Chong & Anor v Logan City Council [2016] QCA 12 (2015) 212 LGERA 399

SUPREME COURT OF QUEENSLAND CITATION: Chong & Anor v Logan City Council [2016] QCA 12 PARTIES: TYAM HEONG CHONG (first applicant) CHIN-JUI YANG (second applicant) v LOGAN CITY COUNCIL (respondent) FILE NO/S: Appeal No 4904 of 2015 P & E No 3933 of 2012 DIVISION: Court of Appeal PROCEEDING: Application for Leave Sustainable Planning Act ORIGINATING COURT: Planning and Environment Court at Brisbane – [2015] QPELR 484 DELIVERED ON: 5 February 2016 DELIVERED AT: Brisbane HEARING DATE: 17 September 2015 JUDGES: Holmes CJ and Gotterson JA and McMeekin J Separate reasons for judgment of each member of the Court, each concurring as to the orders made ORDERS: 1. Leave to appeal granted. 2. Appeal dismissed. 3. Appellants to pay the respondent’s costs of the application and the appeal on the standard basis. CATCHWORDS: ENVIRONMENT AND PLANNING – COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION – QUEENSLAND – SUPREME COURT – LEAVE TO APPEAL – where the applicants are the owners of a fee simple estate interest of land – where the Logan City Council amended the Planning Scheme affecting the zoning of the applicants’ land – where relying on the change to the zoning of their land, the applicants lodged a claim with the Council to be paid reasonable compensation under s 705 Sustainable Planning Act 2009 (Qld) (SPA) – where the Council refused this claim – where the applicants filed an unsuccessful claim in the Planning and Environment Court – where the applicants filed an application for leave to appeal under s 498(2) SPA to the Court of Appeal – where quantum is not in issue – where the learned primary judge identified the issue in the case before the Court as whether a use for a food outlet or for a restaurant subject to being “carried out with but incidental and subordinate -- 1 of 11 -- 2 to” a public recreation is a use for a public purpose – where the primary judge found that the Council had “satisfied its onus of proof that the subject land could be used for a purpose other than only a public purpose and other than the purpose for which it was being used when the change was made” with the subsequent result that s 705 SPA could not be engaged – whether a restaurant or food outlet lawfully conducted on the applicant’s land would be a use of the land for a commercial purpose, and not for a public purpose – whether leave to appeal should be granted and the appeal allowed Environmental Planning and Assessment Regulation 2000 (NSW) Sustainable Planning Act 2009 (Qld), s 255A, s 313, s 493(7), s 498(2), s 703, s 705, s 710(1)(c), s 711 Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157, considered Shire of Perth v O’Keefe (1964) 110 CLR 529; [1964] HCA 37, applied Toner Design Pty Ltd v Newcastle City Council (2013) 198 LGERA 203; [2013] NSWCA 410, considered Warringah Shire Council v Raffles [1979] 2 NSWLR 299, cited COUNSEL: S P Fynes-Clinton for the applicants R G Bain QC, with N D Loos, for the respondent SOLICITORS: H Drakos & Co for the applicants Corrs Chambers Westgarth for the respondent [1] HOLMES CJ: I agree with the reasons of Gotterson JA and the orders he proposes. [2] GOTTERSON JA: The applicants, Tyam Heong Chong and Chin-Jui Yang, are the owners of a fee simple estate interest in a parcel of some 4.067 hectares of land at 204-210 Park Ridge Road, Park Ridge1 which they purchased in December 2005. The land is within Logan City. There is a low-set dwelling house built on the land. [3] The Logan City Council Planning Scheme (“Planning Scheme”) commenced on 17 March 2006. In June 2007, the Council began preparation of the Park Ridge Structure Plan. The objective of the Structure Plan was to inform amendments to the Planning Scheme which would provide for the development of the Park Ridge area over the ensuing 10 to 15 years. The Structure Plan was endorsed by the Council on 25 January 2011. It prescribed a framework for achieving substantial amendment to the Planning Scheme. [4] The Planning Scheme was amended on 11 November 2015 when the Planning Scheme Amendment 2009 No 5 (Park Ridge Structure Plan) (“2009 Amendment”) was promulgated. The 2009 Amendment affected the zoning of the applicants’ land. [5] Prior to the commencement of the 2009 Amendment, part of their land was in a Non- Urban Zone and the other part was in an Investigation Zone. Upon its commencement, the 1 Lot 9 on RP 97339. -- 2 of 11 -- 3 first-mentioned part of the land was placed in a Non-Urban zone (within a sub-area called NU7). By virtue of amendments then made, this Non-Urban Zone was subject to provisions which in respects differed from those that had applied to the antecedent Non-Urban Zone. The other part of the land was placed in a Conservation Zone (within a sub-area called CZ14). Both of the current zones are within the Non-Urban and Conservation Locality under the Planning Scheme.2 [6] Section 705 of the Sustainable Planning Act 2009 (Qld) (“SPA”) provides as follows: “Compensation for interest in land being changed to public purpose An owner of an interest in land is entitled to be paid reasonable compensation by a local government if because of a change the only purpose for which the land could be used, other than the purpose for which it was lawfully being used when the change was made, is for a public purpose.” The word “change” for an interest in land is defined in s 703 SPA to mean: “a change to the planning scheme or any planning scheme policy affecting the land.” [7] Relying on the change to the zoning of their land, the applicants lodged a claim with the Council to be paid reasonable compensation under s 705. On 10 September 2012, the Council, acting under s 710(1)(c) SPA, refused all of the claim. It did so on the basis that the applicants were not entitled to be paid compensation under the provision because the change to the zoning of their land had not had the effect required for it to apply. [8] Where reasonable compensation is payable under s 705, the method of calculation of it is fixed by s 711 SPA. On the basis that the market value of the land prior to the change was $2,500,000 and that its market value as a result of the change, is nominal, the compensation claimed by the applicants as calculated in accordance with the statutory method is $2,500,000. [9] On 9 October 2012, the applicants filed a Notice of Appeal3 in the Planning and Environment Court at Brisbane by which they challenged the Council’s refusal decision and sought orders that their appeal be allowed and that the Council pay them compensation in an amount of $2,500,000. An order was made on 25 July 2013 for the determination, as a preliminary matter, of the separate question whether the Council is liable to pay compensation to the applicants under s 705.4 [10] A hearing for determination of the separate question was held in March 2014. Consistently with the directions made, the quantum of any compensation payable was not in issue at that hearing. On 7 April 2015, orders were made that the Council is not liable to pay compensation to the applicants and that the appeal be dismissed.5 Application for leave to appeal [11] On 18 May 2015, the applicants filed an application for the leave required by s 498(2) SPA to appeal to this Court against those orders.6 Conformably with the practice of 2 This Locality also includes a Public Open Space Zone. 3 AB234-237. 4 AB288-289. 5 AB317. 6 AB290-292. -- 3 of 11 -- 4 this Court and with the concurrence of the parties, argument on the merits of the appeal was heard in conjunction with the hearing of the application for leave. [12] At the hearing, counsel for the applicants referred the Court to a number of provisions in the Planning Scheme as a basis for development of his oral submissions. It is convenient to summarise those provisions, or their respective effects, at this point. Planning scheme provisions [13] Part 1 of Chapter 2 of the Planning Scheme is concerned with desired environmental outcomes. Section 2.1.5(1)(a) therein envisages an integrated and orderly pattern of land use and infrastructure networks as are specified on Map 2.1.5A, a map of the Park Ridge Structure Plan area. On that map, a Green Space Network (NU, CZ) is designated. This is an infrastructure network. The applicant’s land is within it. Section 2.1.5(5) envisages development in the network to provide infrastructure in accordance with the designation. Desired environmental outcomes for land within the Non-Urban and Conservation Locality are stated in s 2.1.5(4). At the level of such outcomes, this Locality is protected and enhanced to provide for conservation areas, parks and waterways. [14] Chapter 3 of the Planning Scheme contains the assessment provisions for localities, zones and sub-areas. Part 4 thereof relates to the Non-Urban and Conservation Locality which, as I have noted, includes the Conservation Zone and the Non-Urban Zone. The Conservation Zone is broken into sub-areas CZ1 to CZ14 and the Non- Urban Zone into sub-areas NU1 to NU7.7 [15] Division 4 of Part 4 contains the provisions which relate to the Non-Urban and Conservation Locality and Zones Code. Section 3.4.8 specifies the type of compliance required in order for a development to be compliant as a self-assessment development, a code assessable development, or an impact assessable development respectively. For a code assessable development,8 the compliance required is with specific outcomes for the Non-Urban and Conservation Locality and Zones Code applicable to the development. [16] The specific outcomes for the CZ14 sub-area of the Conservation Zone are listed in Table 3.4.26. In s 3.4.26, Specific Outcome 1 is that the development protects and enhances the role of the sub-area as a conservation area which, amongst other things, provides for the development of stormwater quality enhancement infrastructure; enhances corridors through the location of parks and other open space facilities within the sub-area; and provides for an integrated pedestrian and cycleway network. Specific Outcome 2, which is of particular significance for this application, is as follows: “Development protects the amenity and character of the sub-area as a district level wildlife corridor by ensuring specific development being- (a) a recreation activity is limited to public recreation or nature based recreation; and (b) food outlet and restaurant are carried out with, but subordinate to, a recreation activity.” 7 Section 3.4.1. 8 A development which is to undergo code assessment pursuant to s 313 SPA by an assessment manager or ss 255A and 313 SPA where the assessment is to be managed by the chief executive. -- 4 of 11 -- 5 [17] The pattern for Specific Outcomes for the NU7 sub-area of the Non-Urban Zone is similar.9 Specific Outcome 1 is that the development protects and enhances the role of the sub-area as a conservation area which, amongst other things, functions as a wildlife and waterway corridor, and provides recreation connection along the corridor’s emerging communities. Specific Outcome 2 for this sub-area is in terms identical with that for the CZ14 sub-area with the exception that placitum (a) thereof does not contain the words “or nature based recreation”. [18] Specific Outcome 2 is reflected in Assessment Tables in Part 4 of Chapter 3 in which a material change of use to a food outlet is listed as code assessable for the CZ14 and NU7 sub-areas “where it is carried out with, but subordinate to, a recreation activity”.10 The listing is in the same terms for each sub-area for a material change to a restaurant use.11 [19] It remains to note that Table 3.4.10 in Division 4 of Chapter 3 specifies overall outcomes for the Non-Urban and Conservation Locality. For the CZ14 sub-area, the overall outcome of development is the protection and enhancement of the existing and planned character and amenity of the sub-area “that relates to a district level wildlife corridor linking core conservation areas and other remnant bushland to provide multiple benefits, in particular, the protection of bushland and riparian habitats and the establishment of a wildlife corridor across Park Ridge”. For the NU7 sub-area, the overall outcome for development is the protection and enhancement of the existing and planned character and amenity of the sub-area “that predominantly relates to the riparian and terrestrial corridor between Koplick Road and Crestmead Park and provides stormwater conveyance and treatment, local wildlife corridor values and a spine for parks and other open space required for emerging communities”. However, as noted, the code assessability of a proposed development is not referenced specifically to overall outcomes, as it is to specific outcomes. The decision at first instance [20] The learned primary judge identified the issue in the case before him as whether a use for a food outlet or for a restaurant subject to being “carried out with but incidental and subordinate to” a public recreation is a use for a public purpose.12 That was because argument on the appeal had focused upon whether either of such uses of the applicants’ land would have the consequence that the land would be used for a purpose other than a public purpose. If either use had that consequence, then s 705 could not be engaged. [21] That his Honour’s identification of the issue was referenced to those two uses can be traced to a submission for the Council that code assessable uses available for the applicants’ land after the 2009 Amendment included “home business”, “food outlet” and “restaurant”. The submission continued with the proposition that since these code assessable uses were available, it was unnecessary to consider the availability of any impact assessable uses.13 [22] His Honour rejected the Council’s submission insofar as it related to relevance of a “home business” use. He did so on the footing that such a use would be for the purpose for which the land was being lawfully used at the time of the change and 9 See Table 3.4.33. 10 AB216. 11 AB225. 12 Reasons [80]. 13 Council’s Outline of Submissions paragraphs 53, 54: AB279. -- 5 of 11 -- 6 therefore within the scope of the exception in s 705.14 I mention also that his Honour’s use of the qualifying adjective “incidental” in the formulation of the issue is without foundation in the Planning Scheme. Its origin appears to have been a misquotation of ss 3.4.26 and 3.4.33 in the written submissions for the applicants at first instance.15 [23] As to interpretation of s 705, the learned primary judge concluded that the expression “could be used” in the section has the connotation of possibility rather than probability.16 It was appropriate, his Honour said, to enquire whether, notwithstanding the change, it was possible to use the land in question for a purpose other than a public purpose. His Honour also allowed evidence of Mr G Ovenden, a town planner called in the Council’s case, as to the types and scale of a food outlet or restaurant that could be carried out subordinate to public recreation conformably with Specific Outcome 2 (b).17 There is no challenge to his Honour’s allowance of that evidence in this appeal. [24] The learned primary judge had regard for authority at the appellate level concerning the meaning of the word “purpose” when used in a land use context. He obtained guidance from the decision in Foodbarn Pty Ltd v Solicitor-General.18 Speaking of that case, he said: “[70] In [Foodbarn], the issue before the Court of Appeal in New South Wales was about the "purpose' for which premises were used. Planning scheme ordinances prohibited in light industrial zones the use of buildings for ‘shops ...’, ‘Shop’ was defined in the ordinances to mean ‘a building ... used ... for the purpose of selling ... or offering for sale by retail, goods …’ ‘Warehouse’ was defined to mean ‘a building ... used ... for the storage of goods ... pending their sale and distribution to persons ‘engaged in the retail trade.’ A warehouse was not prohibited in light industrial zones. Two buildings were used for the sale of food stuffs. The business at each building was similar to that of an ordinary supermarket. In each building emphasis was placed on supplying the wholesale trade but retail customers were also encouraged. Glass JA, with whom Samuels JA and Hutley JA agreed, observed: It may be deduced that where a part of the 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, Doubtless the same principle would apply where the dominant and servient purposes both relate to the whole and not to separate parts ... Where the whole of the premises is used for two or more purposes none of which subserves the others, it is, in my opinion, irrelevant to inquire which of 14 Reasons [77]. 15 AB261. 16 Reasons [61]. 17 Reasons [64], [65]. Mr Ovenden’s report dated 7 March 2014 (part of exhibit 1 at first instance), to which he was referred in his evidence-in-chief, is not included in the Appeal Record. However, his earlier report dated 3 February 2013 (also part of exhibit 1) is included. In it, Mr Ovenden stated that a low intensity use as a food outlet or restaurant would be capable of being approved: AB161. 18 (1975) 32 LGRA 157. -- 6 of 11 -- 7 the multiple purposes is dominant. If any one purpose, operating in a way which is independent and not merely incidental to other purpose is prohibited, it is immaterial that it may be overshadowed by the others whether in terms of income generated, space occupied or ratio of staff engaged. The ordinance is nonetheless being disobeyed. [71] Significantly, the Court in Foodbarn regarded it as a question of fact whether premises were used for one purpose or more than one purpose. The trial judge had specifically found that sales by retail were not ancillary to other purposes. With respect, on the facts in that case the finding was clearly correct. The selling of goods by retail within the premises did not subserve the storage of goods pending their sale to persons engaged in the retail trade.”19 [25] The decision by the learned primary judge of the issue he had identified for decision is to be found in the concluding paragraphs of his reasons for judgment. His Honour arrived at the ultimate conclusion on the issue in the following way: “[80] The issue is in this case whether a use for a ‘food outlet’ or for a ‘restaurant’ subject to being ‘carried out with but incidental and subordinate to’ a public recreation is a use for a public purpose. [81] ‘Subordinate’ and ‘incidental’ are words defining the code assessable use. They are also words used by the court in the passage set out at [64] (sic)20 above from Foodbarn. The words were used in Foodbarn as the kind of descriptors appropriate for a purpose which would justify ignoring the purpose and treating the land as having only the purpose of the other and dominant purpose. [82] The fact that a restaurant, or kiosk must be ‘carried out with but incidental and subordinate to’ a public recreation is relevant. The words ‘carried out with but incidental and subordinate to' help define and limit the available restaurant use. But those descriptors in the definition of the restaurant use do not inevitably mean that on the facts some form of restaurant use cannot become a commercial purpose of the land distinct from the public purpose arising from public recreation. [83] ‘Subordinate’ and ‘incidental’ in the context of a restaurant in a park suggest that the use for a restaurant should not interfere with the public recreation. It does not suggest that the restaurant use may not be of such significance as to amount to a separate purpose for which the land would be used. A restaurant may attract custom from persons who are not park users. Use for a restaurant incidental to and occupying a small section of a park would have the consequence that a public purpose was not the only purpose for which the land could be used. The restaurant and the park are appropriately described as two complementary uses and two complementary purposes. If the 19 At 161. 20 The reference to “[64]” is evidently an intended reference to “[70]”. -- 7 of 11 -- 8 purpose of such a restaurant or such a kiosk needs to be described by one of the ‘purposes’ found in the SPA then ‘commercial’ appears most appropriate. What matters is not the name for the purpose but that Council has satisfied its onus of proof that the subject land could be used for a purpose other than only a public purpose and other than the purpose for which it was being used when the change was made.”21 [84] It follows that the answer to the preliminary question is ‘No’.” The grounds of appeal [26] The application for leave to appeal is supported by an affidavit to which is exhibited a proposed notice of appeal.22 This document lists some seven grounds of appeal. However, in written and oral submissions, the applicants have not addressed these grounds severally. The approach taken has been to advance several propositions as to the correct instruction of s 705, to identify a single error said to have been made by the learned primary judge, and then to argue why it is said that an error was made. [27] The orders sought in the notice of appeal document are that the appeal be allowed with costs; that the orders of the learned primary judge be set aside; that the separate question be answered in the applicants’ favour; and that the matter be remitted to the Planning and Environment Court for the determination of the quantum of the compensation payable. [28] It is convenient to consider this application within the framework of the applicants’ submissions. Moreover, it is appropriate to do so given that, to a large degree, the grounds of appeal as set out are steps in the development of an argument that there has been an error, rather than expressions of separate and discrete errors of law. The applicants’ submissions – construction of s 705 [29] There are three constructional propositions advanced in the applicants’ Outline of Argument.23 The first is, properly construed, s 705 does not mean that, putting aside the existing purpose for which the land was being lawfully used at the date of the change, the section can never be satisfied unless, after the change, use for a purpose other than a public purpose is prohibited as a matter of law. This proposition need not be considered in any detail on this application. His Honour did not adopt a contrary construction of the section. The Council did not then, and on this application does not, contend for a contrary construction. [30] The second proposition is that the word “purpose”, when used in s 705, has the recognised meaning that it has in planning law. That meaning is one that is distinct from the meaning of the word “use” when used as a noun in the context of a permissible use in a town planning context. The distinction was concisely explained by Kitto J in Shire of Perth v O’Keefe24 in his description of a purpose as “the end which is seen to be served by a particular use of premises”. [31] This proposition, too, is uncontroversial in these proceedings. His Honour did not proceed on a footing that the words are synonymous. Nor did, or now does, the Council submit that they are synonyms. For present purposes it is sufficient to observe that use and purpose are not synonyms in this provision. 21 The onus of proof lay on the Council pursuant to s 493(7) SPA. 22 AB311-315. 23 Ibid paragraphs 7-12. 24 (1964) 110 CLR 529 at 534 (Menzies and Owen JJ agreeing). -- 8 of 11 -- 9 [32] Further, there is no interdependence or correlation between use and purpose such that each permissible use of land defines a separate purpose in its use. To put it another way, it is open, if otherwise appropriate to do so, to characterise a number of permissible uses of certain land as constituting the use of the land for a single purpose. That concept is well supported by authority.25 [33] The third proposition is one which the applicants cast in the following terms: “… the question posed by the section is that of whether it is more likely than not, or at least a possibility which is not illusory, that the applicants could, after the change, obtain a development permit for material change of use for a new use of the land which would not be a use for public purposes. In any given case, this will be a question of fact, to be determined on the evidence presented, albeit by reference to the relevant scheme provisions about assessment.” [34] It is said, for the applicants, that this submission was urged for them at first instance and, “seemingly accepted” by the learned primary judge. [35] As I read his Honour’s reasons, he did accept that the question whether the only purpose for which land could be used after a change is a public purpose, is not one to be answered exclusively by reference to text of the town planning legislation and instruments relating to permissible uses of the land. His Honour held that where a use indicative of another purpose was subject to application and approval, a comprehensive answer would also depend upon that use not being “illusory”. If evidence showed that such an application would be likely to be refused, then such a use should not be regarded as a use for which the land might be used.26 [36] Notwithstanding, the applicants’ third proposition is not one that can be endorsed in totality. Its internal ambivalence in stating the question in terms of probability or, if not that, possibility, is sufficient reason in itself to reject it. [37] To my mind, some confusion has entered into the discourse in this case by the inexact use of the words “possibility” and “probability”. In context, possibility was not used by his Honour as a measure of likelihood of occurrence. As used by him, it has the connotation of potentiality. Thus, in s 705, the expression “could be used” in relation to a purpose means “has the potentiality to be used lawfully” for that purpose. The ascertainment of potentiality for use in any case is a task to be undertaken generally in accordance with that adopted by his Honour. When an approval for a particular use is required, whether approval for that use is likely to be refused so as to render it illusory, is a matter to be determined in accordance with the evidence on the balance of probabilities. [38] It is unnecessary to consider this proposition further. It does not have a direct role to play in resolving whether the learned primary judge erred as the applicants contend he did. The applicants’ submissions – alleged error at first instance [39] The error which the applicants submit the learned primary judge made was to characterise a use of the land as a restaurant or food outlet which is carried out with, but subordinate to, public recreation, as serving a concurrent separate commercial 25 See, for example, O’Keefe at 534; Warringah Shire Council v Raffles [1979] 2 NSWLR 299 per Waddell J at 301. 26 Reasons [62], [63]. -- 9 of 11 -- 10 purpose distinct from a public purpose.27 They submit that such a use in those circumstances would be for the same public purpose as is served by the public recreation with which it is carried out, and not for a separate purpose. [40] In developing the submission, the applicants argue that, in context, the word “subordinate” has the meaning of “ancillary”, such that a use as a restaurant or food outlet would be ancillary to the public recreation and therefore carried out for a public purpose. Reference is made to the observation of Basten JA in Toner Design Pty Ltd v Newcastle City Council28 where, speaking of the meaning of the expression “ancillary to other development” in the Environmental Planning and Assessment Regulation 2000 (NSW), his Honour stated that the relationship required by it goes beyond interdependence and connotes a dominant and subservient relationship.29 Drawing on that observation, the applicants submit that a use as a food outlet or restaurant subordinate to public recreation would be subservient to the latter, serving it and not fulfilling an independent purpose distinct from a public purpose. The Council’s submissions – alleged error at first instance [41] The Council submits, and as the learned primary judge acknowledged,30 that s 705 contemplates that land may be used concurrently for more than one purpose. Where land is so used, application of the provision does not involve identification of a dominant purpose which is to be regarded as the sole purpose for which the land is used. Thus, where land can be used for several purposes, each is to be regarded as a purpose in applying s 705. [42] A use of the land as a restaurant or a food outlet would be a commercially based venture, that is to say, it would be run as a business. Its customers would not be restricted to those who resorted to the land to engage in a public recreation activity. These factors are sufficient to signify use for a commercial purpose. That such a use is subordinate to public recreation would not deprive the purpose for which the land was used as a restaurant or food outlet of its commercial identity. Discussion [43] Informed by the description of a purpose given by Kitto J in O’Keefe, I consider it to be an important step in resolving this issue to identify clearly what end it is that is to be served by use of the applicant’s land as a restaurant or food outlet. Speaking broadly, the operation of either of a food outlet or a restaurant is an activity distinct in character from public recreation. It has the hallmark of a business, that is to say, the undertaking of multiple transactions with members of the public in which food or meals are provided. Moreover, the business, to be sustainable in the long run, needs to be carried on profitably or, at least, to cover expenses from revenue. Activity of this kind bespeaks that in using land as a restaurant or food outlet, the end served is that of carrying on a business on a commercial basis. That, then, is the purpose for which the land is used. [44] Here, use of the land as a restaurant or food outlet would have to be carried out with, but subordinate to, a recreation activity, that is to say public recreation or, in the case of sub-area CZ14, public recreation or nature based recreation. Consideration needs to be given to whether that requirement displaces a commercial purpose. 27 See, especially at Reasons [83]. 28 (2013) 198 LGERA 203. 29 At 207. 30 Reasons [74]. -- 10 of 11 -- 11 [45] The requirement consists of two elements:  that the food outlet or restaurant be carried out with a recreation activity; and  that it be subordinate to the recreation activity. [46] The first element connotes contemporaneity and complementarity between use as a food outlet or restaurant and a recreation activity. In my view, it neither requires, nor envisages, that such a use be an integral part of the recreational activity such that the two together comprise a single, unitary activity or use. [47] Furthermore, the functional differences between a restaurant or food outlet, on the one hand, and a recreation activity, on the other, resist a characterisation of them as components of the one activity. The differences are all the more marked when account is taken of the fact that those who avail themselves of the food outlet or restaurant need not be the same individuals as those who participate in recreation activity on the land. [48] The second element, that the restaurant or food outlet be subordinate, in my view, has the meaning that it must be secondary to the recreation activity with which it is carried out. I think that the learned primary judge was correct to attribute to the element a connotation of “non-interference”. That is to say, the use as a restaurant or food outlet must be of a type and scale that does not interfere operationally with the recreation activity with which it is carried out. I do not perceive within the element an added layer of meaning with an additional connotation of subservience such as might allow it to be said that the end served by the food outlet or restaurant is the recreation activity in question. Here again, an absence of any requirement that those who patronise the restaurant or food outlet be those who participate in a recreation activity, is significant. [49] Taking these considerations into account, I have come to the conclusion that a restaurant or food outlet lawfully conducted on the applicant’s land would be a use of the land for a commercial purpose, and not for a public purpose. The learned primary judge did not err in this regard. His resolution of the issue identified by him is, I think, correct. Leave to appeal and disposition [50] To this point, the meaning, scope and application of s 705 SPA has not been considered by this Court. The provision, as a source of entitlement to compensation, is an important one. I would, on those accounts, grant leave to appeal. However, for the reasons given, the appeal must be dismissed with costs. Orders [51] I would propose the following orders: 1. Leave to appeal granted. 2. Appeal dismissed. 3. Appellants to pay the respondents’ costs of the application and the appeal on the standard basis. [52] McMEEKIN J: I have had the opportunity to read the draft reasons of Gotterson JA. I agree with those reasons and the orders his Honour proposes. -- 11 of 11 --