Cazalys Cairns Ltd v Cairns Regional Council & Ors; AFL Cairns Ltd v Cairns Regional Council & Ors [2008] QPEC 103

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Cazalys Cairns Limited v Cairns Regional Council & Ors; AFL Cairns Limited v Cairns Regional Council & Ors [2008] QPEC 103 PARTIES: Appeal No. 80 of 2008 CAZALYS CAIRNS LIMITED (ACN 054 194 973) (Appellant) v CAIRNS REGIONAL COUNCIL (Respondent) CAIRNS JOCKEY CLUB INC (ABN 43 601 504 209) (Co-Respondent) CHIEF EXECUTIVE, DEPARTMENT OF MAIN ROADS (Second Co-Respondent) CHIEF EXECUTIVE, DEPARTMENT OF TRANSPORT (Third Co-Respondent by Election) Appeal No. 81 of 2008 AFL CAIRNS LIMITED (ACN 010 616 798) (Appellant) CAIRNS REGIONAL COUNCIL (Respondent) CAIRNS JOCKEY CLUB INC (ABN 43 601 504 209) (Co-Respondent) CHIEF EXECUTIVE, DEPARTMENT OF MAIN ROADS (Second Co-Respondent) CHIEF EXECUTIVE, DEPARTMENT OF TRANSPORT (Third Co-Respondent by Election) FILE NO/S: 80 of 2008; 81 of 2008 DIVISION: Planning & Environment PROCEEDING: Appeal ORIGINATING COURT: Cairns DELIVERED ON: 1 December 2008 DELIVERED AT: Cairns -- 1 of 8 -- 2 HEARING DATE: 20 November 2008 JUDGE: Everson DCJ ORDER: Declare that the proposed development falls within the definition of Indoor Sport and Entertainment as that term is defined in the respondent’s planning scheme. Declare that the public notification of the development application was appropriate in the circumstances. CATCHWORDS: PLANNING – PLANNING AND ENVIRONMENT – CATEGORISATION OF USE – whether “Tavern” or “Indoor Sport and Entertainment” – adequacy of public notification. COUNSEL: N Kefford Counsel for the appellants S Ure Counsel for the respondent T Fantin Counsel for the co-respondents SOLICITORS: MacDonnells Law for the appellant King & Company for the respondent P&E Law for the co-respondent Introduction [1] The co-respondent in each of these appeals is a non-profit sporting and recreation club that was formed in 1884. It has occupied land at 593 Mulgrave Road, Woree (“the land”) since 1911. From here it conducts the activities of the Cannon Park Racecourse which is the home of the Cairns horse racing industry. 1 By a development application dated 9 July 2007 (“the development application”) the co- respondent sought approval for an “indoor entertainment (social club) facility” to compliment the existing use of the land which was described in the development application as a “racecourse with existing club buildings”.2 On 13 March 2008 the respondent approved the development application subject to conditions.3 [2] The proceedings before me are identical submitter appeals pursuant to section 4.1.28 of the Integrated Planning Act 1997 (“IPA”). In each appeal the appellant has raised a number of preliminary legal issues for determination by the Court. These are summarised in the appellants’ outline of argument as follows:- “(a) whether the proposed development is properly characterised as a “Tavern” for the purposes of Cairns Plan 2005 (“Cairns Plan”); (b) whether the Application was a properly made application for the purpose of s 3.2.1 of IPA; (c) whether the public notification of the Application was defective by reason of the description given for the proposal in the relevant notice and, if so, whether the defects in the public notification of the Application ought be excused pursuant to s 4.1.5A of IPA; and 1 Affidavit of Mr Row filed 18.8.08, para 2 2 Affidavit of Mr Row filed 8/8/08 ex “DWR 1” 3 Appeal Book, p 234 -- 2 of 8 -- 3 (d) whether the Council’s decision of 13 March 2008 was ultra vires.” [3] The relief, the subject of subparagraphs (b) and (d), is dependant upon a finding by the Court that the proposed development should have been applied for and assessed as a proposal for a “Tavern” rather than for “Indoor Sport and Entertainment”, which is what occurred. The proposed development [4] In the acknowledgment notice dated 16 July 20074 the proposal was described as “Indoor Sport and Entertainment in addition to the continuation of Existing Racecourse Use”. Although appearing throughout the material which has been placed before me, details of the current use of the land have helpfully been consolidated in exhibit 2. Twelve race meetings are conducted from the land each year, including the prominent two day Cairns Amateurs Race Carnival. In addition, approximately 40 greyhound race meetings are conducted each year. There are also phantom race meetings and a TAB facility with a number of television screens. The current bars and kitchen facilities are also used for 60-70 private functions per year. [5] The proposed development is described in the evidence placed before me as a proposed club house incorporating areas/decks and terraces for viewing racing, restaurant/dining areas, bars, gaming areas, function rooms and betting areas.5 A plan showing the floor areas of the proposed development is also in evidence6 . This document reveals the floor area corresponding to each of the components of the proposed development as follows:- COMPONENT OF PROPOSED DEVELOPMENT FLOOR AREA Spectator viewing areas/decks and terraces 858m Restaurant/dining areas 475m Bars 237m Gaming areas 438m Functions rooms 308m Betting auditorium 176m [6] Exhibit 2 also contains a useful summary of the activities envisaged by the proposed development. It is intended that the same number of race meetings and phantom race meetings would continue, however the TAB facility would be open during the week rather than just at race meetings as currently occurs. Gaming machines would be installed and the function rooms, dining area and betting auditorium in addition to the viewing terraces, are proposed to overlook the racecourse. In the planning report in support of the proposed development7 the manner of operation of the proposed development is summarised as follows:- 4 Appeal Book p 56 5 Affidavit Mr Row filed 10 November 2008 para 26 6 Ibid ex “DWR 10” 7 Appeal Book p 23 -- 3 of 8 -- 4 “As part of the redevelopment of Cannon Park, the Cairns Jockey Club therefore proposes to construct a new social club house facility that can trade 7 days per week, 365 days per year. The proposed Club house facility will cater for both CJC members and the general public as social members by providing an indoor entertainment facility with restaurants, bars, full gaming and betting facilities.” [7] It was submitted by Ms Kefford, who appeared on behalf of the appellants that it was the intention of the co-respondent to provide a public facility. In response, Ms Fantin, who appeared on behalf of the co-respondents made reference to the rules of the co-respondent8 . A number of different classes of membership are provided for. The development manager of the co-respondent, Mr Row deposes to the fact that in early 2008 the co-respondent amended its rules to allow for a class of restricted members who can be members of the social club for a nominal yearly fee without having to be full members of the club. [8] Material was also placed before me demonstrating that the co-respondent had applied to the Liquor Licensing Division for a club licence to permit it to sell liquor and operate gaming machines in circumstances where the rights to purchase and consume liquor and operate gaming machines, contemplated the operation of a club as opposed to a general licence which was expressed in a summary from the Liquor Licensing Division as “the type of licence required to run a hotel or tavern”.9 This evidence was objected to by Ms Kefford. I expressed the view that the class of the liquor licence cannot be seen as being determinative of the categorisation of the use. I uphold the objection to this extent. The relevance of this evidence is constrained to reinforcing that the proposed development cannot be truly said to be intended to be open to members of the general public, rather it reinforces the submission that it is intended to operate as a club, albeit with different classes of members. The planning context [9] The development application is governed by the Cairns Plan 2005 (“Cairns Plan”) which is the current planning scheme of the respondent. The land is contained within the Inner Suburbs District and is included in the Sport and Recreation Planning Area. “Indoor Sport and Entertainment” is a defined use which is impact assessable in the Inner Suburbs District. “Tavern” is a defined use which is an impact assessable (inconsistent use) in the Inner Suburbs District. The definition of “Tavern” is found at paragraph 5.3.4 under the heading “Business and Commercial Uses”. It is in the following terms:- “Means the use of premises for: • The sale of liquor for consumption on or off the premises; • Dining activities; • Entertainment activities, including gaming machines. The use may include accommodation for tourists or travellers. The use includes facilities, described as hotel or tavern.” [10] The term “Indoor Sport and Entertainment” is defined under the heading “Recreation” at paragraph 5.3.7. It is in the following terms:- 8 Affidavit of Mr Row filed 10 November 2008 ex “DWR 7” 9 Ibid paras 10-14 and ex “DWR 4”, “DWR 5” and “DWR 6”. -- 4 of 8 -- 5 “Means the use of premises for sport, physical exercise, recreation or public entertainment predominantly within a building. The use includes facilities commonly described as sports centre, gymnasium, amusement and leisure centre, cinema, dance club, music club, nightclub, reception room, theatre, convention centre or function centre.” [11] The Sport and Recreation Planning Area Code appears at paragraph 4.5.17 of the Cairns Plan. It applies to development in the Sport and Recreation Planning Area. It is stated that the purpose of this Code is to facilitate the achievement of certain desired development outcomes for the Sport and Recreation Planning Area, including opportunities to facilitate “sporting clubs using playing fields to establish club facilities”. The term “playing fields” is not defined in the planning scheme. In the Macquarie Concise Dictionary10 the term is defined as a “field or open space used for sports, athletics etc”. The categorisation issue [12] It is often said that planning schemes are not drawn with the precision of a parliamentary draftsman. Not surprisingly, arguments as to the correct categorisation of uses have occupied the courts for many years. In Shire of Perth v O’Keefe11 Kitto J stated that the correct approach was to ask “what, according to ordinary terminology, is the appropriate designation of the purpose best served by the use of the premises at the material date.” [13] More recently, Rackemann DCJ expressed the approach to be undertaken by the Court in the following terms 12 :- “In determining the description which is applicable, the Court must undertake its task of characterisation in a practical and common sense way to determine the appropriate genus which best describes the activities in question. Where there are two or more defined purposes which are apt to cover a particular proposal, a “best fit” approach is appropriate.” Other more general considerations are also apposite. In Project Blue Sky Inc v Australian Broadcasting Authority13 the majority of the High Court relevantly observed that conflicting statutory provisions should be reconciled as far as is possible. It was further stated:- “A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions.”14 10 4 th Edition Macquarie University, 2006 11 (1964) 110 CLR 529 at 535 12 Yu & Leung v Brisbane City Council & Anor [2006] QPELR 102 at 104 13 [1998] HCA 28 at para 70 per McHugh, Gummow, Kirby and Hayne JJ 14 Ibid -- 5 of 8 -- 6 [14] On behalf of the appellants Ms Kefford submits that each of the cumulative elements of the definition of Tavern is satisfied by the proposed development and that the balance of the definition is merely illustrative, but not determinative, of what constitutes a Tavern. Conversely, she submits that the proposed development is not intended to be used predominantly for the type of sport and physical exercise within the contemplation of the definition of Indoor Sport and Entertainment. She urges that the proposed development be looked at in isolation from the surrounding racecourse uses in determining what the proper categorisation of the proposed development is. [15] On the other hand, Ms Fantin, on behalf of the co-respondent, stressed the importance of placing the proposed development within its context and noted the inter-relationship between the proposed development and the racecourse, having particular regard to the fact that the largest single component of the proposed club house consists of the spectator viewing decks overlooking it. [16] On behalf of the respondent, Mr Ure observed that if the proposed development was to be classified as a Tavern it would mean that facilities which are unarguably club facilities, would be rendered an inconsistent use in the very planning area in which the club is situated, which would be an absurd result. [17] What then, according to ordinary terminology is the appropriate designation of the proposed use? Which is the “best fit” definition for the proposed development? The definition of Tavern is such a wide one that numerous prospective uses which would not ordinarily be considered to come within the definition of a tavern could conceivably be caught by it. As was noted in the course of the hearing by me, an RSL club would clearly fall within this definition. A common sense approach would suggest that such a result may be seen by many to be incongruous. As Ms Fantin observed, just because it has webbed feet and a bill does not mean it is a duck, a closer examination may reveal it is a platypus. That appears to be a pertinent analogy on the facts before me. Just because a use fits within a particular definition does not necessarily mean that it is the appropriate definition for the use. [18] As for the definition of Indoor Sport and Entertainment, it is true that it contains a reference to “physical exercise”, however this is one of many alternate activities described which include “sport” and “recreation”, two extremely broad concepts. Sport is defined in the Macquarie Concise Dictionary15 as inter alia, “an activity pursued for exercise or pleasure”, including racing and recreation is defined as including “refreshment by means of some pastime”. I have no difficulty in concluding that the watching of races and the placing of bets on races, either live at the racecourse, or beamed through TV monitors, constitutes sport and that the balance of the activities proposed in the club house building constitute recreation to the extent that they too are not sport. [19] It is also necessary to have regard to the clear planning intent to facilitate opportunities for sporting clubs within the Sport and Recreation Planning Area to establish club facilities. I am not of the view that it was intended by the term “playing fields” to preclude such facilities for the co-respondent. The use of the racecourse lies at the very heart of its existence. It is clear that the proposed development will compliment existing sport and entertainment facilities at the Cannon Park Racecourse. It is also relevant that the definition of Tavern appears 15 4 th Edition Macquarie University, 2006 -- 6 of 8 -- 7 under the heading Business and Commercial Uses whereas the definition of Indoor Sport and Entertainment appears under the heading Recreation. The latter definition appears better suited to the activities of a club such as the co-respondent and this is a construction which gives effect to the intent of the Sport and Recreation Planning Area Code. [20] I am therefore of the view that the proposed development best fits within the definition of Indoor Sport and Entertainment in the Cairns Plan. The public notification issue [21] The other issue which remains for determination is the question of whether the public notification of the development application was defective by reason of the description given to the proposed development. [22] The proposed development was publicly notified in the following terms:- “Material Change of Use (Impact Assessment) for Indoor Sport & Entertainment in addition to the continuation of Existing Racecourse Use” 16 . [23] In addition the letters sent to adjoining owners stated that the proposal “is to construct a Social Club”.17 [24] It is submitted on behalf of the appellants that the public notification of the development application was defective in that the description given was misleading and insufficient to alert a person who has an interest in the area generally, as to the overall nature of the proposed development. [25] The nature and adequacy of public notification of development applications was considered in Liquorland (Australia) Pty Ltd v Gold Coast City Council18 . In giving the leading judgment of the Court of Appeal, Jones J observed19 :- “For members of the public or the adjoining landowners the place at which the precise details of the proposed development is to be obtained, is not the public notification – be it by newspaper advertisement or by notice board – but rather at the local authority office which is identified in the advertisements along with the time within which submissions would need to be made.” [26] Much material has been placed before me as to the extent of the public interest in the proposed development and the context in which it occurred, however regardless of this, I am of the view that the description of the proposed development utilised in the public notification of it, was sufficient in the circumstances. It adequately conveyed the nature of the proposed development having regard to what was proposed and the legal obligations of the co-respondent. Conclusion 16 Affidavit of Mr Row filed 8 August 2008 paras 4-9 and ex “DWR 2” 17 Ibid para 7 and ex “DWR 3” 18 [2001] 2 QdR 476 19 Ibid at 484 -- 7 of 8 -- 8 [27] On a proper construction of the Cairns Plan, the proposed development falls within the definition of Indoor Sport and Entertainment. Accordingly, there is no basis to the contentions raised by the appellants that the development application was not properly made and the decision of the respondent approving it was ultra vires. [28] I am satisfied that the public notification of the development application was appropriate. Order [29] I declare that the proposed development falls within the definition of Indoor Sport and Entertainment as that term is defined in the respondent’s planning scheme. [30] I declare that the public notification of the development application was appropriate in the circumstances. -- 8 of 8 --