New South Wales Court of Appeal CITATION : GAMEPLAN v SOUTH SYDNEY CITY COUNCIL [1999] NSWCA 223 FILE NUMBER(S) : CA 40629/96 HEARING DATE(S) : 15 March 1999 JUDGMENT DATE : 2 July 1999 GAMEPLAN SPORTS AND LEISURE PTY LTD PARTIES : v SOUTH SYDNEY CITY COUNCIL JUDGMENT OF : Meagher JA at 1; Handley JA at 2; Giles JA at 24 LOWER COURT JURISDICTION : Land & Environment Court LOWER COURT FILE NUMBER(S) : 40007/96 LOWER COURT JUDICIAL OFFICER : Pearlman CJ COUNSEL : P D McClellan QC/B J Preston (Appellant) W R Davison SC (Respondent) SOLICITORS : Mallesons Stephen Jaques (Appellant) Pike Pike & Fenwick (Respondent) CATCHWORDS : ENVIRONMENTAL PLANNING - whether use of land prohibited - statutory interpretation - zoning tables - whether references to provisions in Local Government Act 1919 correspond with provisions in Local Government Act 1993 Centennial Park and Moore Park Trust Act 1983 Local Government Act 1919 Local Government Act 1993 Interpretation Act 1987 ACTS CITED : Domain Leasing Act 1961 Royal Botanic Gardens and Domain Trust Act 1980 Centennial Park Trust Act 1983 Centennial Park Trust (Amendment) Act 1991 Sydney Cricket and Sports Ground Act 1978 Seaton v Mosman Municipal Council (1998) 98 LGERA 81, 96-8 CASES CITED: Sydney Cricket and Sports Ground Trust v South Sydney Municipal Council (1992) 78 LGERA 223 South Sydney City Council v Paul Dainty Corporation Pty Ltd (1992) 75 LGRA 202, 207-8 Sydney City Council v Royal Agricultural Society (1985) 56 LGRA 443 DECISION : Appeal allowed with costs. Orders made. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40629/96 LEC 40007/96 MEAGHER JA HANDLEY JA GILES JA Friday 2 July 1999 GAMEPLAN SPORTS AND LEISURE PTY LIMITED v SOUTH SYDNEY CITY COUNCIL ENVIRONMENTAL PLANNING - whether use of land prohibited - statutory interpretation - zoning tables - whether references to provisions in Local Government Act 1919 correspond with provisions in Local Government Act 1993 A development application for a restaurant on part of Moore Park was refused on the grounds that this use was prohibited by the City of Sydney Planning Scheme Ordinance (PSO). The developer sought a declaration that the development was not prohibited. The issue concerned the interpretation of the zoning tables in the PSO, which referred to Divisions 2 and 3 of Pt XIII of the repealed Local Government Act 1919. Under clause 4(1) in Schedule 7 of the Local Government Act 1993 references in the PSO to provisions of the repealed 1919 Act were to be read as references to the most nearly corresponding provisions in the 1993 Act. It was common ground in the Land and Environment Court proceedings that no provisions in the 1993 Act corresponded to the relevant provisions in the 1919 Act as they applied to land such as Moore Park which was not under the control of the Council. HELD , allowing the appeal: (1) The interpretation of cl 4(1) in Schedule 7 of the Local Government Act 1993 that was accepted in the Land and Environment Court proceedings was correct. Since the land was not under the care, control or management of the Council there were no corresponding provisions in the 1993 Act and the provisions referred to in the zoning table were those of the 1919 Act. Seaton v Mosman Municipal Council (1998) 98 LGERA 81, 96-8 distinguished. (2) The trial Judge had erred in construing Column III of the PSO as lacking any effective operation in relation to the relevant land because it was not under the care, management or control of the Council. The purposes authorised by Pt XIII of the Act as referred to in Column III of the PSO are not confined to activities undertaken by the Council as the body with the care, control and management of the land, but also apply to land under the care, control and management of others. Sydney City Council v Royal Agricultural Society (1985) 56 LGRA 443 per Cripps J at 445, and (on appeal) (1987) 61 LGRA 305 per McHugh JA at 307 applied. Accordingly a restaurant, as a public refreshment room or rooms, was a permissible use of the land within Column III of the PSO and the appellant was entitled to a declaration to this effect. ORDERS (1) Appeal allowed with costs; (2) Set aside the declarations and orders made by the Land and Environment Court; (3) In lieu thereof declare that the development proposed in Development Application 95-00516 dated 27 June 1995 on deposited plan 821362 known as Moore Park is permissible within Column III of the City of Sydney Planning Scheme Ordinance; (4) The respondent is to pay the appellant's costs of the proceedings in the Land and Environment Court; (5) The respondent is to have a certificate under the Suitors Fund Act in respect of the costs in this Court if it is qualified. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40629/96 LEC 40007/96 MEAGHER JA HANDLEY JA GILES JA Friday 2 July 1999 GAMEPLAN SPORTS AND LEISURE PTY LIMITED v SOUTH SYDNEY CITY COUNCIL JUDGMENT 1 MEAGHER JA: I agree with Handley JA. 2 HANDLEY JA: This is an appeal from a decision of Pearlman CJ in Class 4 proceedings in the Land and Environment Court. On 26 June 1995 the appellant lodged an application with the Council for development consent for "the construction of a new tennis centre within an existing tennis court, the construction of a restaurant, the upgrading of two existing courts, the demolition of an existing toilet block and parking for 80 cars". The application was later divided and approval granted for the new tennis centre but refused for the restaurant. 3 The application for the restaurant was refused on the ground that this use was prohibited under the City of Sydney Planning Scheme Ordinance (PSO). Although it seems a merits appeal to the Court is pending, which has kept the development application alive, the appellant commenced Class 4 proceedings for declaratory relief. Its claim that has been pressed is that the proposed development is not prohibited. 4 The subject land is vested in the Centennial Park and Moore Park Trust, a corporation constituted by the Centennial Park and Moore Park Trust Act 1983. It was zoned 6(a) Recreation (Existing) under the PSO, which has since been replaced by the South Sydney LEP which took effect on 24 April 1998. The relevant parts of the Zoning Table of the PSO applying to such land and land zoned 6(b) were: 5 The Act referred to in column III was the Local Government Act 1919 which was repealed by the Local Government Act 1993. Clause 4(1) in Schedule 7 of the latter which contained Savings and Transitional Provisions, reads: "Except as provided by this clause a reference in any instrument to the [1919] Act (or a provision of the [1919] Act) is to be read as a reference to that instrument or the following instruments (or that provision of such an instrument) that, having regard to the reference and the context in which the reference occurs, most nearly corresponds to the [1919] Act (or the provision of the [1919] Act):". 6 The clause concluded with references to the 1993 Act and other Acts and the Regulations made under them. 7 It was common ground in the Court below that none of the instruments listed in that clause contained provisions which even vaguely correspond to Divisions 2 and 3 of Pt XIII of the 1919 Act as they apply to land zoned 6(a) and 6(b) which is not under the care, control and management of the Council. It was therefore common ground before the Chief Judge that the relevant references in column III of the Zoning Table to "the Act" continued to refer to the provisions of the 1919 Act despite its repeal. This is a strange result, bearing in mind the purpose of cl 4(1) and of s 68(3)(a), the corresponding provision in the Interpretation Act 1987 and the respondent in a belated notice of contention contended that the references to the Act in Column III had been repealed. 8 We were also referred to the decision of this Court in Seaton v Mosman Municipal Council (1998) 98 LGERA 81, 96-8 decided since the judgment under appeal. That case concerned land in the care etc of the Council which was zoned Open Space 6 (a) (recreation existing) under the Mosman LEP. The relevant provisions of that zoning table also referred to the purposes authorised by Divisions 2 and 3 of Pt XIII of the 1919 Act. This Court held that the provisions in Div 2 Pt 2 of Ch 6 of the 1993 Act (use and management of community land) did "most nearly correspond" to the provisions of the 1919 Act in their application to that land. The zoning table was therefore to be read as referring to those provisions of the 1993 Act. This decision, which if I may say so with respect, was clearly correct, in my judgment has no application to land such as Moore Park which is not under the care etc of a council. 9 Section 35 in Div 2 only applies to councils but does not, in terms, state the purposes for which a council may use its community land. It provides instead that its community land may be used and managed in accordance with the 1993 Act, any other applicable law, and the plan of management applying to the land. 10 The relevant provisions of the zoning table in their application, since the 1993 Act, to land under the care etc of the Council can now be read as a reference to the purposes authorised by the Council's plan of management for that land. However in their application to land not under the care etc of the Council, a reference to Div 2, Pt 2 of Ch 6 of the 1993 Act would fail to give a single answer where, typically, the Council has several plans of management each applicable to a particular area of community land. 11 I have therefore been persuaded by Mr McClellan's argument for the appellant that the construction of cl 4 (1) accepted below is correct. Like all interpretation provisions, cl 4(1) is subject to any contrary intention disclosed in the legislation, but where, as here, the clause is incapable of effective operation, the original reference stands unamended. Neither cl 4(1) nor s 68(3)(a) can be construed as effecting repeals where they fail to operate as effective interpretation provisions. They should not be interpreted as altering existing provisions unless they provide a substitute. Accordingly the contention which the respondent sought to raise in its belated notice should be rejected. 12 It was common ground that s 350 of the 1919 Act, which authorised the provision of "public refreshment rooms", was the only section in Divisions 2 and 3 of Pt XIII which could possibly make the proposed development a permissible purpose within column III as it applied to the subject land. The section provided as follows: "350. In any public reserve under its care, control, or management the council may provide, control, and manage: (a) musical entertainments; (b) chairs for hire to the public; (c) public refreshment rooms; (d) buildings for public entertainments conducted or authorised by the council; (e) public entertainments; (f) boat sheds for the hire of boats to the public; (g) boats for hire to the public; (h) grandstands, pavilions, seats, shelter sheds, picnic kiosks, privies, and other buildings for the convenience of the public". 13 However in Sydney Cricket and Sports Ground Trust v South Sydney Municipal Council (1992) 78 LGERA 223 (the SCG case) the Chief Judge had held that the reference in the Zoning Table for zone 6(b) land to "any purpose authorised by Pt XIII of the Act" only applied where Pt XIII itself applied, that is it only applied to zone 6(b) land which was a public reserve under the care etc of the Council. 14 In that case, which involved a popular music concert to be held at the Sydney Cricket Ground, her Honour said (ibid at 228): "In my opinion the only musical entertainment which is authorised under Pt XIII of the Act is a musical entertainment which takes place in a public reserve under the care, control and management of the Council. Whilst there are other purposes within Pt XIII which may be authorised on land which is not under the care, control or management of the Council, or which may be authorised although not actually conducted by the Council, nevertheless musical entertainment is not one of them. The term appears only in s 350, and that section explicitly refers to land which is in the care, control and management of the Council. I do not think the constraints stipulated in the opening words of the section can be ignored. Those constraints do not go to the concept of user or operator of the purpose, they stipulate the only circumstances in which the purpose is authorised". 15 Surrounding circumstances relevant to the construction of this part of the Zoning Table include the fact that Centennial Park, the E S Marks Field, the Domain and the Botanic Gardens were also zoned 6(a) and the Showground, the Cricket Ground and the Sportsground were zoned 6(b). 16 The construction of column III adopted by her Honour meant that it had no effective operation at all in relation to zone 6(a) and 6(b) land which was not under the care etc of the Council. It is evident from the Domain Leasing Act 1961 and Schedule 3 of the Royal Botanic Gardens and Domain Trust Act 1980 that in 1971 the Sydney City Council did not have the care etc of the Botanic Gardens and the Domain. It is evident from the Centennial Park Trust Act 1983, and the Centennial Park Trust (Amendment) Act 1991, that in 1971 it did not have the care etc of Centennial Park, Moore Park, or the E S Marks Field. It is also evident from decided cases and Schedule 4 of the Sydney Cricket and Sports Ground Act 1978 that in 1971 it did not have the care etc of the Showground, Cricket Ground and Sportsground. 17 This means that on the construction adopted by her Honour column III had no application to substantial areas of land zoned 6(a) and 6(b) contrary to the apparent intention of the PSO interpreted in the light of the surrounding circumstances. Moreover the result was not that column III purposes in relation to land not under the care etc of the Council became column IV purposes permissible with its consent. The failed column III purposes became column V purposes and were absolutely prohibited. There was no apparent reason for the Zoning Table to operate so differently in relation to land with the same zoning, or for Column III to have no application at all to land zoned 6(a) or 6(b) which was not under the care etc of the Council. 18 The results of the construction accepted by her Honour are, with respect, so extraordinary that they invite a careful re-examination of the reasoning which led to that construction. It was not required by precedent. In South Sydney City Council v Paul Dainty Corporation Pty Ltd (1992) 75 LGRA 202, 207-8 which involved the proposed use of the Sydney Cricket Ground for an outdoor concert Talbot J referred to the decision of Cripps J in Sydney City Council v Royal Agricultural Society (1985) 56 LGRA 443 (the RAS case), 445, and said: "I am not entirely satisfied that the column [III] uses permitted with consent are any wider than those actually undertaken by councils. It is not necessary for me to decide whether the proposed concert is development which is prohibited or is a purpose which may be undertaken with the consent of the council either on the basis that the council may only impose conditions or that it has a discretion to refuse consent. If it was necessary to decide, I would conclude that the proposed activity is not a purpose authorised by Pt XIII of the Local Government Act because it is not to be carried on within land which is under the care, control and management of the council". 19 In the SCG case ibid 226-7, Pearlman CJ referred to this dictum and reached the same conclusion, and followed her decision in the case under appeal. However in the RAS case (ibid) at 445, Cripps J had said: "It is agreed that the words 'any purpose authorised by Pt XIII of the Act' in Col III are descriptive of the purposes which may be undertaken by any person. That is, they are not confined to the activities actually undertaken by local councils. The use or the erection of buildings for amplified open air concerts are 'purposes' within the meaning of Col III of the Planning Scheme Ordinance. The council may not refuse consent to erect or use buildings or use land for the purposes authorised by Pt XIII of the Local Government Act but it may impose such conditions as are authorised … It follows that the use of the showground for amplified open air concerts is not a prohibited use and may be undertaken with the consent of the council which cannot be refused although conditions may be imposed". 20 This Court should hesitate before concluding that a concession by Gleeson QC and Mr J J Spigelman, who appeared for the Sydney City Council, was wrongly made. If it was wrongly made, the use of the Showground for open air concerts fell within column V of the Zoning Table and was prohibited. Cripps J accepted the concession as correct because he found that development consent was required, and the use was not prohibited. The case went on appeal ((1987) 61 LGRA 305), and the concession was maintained. McHugh JA, who delivered the principal judgment in this Court said, at 307, after referring to the zoning: "Under that zoning there are no purposes for which a building or works may be erected or carried out or used without the consent of the council. 'Purposes' (column IV) for which buildings or works may be erected or carried out or used with the consent of the council include 'showgrounds' and 'sports grounds'. 'Purposes' (column III) for which buildings or works may be erected or land may be used subject to such conditions as may be imposed are any purposes authorised by Pt XIII of the Local Government Act 1919 … Among the purposes in Pt XIII are 'musical entertainments' and 'public entertainments'. Since the use of the land and the erection of stages or equipment for an amplified open air concert are column III 'purposes', the council may not refuse consent to activities for that purpose. Accordingly the use of the land for amplified open air concerts is not a prohibited use, but the Council may impose conditions …". 21 The acceptance of this concession by both Cripps J and this Court is highly persuasive and these decisions strengthen the conclusion that I would independently reach based on the language of the Zoning Table construed in the light of the surrounding circumstances. In my judgment therefore a restaurant, as a public refreshment room or rooms, was a permissible use of the land within Column III, and the appellant is entitled to succeed on this ground. 22 It also relied upon cl 62K of the PSO added by the South Sydney LEP No 126 which took effect on 4 November 1993. This was an alternative argument which this Court has no need to determine in the light of the conclusion I have reached on the first argument. LEP 126 was repealed by the South Sydney LEP 1998 and the alternative argument is now only of historical interest. No good purpose would be served by this Court expressing its views on its validity. 23 In my opinion therefore the following orders should be made: (1) Appeal allowed with costs; (2) Set aside the declarations and orders made by the Land and Environment Court; (3) In lieu thereof declare that the development proposed in Development Application 95-00516 dated 27 June 1995 on deposited plan 821362 known as Moore Park is permissible within Column III of the City of Sydney Planning Scheme Ordinance; (4) The respondent is to pay the appellant's costs of the proceedings in the Land and Environment Court; (5) The respondent is to have a certificate under the Suitors Fund Act in respect of the costs in this Court if it is qualified. 24 GILES JA: I agree with Handley JA. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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