for the actual club house use. The club building will include functions room, meeting rooms, a brasserie, various lounges, a gymnasium and a pool together with ancillary features such as kitchen and bars. There will be 300 car parking spaces for the club. The apartments will provide a mix of bedsitters, one bedroom, two bedroom, three bedroom and four bedroom accommodation with basement car parking. 49 Car parking facilities, clubs and restaurants are development permissible with consent in the 7(4) zone. The Dictionary in the LMLEP 2004 defines a club as follows:- club means premises registered under the Registered Clubs Act 1976 that are also licensed to serve alcohol under the Liquor Act 1982 . 50 Residential flat buildings are prohibited development within the zone. 51 The Statement of Environmental Effects ("SEE") claims that the accommodation is required to ensure that the function rooms can operate successfully and provide the standards of accommodation needed to attract conferences. 52 The Clubs Act, in section 4, defines a registered club as a club in respect of which a certificate of registration issued under Part 2 of the Act is in force. Section 9 of the Act directs the Licensing Court not to grant an application for a certificate of registration of a club if it is not satisfied that the club meets the requirements specified in s 10(1). Section 10 contains a number of requirements for the purposes of s 9 including that the club be established for the purpose of providing accommodation for its members and their guests. The combined effect of s 10(1)(f) and (g) is that the club shall have premises of which it is the bona fide occupier for the purposes of the club and which are provided and maintained from the funds of the club and shall contain accommodation appropriate for the purposes of the club. The applicants rely on the common meaning of accommodation as including something which supplies a want, convenience or living premises for the purpose of its members. 53 It is anticipated by the applicants that it will be a condition of the development consent that the club be registered under the Clubs Act. In this context they submit that provided the accommodation is limited to members and guests (or otherwise for club purposes) it falls within the terms and intent of the definition. 54 Alternatively if the residential components identified in the development application can be characterised as ancillary to the use of a club the residential components can be developed in the 7(4) zone with development consent. It is recognised by the applicants that the issue of whether accommodation forms part of the club or is ancillary to the club use is related to the management procedures adopted by the club. 55 The management arrangements are explained in the SEE as follows:- Catherine Hill Bay Bowling Club and the Swansea RSL are in the process of amalgamation. Amalgamation application No 229136 is a [sic] scheduled for hearing by the Licensing Court on 5 July 2004. The intention is to transfer the license of the bowling club to the new location. Swansea RSL will take a lease over the club site. The RSL will build and own the new club premises with Rosecorp arranging finance. Once established the premises will be run as a club in keeping with the conditions of the licence. A manager has been appointed for the Bowling Club and the current operational procedures, including security, will transfer to the new premises. Once fully operational on the new site the club will target the conferences and functions market. 56 In a report prepared in support of the Development Application and comprised as an appendix to the SEE the architects make the following observations in the context of the social dimensions required to be addressed pursuant to State Environmental Planning Policy 65 Design Quality Principles ("SEPP 65"):- It is anticipated that the developed site will add in excess of 150 people to the existing residential population of the area. This development will add to the social structure of the area and assist in creating a viable community. The new development will have no negative impacts on any social groups but will have a positive impact on the developing Breakfast Point neighbourhood. The diversity of apartment designs and sizes and their location within the development will result in the apartments being for sale at a range of prices. This will ensure that there will be a large range of social personalities introduced into the area and this will have a positive impact on the social richness of the area. 57 A draft form of lease has been admitted as an exhibit as evidence of a document that will be required to be entered into as a condition of development consent. Swansea RSL Club is identified as the tenant and the schedule refers to the permitted use of the premises as follows:- (a) Club Building – permitted use is to provide social, recreational, literary, sporting and athletic facilities of a Club, which may include bar rooms, TAB facilities, poker machines, restaurant, function and meeting rooms, rock climbing wall, games and pool lounges, library, scuba pool, rock climbing wall [sic] and other sporting and recreational facilities; (b) Residential Accommodation – permitted use is to provide accommodation for members and guests of the Tenant, whether or not for a fee; (c) Car Park – permitted use as a car park. 58 Clearly there are mixed intentions. Firstly for the owners of individual dwellings to enter into an arrangement with the club to lease some of the residential accommodation (say the serviced apartments). Secondly however there is an expressed intent for dwellings to be occupied by third party owners as a permanent domicile or place of abode. According to the respondent the second part is the antithesis of a club use for the reasons set out in its written submissions as follows:- 16. An application for registration under the [Registered Clubs] Act can only be made "in respect of premises defined or described in the application made to the Licensing Court" (s.7). A determination granting the application must "define or describe the premises of the club" and "specify that those premises" or part of them are the defined premises of the club (s.5(1)(a), (b)). The Court is not to grant an application to register the club in respect of its premises unless it produces before the hearing of the application "an approved plan of the proposed premises of the club showing clearly the accommodation proposed to be provided in these premises" (s.9(3)(a)(ii)). An "approved plan" is defined by s.4(1) as follows: "in relation to proposed club premises or a proposed additional or alteration of club premises means a plan of the proposed premises or of the proposed addition or alteration that accompanies any development consent required under the EPA Act for the carrying out of the work represented by the plan, or evidence that such consent is not required" Nor is the application to be granted unless the Court is satisfied that the club meets the requirements of s.10. 17. The words 'premises' and 'accommodation' in the above subsections are incapable of application to the residential flat buildings. This is apparent from the facts that: a. such accommodation as the club is to provide is to be provided "in" the defined or described premises of the club and there is no plan capable of approval which defines the RFBs as part of the club premises; b. the club shall be conducted as a club, and not as a residential flat building; c. the club must be the "occupier" of its premises; d. it must occupy its premises for the purpose of the club and for no other purpose; e. the club premises are required to be provided and maintained from the funds of the club; f. "accommodation" is employed throughout the Act refer to the suitability of the club premises for its members and guests, as appears from s.9(3)(a(ii), s.10(e)(ii), (f) and (g), s.11(4)(c), s.17(6)(a)(ii), s.18(4)(ii), s.19(3)(a)(ii), s.19A(4)(a)(ii), s.21(1),(3)(a)(ii), and s.45(1),(2). g. "accommodation" therefore means the accommodation of the club within the premises in respect of which a certificate of registration is sought: hence s.10(g) requires that the premises must contain accommodation appropriate for the purposes of the club i.e the premises must be capable of accommodating the club, the club must be occupier of the premises, the club must provide and maintain the premises for its own funds and so on; h. persons under the age of 18 would not be able to enter the residential flat buildings absent an order under s22A and then only for the purpose of taking part in sporting activities or a prize-giving ceremony associated with sporting activities. If such a person enters the residential flat building otherwise, then the secretary and any employee of the Club may have committed an offence (s52B); i. no person occupying one of the apartments would be able to hold any function other than pursuant to an order under s 23; j. the Secretary of the club is criminally liable for any "indecent violent or quarrelsome conduct" on the club premises (s.44A(1)) and may turn out of the premises of the club any intoxicated, quarrelsome or disorderly person (s.67A(1)); it is unlikely that Parliament intended club officials to regulate the behaviour in private of residents and to have the power to eject them from their homes and forcibly to refuse them re-admission (s.67A(2), (3)); k. club staff, directors and the licensing police can demand names and addresses of any person on club premises who is reasonably suspected of not being a member or guest (s.67(2), (3)), hardly a power likely to be conferred in relation to visitors to private dwellings (except in a police state); l. members' guests (presumably in the capacity of visitors to their dwellings) must remain in their company while on club premises, and must leave when they do (s.4 "guest"); m. residents could never lease their units without breaching the prohibition upon individuals deriving profits from the club without offering the opportunity to all full members. 59 Mr Robertson relies on the statements contained in the SEPP 65 report to make the abovementioned submissions that the proposed use of the residential accommodation will not be ancillary to the club use. The fact that the residential accommodation will support patronage for the club does not of itself make the use of what would otherwise be residential flat buildings a permitted use (Woollahra Municipal Council v Minister for the Environment (1991) 23 NSWLR 701. 60 The following appears at page 714 in Woollahra v The Minister:- In the context of planning law, a statement of the purpose for which land is being used is a description or characterisation of what is being done with, or upon, the land, not an account of the motives of the persons involved in that activity. The question in the present case is whether the use to which the land is being put, which is to be identified by reference to the nature of the activity being conducted upon it, is a use for a purpose authorised by the Act. 61 A perusal of the requirements to be met by clubs contained in s 10 of the Clubs Act suggests that the provision of living accommodation in the manner proposed is antipathetic to the manner in which it is expected a club will be conducted. One of these requirements is that the club is the bona fide occupier of premises for the purposes of the club and that the premises are provided and maintained from the funds of the club. No member of the club shall be entitled to derive directly or indirectly any profit, benefit or advantage from the club that is not offered equally to every full member of the club. Only a quarter of the units proposed in the residential buildings are proposed as serviced apartments. The remainder are described as residential apartments. The applicant is proceeding on one basis that the residential units can be made a component or part of the club itself and will be provided as part of the services of the club. 62 Nevertheless I am unable to fathom any reason which would prohibit the club from obtaining a certificate of registration in respect of the whole development. Ultimately it may not be successful in obtaining a certificate of registration but I am not persuaded that there is an underlying impediment, statutory or otherwise, to the making of an application to the Licensing Court supported by the appropriate plans on the basis that the whole of the premises are registered as a club. I find myself in the difficult position of not being able to totally discount the prospect that registration could be obtained. 63 It would not be enough in my view if only the building containing the club house itself was the subject of the certificate of registration. Moreover it is not clear from the documentation presented to the Court to date whether the accommodation component of the development that is designed as a combination of serviced apartments and apartments for permanent accommodation can be brought within the ambit of the Clubs Act. This question appears to be premature and incapable of a utilitarian or final answer until such time as an application has been made under the Clubs Act and determined. Ultimately it is a matter for the Licensing Court to decide. If the matter needed to be finally determined at this preliminary stage of the proceedings then I would be inclined to the view that the categorisation of the development as a club cannot be sustained. This is a view apparently shared by the author of the SEE providing details of the accommodation component of the proposal as follows:- The residential and serviced apartments are a prohibited use in both the 7(1) and 7(4) zone. The proposal would be a residential flat building as defined in LEP 2004. The LEP is structured for the 7(1) and 7(4) zone so that only permitted uses are listed in the zone land use tables. All other uses (other than exempt development) are prohibited. Only the listed uses in the zone table are permitted so all other users, other than exempt development, are prohibited. Consent is sought on the basis of the existing use right for a residential flat building. 64 If the applicant can ultimately show that the whole of the premises, including the residential flat buildings are registered under the Clubs Act or capable of being so registered then it could be open for the Court to proceed to determine the development application for a club on the basis of the merits of the application. 65 The next question I am asked is whether the residential flat buildings proposed in the development application are a use ancillary to the club proposed in the development application. The answer to the question must be "no" unless the residential flat buildings are themselves the subject of a certificate of registration under the Clubs Act or they are inextricably principally bound over to a use by club members and guests. If the facts remain as they are at present I could not be satisfied that the residential flat buildings are ancillary to the club but rather I would conclude that the club is being adopted as a vehicle to bring the residential flat buildings within the context of a development that is permissible with consent. 66 The description of the Development in the original Application is "club, sports club, residential apartments, serviced apartments and subdivision." Even the amended development application plans identify the sports club as a separate entity to the "residential precinct." If the development application remains in its present form, even after amendments made recently during the course of the hearing, the proposal, as a whole, is unlikely to be approved as development for the purposes of a club. 67 The residential flat buildings are a substantial development in their own right and accordingly applying the Foodbarn principle, the proposal is most likely to be regarded as a use for two purposes neither of which subserves the other. Subject as abovementioned, in relation to registration under the Registered Clubs Act based on the evidence as it is at present the residential flat buildings would be regarded as operating in a way which will be independent and separate, not merely incidental, to the club use and are therefore prohibited. The Heritage Claim 68 Clause 53 of LMLEP provides that consent may be granted for the use of the building that is a heritage item, or of the land on which such a building is erected (even though the use would be otherwise prohibited by the plan) if the consent authority is of the opinion that:- (a) the retention of the heritage item depends on the granting of consent, and (b) the proposed use will be in accordance with a conservation management plan which has been prepared to the satisfaction of the Council, and (c) the granting of consent to the proposed use will ensure that all necessary conservation work identified in the conservation management plan is carried out, and (d) the proposed use will not adversely affect the heritage significance of the heritage item or its setting, and (e) the proposed use will not adversely affect the amenity of the surrounding area. 69 The following items are listed in Schedule 4 to LMLEP as heritage items:- Item No. Significance Item Address Property description CH-13 Local House "Wallarah House" 1a Keene St Lot 2031, DP 841175 CH-14 Local Coal Loader Jetty Southern end of beach Lot 2031, DP 841175 CH-16 Local Catherine Hill Bay Mine Camp to the coal loader jetty (also see RT-18) Lot 2031, DP 841175 Colliery Railway RT-18 Local Catherine Hill Bay From Mine Camp north of the township, to the coal loader Colliery Railway 70 Significantly for the applicants' case the description of the property in respect of Items CH13, CH14 and CH16 is Lot 2031. That lot is part of the subject site on which the development is proposed. Thereafter it is said to be a question of satisfaction of the matters set out in paragraphs (a) to (e) of cl 53. According to Mr Craig, that will require an assessment and analysis of the facts in the course of the hearing on the merits. 71 Notwithstanding the reference to Lot 2031 in the property description it is difficult to discern form the plans submitted with the development application whether some part of the railway land is on the same lot or parcel of land as the development site. The applicants expressly disavow that they propose to carry out development of the railway land or Wallarah House and acknowledge that the jetty does not extend into the development site. They have nevertheless indicated willingness to participate in a process to establish viable future use of the jetty. The other two heritage items are recognised as being within the vicinity of the proposed development. However the Heritage Impact Statement lodged with council is at pains to stress there will be no adverse impact on those heritage items. It is not part of the proposal to carry out development of any heritage item. 72 The council in response says that the applicants cannot approbate and reprobate in respect of the jetty on this issue and if the other heritage items are not affected by the proposal, but are merely in the vicinity, the heritage incentives in clause 53 are irrelevant. 73 Furthermore Mr Robertson points out that clause 53 is limited to "use of a building" or "land on which such a building is erected". It therefore does not encompass development generally notwithstanding the broad construction given to a similar clause in Waverly LEP considered by Cowdroy J in Baker Kavanagh Architects Pty Ltd v Waverly Council [2004] NSWLEC 662. I note that Cowdroy J was considering a different statutory provision in the context of another planning instrument in Baker and therefore provides little assistance for me to reach a conclusion in this matter. 74 Having regard to the definition of "development" in the EPA Act (which applies to the LEP unless a contrary intention appears by dint of s11 of the Interpretation Act) the adoption of "use", which is a subclass of development, there is no warrant for construing clause 53 as applying to anything other than use of an existing building or the relevant land. The proposed club premises and residential flat buildings are to be situated on land that is manifestly outside the concept of land on which either Wallarah House, the remnant railway line or the jetty stands. Furthermore no use of any of the items is proposed. 75 Even if the use of land where referred to in LMLEP 2004 includes the erection of a building, as the applicants contend, I nevertheless reject the argument that, for the purpose of cl 53, the site of the proposed club within the former coal preparation plant buildings and the adjacent land designated for the residential precinct are the same land as that upon which Wallarah House, the railway or the jetty is erected. Wallarah House sits within a well-defined curtilage inside a fence that surrounds it. The railway site is ill-defined but remote. The whole of the jetty is outside the subject land. They are each in a distinct location and bear little or no relevance to the proposal either in a physical or practical sense. 76 While the property definitions in the schedule refer only to Lot 2031 the respective addresses given are far more definitive and restricted so that one is entitled to draw the conclusion that a common sense approach should be taken to the identity of the relevant land namely that only the item itself and the area immediately connected to it in the sense of a curtilage or its surrounds were intended to be addressed by cl 53. Otherwise, a wider concept could lead to absurdity whereby the benefit of the provisions of the clause could be extended to land wholly unrelated or irrelevant to the conservation or significance of the heritage item. 77 In my view the heritage items are not sufficiently relevantly related to the proposed actual development site where physical works will occur to enable the applicants to rely on any one of the three items to justify a consideration of the opinions required pursuant to cl 53(a) to (e). This conclusion together with the express lack of intention to physically use any one of the heritage items in connection with the development in my opinion leaves the development outside the purview of cl 53. Conclusion 78 I have provided answers to each of the questions raised as preliminary issues by the council as best I am able to do on the basis of the evidence adduced to date. The parties should be given an opportunity to consider these reasons before further directions are made for the future conduct of the proceedings. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.