Council of the City of Sydney v Pink Star Entertainment Pty Ltd

[2008] NSWLEC 176

Reported Decision: (2008) 160 LGERA 251

Land and Environment Court

of New South Wales

CITATION:

Council of the City of Sydney v Pink Star Entertainment Pty Ltd [2008] NSWLEC 176

PARTIES:

APPLICANT
Council of the City of Sydney

RESPONDENT
Pink Star Entertainment Pty Ltd

FILE NUMBER(S):

40660 of 2007

CORAM:

Sheahan J

KEY ISSUES:

Construction and Interpretation :- classification of use; definition of "restaurant" and "nightclub"; whether premises have development consent to operate as a nightclub

LEGISLATION CITED:

Casino Control Regulation 2001
Environmental Planning and Assessment Act 1979
Liquor Act 1982
Liquor Amendment (Nightclub Licenses and Trading Hours) Act 1996
Roads Act 1993
Smoke-free Environment Act 2000

CASES CITED:

Auburn Municipal Council v Szabo and Another (1971) 67 LGERA 427
Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404
Crawley v Sydney City Council [1995] NSWLEC 163
Foodbarn Pty Limited and Others v Solicitor-General (1975) 32 LGRA 157
Grace & Anor v Thomas Street Cafe Pty Ltd & Ors [2007] NSWCA 359
Grace & Anor v Thomas Street Cafe Pty Limited & (3) Ors [2006] NSWLEC 547
House of Peace Pty Ltd and Another v Bankstown City Council (2000) 48 NSWLR 498
Loreto Normanhurst Association Inc v Hornsby Shire Council (2002) 122 LGERA 347
Mosman Municipal Council v Denning & 2 (Ors) [2002] NSWLEC 227
North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd and Others (1989) 16 NSWLR 50
Parramatta City Council v Shell Co of Australia Ltd (1972) 2 NSWLR 632
Pink Star Entertainment Pty Limited v City of Sydney [2007] NSWLEC 300
Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd and Others (1991) 25 NSWLR 541
Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305
Ryde Municipal Council v The Royal Ryde Homes & Another (1970) 19 LGRA 321
Shire of Perth v O'Keefe and Another (1964) 110 CLR 529
Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council (No.2) (1993) 78 LGERA 404
The Turnbull Group v North Sydney Council (1998) 101 LGERA 354
Weston Aluminium Pty Ltd v Environment Protection Authority and Alcoa Australia Rolled Products Pty Ltd [2007] HCA 50
Winn v Director-General of National Parks and Wildlife and Others (2001) 130 LGERA 508
Woolworths Ltd v Campbells Cash and Carry Pty Ltd (1996) 92 LGERA 244

DATES OF HEARING:

18 and 19 February 2008

 
DATE OF JUDGMENT: 

21 May 2008

LEGAL REPRESENTATIVES:

APPLICANT
Dr J Griffith SC with Dr S Pritchard
SOLICITORS
Maddocks

RESPONDENT
Ms S Duggan with Mr M Seymour
SOLICITORS
Gadens Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Justice Sheahan

21 May 2008

40660 of 2007

COUNCIL OF THE CITY OF SYDNEY v PINK STAR ENTERTAINMENT PTY LTD

JUDGMENT

Introduction

1 His Honour: These Class 4 proceedings were commenced on 13 July 2007 and concern the operation by the Respondent company of a nightclub called “Ladylux” occupying approximately 70% of the ground floor of premises at 2 Roslyn Street, Darlinghurst, Kings Cross or Potts Point (Lots 2 and 3 in DP 179256).

2 The building at 2 Roslyn Street is a four storey masonry structure largely now used as serviced apartments/suites and/or backpacker accommodation, and known as the “Leisure Inn” (for a long time the Lido hotel/motel or “backpackers”). It is located next door to the Empire Hotel and sits on the northwest corner of Barncleuth Lane, approximately 50 metres from Darlinghurst Road. The site adjoins a mixed use transition area to the east and south, characterised by medium density residential units. The nightclub has no windows or doors to Barncleuth Lane, but the entry alcove is situated in Roslyn Street, approximately 1.5 metres from the lane. The primary frontage to Roslyn Street measures about 6 metres. The rear doors open to a private waste service area with a gate to the lane. The nightclub accommodates 180 patrons, and public entry and exit are via the Roslyn Street door, except in an emergency.

3 The site is located on the fringe of the entertainment precinct of Kings Cross, within the local government area of the City of Sydney, and also within the Elizabeth Bay Heritage Conservation area. There are several other nightclubs in that fringe area, and many in nearby Darlinghurst Road (Exhibit R1). Residential flat buildings, including those above shops facing Ward Street, back onto Barncleuth Lane, directly opposite the eastern façade of the subject premises. Some of No.11 Ward Avenue also has a frontage to Roslyn Street, just across the lane from the nightclub.

4 From 1 January 1989 until 8 May 2003 the premises were in the area of the former South Sydney Council, and the land is situated within Zone 10 “mixed uses zone” under cl.9 of the South Sydney Local Environmental Plan 1998 (“the SSLEP”), which still applies to it. Pursuant to sub-clause 21(3) of that LEP any development not included in subclause 21(2) requires development consent. Development for the purpose of a nightclub is not included in subclause 21(2). Accordingly, the Respondent requires development consent for the use of its premises as a nightclub.

5 The Council contends that these premises do not have, and have never had, such a development consent, and that the only time there was a DA for a nightclub consent, such consent was refused and an appeal against that refusal was dismissed. (I will return to these issues). It seeks declarations to the effect that the use and operation of the premises as a nightclub is not covered by a valid development consent, and that it is, therefore, operating in breach of the Environmental Planning & Assessment Act 1979 (“EP&A Act”). In addition, the Council seeks an order that the Respondent cease the use “immediately, unless and until development consent is obtained for the use”. However, Council sought no interim relief or undertakings from the Respondent.

6 The Respondent claims in response that it does, indeed, have a development consent for the use of the premises as a nightclub, and it relies, in particular, on the consent granted to development application DA-U02-00162 (“the 2002 consent”), or on the operation of s.81A of the EP&A Act upon that consent, or on the consents granted to development applications 44/86/1763 (“the 1986 consent”) and 44/87/0980 (“the 1987 consent”), which were based on an approval given by Council on 26 February 1979 (“the 1979 approval”). The Council does not contest the validity of any of these approvals or consents, only their scope.

7 In the Respondent’s written submissions, the 1979 approval, and the 1986 and 1987 consents are grouped together and referred to as “the Restaurant Consent”, and the 2002 consent is referred to as “the Nightclub Consent”.

8 The relevant provision in s.81A regarding the Respondent’s case concerning the 2002 consent is subs (1) which provides:

“ 81A Effects of development consents and commencement of development

(1) Erection of buildings

A development consent that enables the erection of a building is sufficient to authorise the use of the building when erected for the purpose for which it was erected if that purpose is specified in the development application, subject to section 109M.

Note. Section 109M prohibits the occupation or use of a new building unless an occupation certificate has been issued for the building.”

9 The Respondent asks the Court to exercise its discretion not to impose a “cease use” order for some months if I am “minded to make the declarations”, on the following four grounds:

“(a) The period of prior operation of the premises as a nightclub.
(b) Acquiescence by the consent authority for the use to continue in light of the history of the use and the knowledge of the consent authority. Including, but not limited to, the grant of consent to development application number DA-U02-00162 with conditions of consent purporting to control use of the premises as a nightclub, and the failure to object to the 1997 Licensing Court application for a Nightclub licence.
(c ) The capacity for negative amenity impacts to be controlled.
(d) Prejudice and hardship that will be suffered by the operators of the premises if the relief sought is granted.”

Suggested short minutes of order were submitted to the Court, restricting and regulating (by reference to a Plan of Management and a Security Management Plan) the operation of the premises during that period of suspension.

The Issue for Decision

10 The issue before the Court is whether these premises have development consent to operate as a nightclub. All the evidence before the Court indicates quite clearly that Ladylux operates in what the 2008 community would see as a nightclub format. The premises now consist of a single bar area, dance floor, and seating areas with various items of furniture, including lounge-type seating and low-lying tables, whereas a more “traditional” restaurant would be expected to have a full kitchen on-site, tables and chairs throughout, full meal service available, etc.

11 Neither the relevant environmental planning instruments nor the model provisions contain definitions of “nightclub” and “restaurant”. In earlier times a “restaurant” was taken, by virtue of the model provisions, to be one species of the genus “refreshment room”, a term no longer in vogue among the general community. “Refreshment room” was distinguished from “shop”, and defined, in Ordinance 69 (1983), as “restaurant, café, tea room, eating house, or the like”. “Restaurant” is classically defined, for example by the Roads Act 1993, as “premises in which food is regularly supplied on sale to the public for consumption on the premises”.

12 The question is, therefore, whether, in this present case, a valid consent for “restaurant” authorises the use of these premises as a “nightclub”. Before addressing that question, in terms, it is important to look first at the immediate background to these proceedings, and then at the long history of the premises and their dealings with the Council and other public authorities.

Background to these current proceedings

13 Pink Star Entertainment Pty Ltd apparently took over the premises in September 2004, and was registered as their owner or operator by the Liquor Administration Board (“LAB”) on 18 October 2004. On 19 September 2005 the LAB approved of the licence transfer and the change of name to Ladylux (Exhibit C3, Tab 55).

14 There is common ground between the parties regarding the effect of relevant planning instruments (Day 2, T8 L32-36). The zone objectives in the LEP relevantly include (Exhibit C3, Tab 81 pp 216-217 and Tab 90 p14):

“(g) to minimise any adverse impact on residential amenity by devising appropriate design assessment criteria and applying specified impact mitigation requirements by the use development control plans, and
(h) to ensure that the nuisance generated by non-residential development, such as that related to operating hours, noise, loss of privacy, vehicular and pedestrian traffic or other factors, is controlled so as to preserve the quality of life for residents in the area.”

15 South Sydney Development Control Plan – Urban Design 1997 (“the SSDCP”) places the site within Precinct 3 of the Kings Cross Urban Village/Entertainment area (which is characterised by bars, nightclubs, sex industry related premises, cafes, and various shops and offices) and adjacent to a Mixed Use Transitional Area, the planning intent of the precinct being (Exhibit C3, Tab 82 p221; Tab 91 p139):

“to recognise and encourage entertainment uses in the precinct (particularly at lower levels of buildings) whilst containing these uses to the assigned area to protect the amenity of the surrounding residential areas. Whilst activities in the King's Cross entertainment precinct may be of greater intensity and scale than in other urban villages, they should further Kings Cross’ true urban village character.”

16 Opposite Ladylux in Roslyn Street (at No.7) from 2002 until relatively recently was a small café conducted by Ms Annette Nevin and known as “Café Pralinka”, which operated seven days a week. In the latter period its opening hours were from 1pm till 3am. Ms Nevin was generally in attendance and became closely acquainted with the activities of Ladylux and the behaviour of the public in the vicinity. Ms Nevin still lives in the area (at 3/16 Ward Avenue), although now retired from the café. Ms Nevin has made several objections to Council regarding Ladylux, has given oral evidence in proceedings before Commissioner Hussey (an appeal to extend trading hours) and in these proceedings before me, and swore an affidavit in these proceedings. Her central concerns are the hours of operation, noise and crowd behaviour. She insisted she did not object to the club as such, just the behaviour of its patrons and lack of control. She did not really want to close it down.

17 On or about 16 May 2006, Ms Nevin complained to Susanna Cheng of the Sydney City Council about queuing, noise from the queues, street behaviour, including drinking and littering, all associated, she claims, with Ladylux. She complained that three or four security guards failed to control the patrons on the footpath on either side of the street. She believed that Ladylux should not operate on Sundays and that it should always close at 3am, rather than 6am (Exhibit C3, Tab 71).

18 On 6 June 2006, Ms Nevin submitted a written objection (Exhibit C3, Tab 77) to development application DA2006/564 (“the 2006 DA”), lodged by the Respondent on 10 April 2006, reiterating her concerns. A copy of that letter of objection is annexed to her affidavit in these proceedings. Among other things, she said that the premises are conducted improperly because they are supposed to be a restaurant and there is no kitchen. According to her, staff from the Club “show no control at all and don’t ask these patrons to show concern for the residents”. She cited an incident where two girls “threw up” outside the door of her café. The Barncleuth Lane area is “residential”, and people living nearby need their sleep. In her opinion Sunday nights were the worst as patrons do not arrive until late, and make a lot of noise. 24 hour trading should not be allowed in “this or any other Club in Kings Cross”. Ladylux should operate on weeknights only, 8pm until midnight, and on weekends, 8pm until 2am, but not on Sundays. If it is to open on Sundays, it should be only 8pm until midnight.

19 During her cross-examination before me Ms Nevin acknowledged that there were a number of nightclubs in proximity to her café including “Barons” which was adjacent and above it, and “Favela” behind it (see again Exhibit R1). “Barons” was not allowed to have entertainment and “Favela” had music inside. Patrons queued behind her café. She acknowledged the activities of the other licensed premises in the area. She attributed all the disturbance in the vicinity of her cafe to Ladylux (Counsel for the Respondent submits that this was because it was the most obvious to her in the area). In her evidence, she said she has had issues with many nightclub-type establishments in the area.

20 Ms Nevin acknowledged that the new owners had introduced themselves in late 2004 and that Scott Bailey gave her his phone number in case of complaint and she had never taken advantage of it. On the other hand, she said she had spoken to senior staff (and perhaps the licensee) from time to time.

21 The 2006 DA was lodged by the Respondent after the Council “audited” its consent records regarding Ladylux and informed its operators that “the operation and usage of the nightclub [was] occurring without development approval”. Council threatened to revoke its Place of Public Entertainment (“POPE”) licence unless an appropriate DA was “submitted within 21 days”. The DA sought consent for “the change of use of the premises from a restaurant to a nightclub”. It contended that the premises were “being used as a nightclub with both POPE licence and Liquor licences in place”. (Exhibit C3, Tab 60).

22 The 2006 DA was refused on 7 August 2006 and an appeal was lodged on 15 September 2006 against that refusal. As already noted, Ms Nevin gave evidence in that appeal before Commissioner Hussey, and in her evidence before me she opined that noise continued to be a problem after Commissioner Hussey’s judgment of 30 May 2007. Indeed, she thinks the noise from the speakers within the nightclub became louder and more penetrating. The noise increased substantially when the doors of the nightclub were opened. Ms Nevin deposes that the patrons of Ladylux obstruct the entrance to the “Leisure Inn” apartments next door, spill into Barncleuth Lane, making noise beneath the windows of the residences adjacent to the lane.

23 Two other local residents (Mr Elvin Alberts and Mr Andrew Woodhouse) gave evidence before Hussey C, corroborating Ms Nevin’s consistent observations and complaints (see Exhibit C3, Tabs 73, 81 and 82). Mr Alberts lives in a nearby Ward Avenue apartment and his bedroom window overlooks Barncleuth Avenue. Mr Woodhouse is a local community activist who regularly visited the Café Pralinka to pick up early morning newspapers as part of his job. He is the President of the Potts Point & Kings Cross Heritage Conservation Society Inc. A local police representative also gave evidence. There were also expert planners called by both sides and a court appointed acoustic expert.

24 Hussey C dismissed the Respondent’s appeal on 30 May 2007 – see Pink Star Entertainment Pty Limited v City of Sydney [2007] NSWLEC 300. The learned Commissioner relevantly commented (in par [28]): “I have not given detailed consideration to the applicant (sic) submissions that it has existing consent for a nightclub. That is a separate matter”. Commissioner Hussey determined only “the merits of the proposal”. It is common ground between the parties before me in these proceedings that the learned Commissioner accurately summarised and interpreted the relevant planning instruments. (Day 2, T8 L32-36).

25 The question of a valid consent is squarely before the Court for decision in these proceedings, but the merits issues are not, as such, save for discretionary considerations. I turn now to a survey of the relevant history of the premises.

Key events, decisions and documents

26 The Court has had to review extensive documentary material dating back some 40 years. Obviously a lot of relevant and useful historical documentation has been lost over time, and there are frustrating gaps in the history.

27 During that time the whole of the building, but especially its ground floor, have seen enormous change – in terms not only of their structure and use, but also of trading names, operations, ownership and licensing status, etc. (see LAB search in Exhibit C3, Tab 62). The most relevant dates, events, decisions, and documents, gleaned from all the evidence before the Court, especially in the three volumes of Council documents in Exhibit C3, would appear to be as follows:

The 1979 approval

28 It would appear from the Council records that use of the subject premises as a “refreshment room” commenced on or about 28 April 1964 (Exhibit C3, Tab 1), or at least from a grant of consent to DA 223/68 (operating hours 6.30pm to 3am – see Exhibit C3, Tab 36). It was identified as a “motel kitchen” on 10 April 1972, but also as retail/laundry premises 1971-72. Use as “restaurant” or “coffee shop and restaurant” dates from 1976. On 26 February 1979 the City of Sydney Council resolved to grant consent (on conditions and subject to Ministerial concurrence) to use the ground floor for “flats”, and as a restaurant operating 12 noon to 1am daily (Exhibit C3, Tabs 1-3) – the 1979 approval.

29 The City of Sydney Planning Scheme Ordinance had been gazetted 16 July 1971 (Exhibit C3, Tab 92). Its definition of “motel” envisaged that meals may or may not be provided to “travellers or the general public”. It defined “refreshment room” as “a restaurant, café, tea room, eating-house or the like”, but did not separately define either “restaurant” or “nightclub”.

30 The liquor licensing authorities granted “on-licence (restaurant) 402941” for (apparently) the same hours (12 noon-1am) on 28 September 1982 (Exhibit C3, Tab 16), and Council records (Exhibit C3, Tab 1) show extension of the “refreshment room” or “restaurant” trading hours on 24 November 1982 and 21 July 1986, and note the conversion of the private hotel to strata units on 23 August 1984.

The 1986 Consent

31 Sydney Local Environmental Plan No.61 was made on 20 October 1986 and gazetted on 2 January 1987 (Exhibit C3, Tab 89). One of its “specific aims” (cl.2(2)(k)) was “to confine the mixed retail and entertainment zones to the established areas and prevent their expansion into residential areas”. It does not contain any definitions of “restaurant” or “nightclub”.

32 Development Application (“DA”) 44/86/0967 was refused on 23 October 1986, but DA 44/86/1763 (Exhibit C3, Tab 8) was lodged on 4 December 1986, seeking to vary trading hours, refurbish and soundproof the “existing restaurant” premises, and obtain approval to provide entertainment. The hours sought were 11am to 3am Monday to Saturday and 11am to 1am Sundays. On 18 December 1986 the proponent told Council the premises would have 150 seats and “full kitchen facilities” (Exhibit C3, Tab 9).

33 Although the premises were damaged by fire on 21 January 1987 (Exhibit C3, Tabs 16-17) the DA was partly approved on 23 February 1987, producing the 1986 consent. The variation of hours was refused (Exhibit C3, Tab 10), but the subsequent building application was approved on conditions (Exhibit C3, Tabs 11, 12, 15). During 1987 the Licensing Court granted an extension of liquor trading hours to 11am-6am 7 days a week (Exhibit C3, Tabs 16 and 17).

The 1987 consent

34 On 13 July 1987 DA 44/87/0980 was lodged, seeking extension of trading hours to 12noon to 6am 7 days a week. Again there was reference to 150 seats and a “kitchen”. A Council planner reported on a poor record of complaints about noise, and incompatibility of 6am closing with residential areas (Exhibit C3, Tab 24).

35 On 18 December 1987 Assessor Stewart of this Court upheld a class 1 appeal against the deemed refusal of this DA (Exhibit C3, Tabs 25 and 28), granting consent to the proposed trading hours, and approving the provision of entertainment. He noted that light meals were served to patrons seated at tables, with entertainment by way of cabaret or recorded music. Assessor Stewart was satisfied that “the extended use of the premises as a restaurant would not cause any significant adverse environmental impact”. The word “nightclub” does not appear in the learned Assessor’s judgment. Council’s earlier conditions (on DC44/86/1763) would continue to apply. This decision of the Court represents the 1987 consent.

The advent of “Nightclubs”

36 On 28 February 1989 the LAB issued the subject premises with an entertainment (“music or dancing or both”) authorisation for 180 patrons, and required engagement of a doorman to control patron numbers (Exhibit C23, Tabs 29, 30). A Council minute paper on 5 September 1990 noted a new classification system for entertainment areas. The word “nightclub” does not appear and the subject premises are classified as a “restaurant” (Exhibit C3, Tab 31). In April 1991 and 1992 the Council confirmed the entertainment authorisation, issuing and reissuing POPE licences/certificates (Exhibit C3, Tabs 32-33), which were first granted to the premises on 28 February 1989, and were confirmed by the Council in 2000 to have no expiry date in the absence of any modifying building work (Exhibit C3, Tab 44).

37 On 1 March 1997 the Liquor Amendment (Nightclub Licenses and Trading Hours) Act 1996 commenced. A principal purpose of the Act was to amend the Liquor Act 1982 (“Liquor Act”) “to provide for nightclub licences …”, and to permit the holders of such licences to trade from not earlier than 8pm to no later than 6am (the defined “nightclub trading period”), selling or supplying liquor “whether or not with or as ancillary to a meal”. The Act amended the definition of “restaurant” to distinguish it from “premises to which a nightclub licence relates”, and the 1996 Liquor Regulations define “nightclub” simply as “premises in respect of which a nightclub licence is in force”. The Smoke-free Environment Act 2000 contains the same definition. The definition of “restaurant” in the Liquor Act (like the Roads Act – par [11] above) continues to rely upon “meals … regularly supplied on sale to the public for consumption on the premises”.

38 The 1996 amending Act inserted a new section 23AA in the Liquor Act, under which liquor can be sold on premises enjoying a nightclub licence between noon and 8pm, only if served “with or as ancillary to a meal consumed at a table on the premises”. During the 8pm-6am period liquor can be sold or supplied “with or as ancillary to entertainment”, only if “at least a light meal is available”, if not supplied at a table, to those to whom the liquor is sold or supplied (table not compulsory). The Act also inserts other extensive new provisions regulating premises granted the new nightclub licences (see new sections 35C, 35D, 35E and 54BA).

39 On 24 December 1997 the Licensing Court granted the subject premises nightclub licence 24006580, on surrender of its On-licence (restaurant) 402941, allowing it to trade 12 noon to 6am daily (Exhibit C3, Tabs 31, 34, and 39), and the LAB continues to acknowledge that the premises operate as a nightclub (see Exhibit C3, Tab 55).

Changes in the Planning and Regulatory Regimes

40 As noted above (in pars [4] and [15]) the relevant planning instruments for the present time are the SSLEP, which was gazetted on 24 April 1998 (Exhibit C3, Tab 90), and the SSDCP, which came into force on 2 July 1997 (Exhibit C3, Tab 91). Since 1989 local councils have also taken more responsibility for the regulation of entertainment activities and places used for entertainment (see Council’s written submissions pars 66-76).

41 It is clear from the history that the subject premises, despite frequent changes in name and mode of operation, have served food since (in broad terms) the mid 1960’s, and have served alcohol and provided entertainment since at least 1987. Noise complaints and police intervention and concern have been evident at least from the late 1990s.

42 Gradually over time what was originally a refreshment room, café, or coffee shop has evolved through a phase as a licensed restaurant into what is now regarded as a nightclub. The premises’ use has been variously described in DAs etc submitted to Council over the years. By 1999 their proponent was referring to them as a “restaurant club” (Exhibit C3, Tab 42), or just “nightclub” (Exhibit C3, Tab 43). Council was calling it a “nightclub” by 2000 (Exhibit C3, Tabs 45 and 48), and approved a DA to convert it into hotel rooms (Exhibit C3, Tab 46). In June 2001 the proponents used the term “Restaurant/Nightclub” (Exhibit C3, Tab 48).

43 It is against this background that I now turn to discuss the 2002 consent.

The 2002 consent

44 On 12 November 2001 Council refused DA U01-00545 which sought “conversion of Lido Motel/Hotel into 24 studio units, 6 1 bedroom units, 1 restaurant/nightclub, 2 retail shops, all to be strata titled subdivision”. (Exhibit C3, Tabs 47 and 49). The relevant Council report of 29 June 2001 noted the use of the site as “backpackers and nightclub” and recommended refusal on nine grounds, none of which specifically dealt with the operation of the nightclub, other than No.6 which said “the proposal does not adequately address visual and acoustic amenity concerns related to the roof top area and the impact of the nightclub”. (Exhibit C3, Tab 48).

45 In January 2002 the proponent had Oceania Clarke Pty Ltd working on a “Planning Report & Statement of Environmental Effects” for “alterations and additions” to the premises and their “change of use to Strata Titled Residential Flats”, retaining the existing “nightclub/restaurant” (Exhibit C3, Supplementary Bundle, Tab 1).

46 On 17 February 2002 DA U02-00162 was lodged with Council, proposing the addition of two additional residential levels and a rooftop landscaped garden and recreational facilities. The current use was described as “hotel, nightclub”, and the proposed new use as “2 shops, 1 nightclub, 33 apartments”. The “change of use” box on the DA form was not crossed. (Exhibit C3, Tab 50). The Council officers’ report noted that “the existing nightclub on the ground floor is proposed to be retained and two new shops added”. On p6 of the report the following paragraph appears:

“A 244m2 nightclub existing on the ground floor of the building. This raises particular concern for the amenity of future residents. The night club is located on the south-eastern corner of the building at the ground floor level. The proposed layout of the units will result in five units being located directly above the night club at the first floor level. A noise report was requested from the applicant, however it has not been provided. Conditions are added to the deferred commencement consent requiring a noise report to submitted (sic) prior to the application becoming operational and that the recommendations of the report be fully implemented in the application for a construction certificate.”

47 691 surrounding owners and occupiers were notified and no-one raised any question about the ongoing operation of the nightclub. The recommendation on DA U02-00162 was approval subject to conditions (Exhibit C3, Tab 51).

48 The 2002 Consent was notified on 4 June 2002. On the face of the Notice of Determination there was some error or omission in the description of the proposed development which read “Convert backpackers hostel to residential flat and building and add two shops and three” (sic). The consent was granted on a deferred commencement basis subject to conditions which included some considerable emphasis on noise issues. See especially condition 7 which deals with “Noise from patrons and amplified music emitted from the licensed premises (nightclub)”. The Notice of Determination and approved plans do not mention the word nightclub, but the ground floor area is shown on the plans as “existing restaurant/club”. The ground floor plan also shows the existence of various toilet facilities, but no kitchen (Exhibit C3, Tab 52).

Events post the 2002 consent

49 On 1 July 2004, Council granted consent to DA/2004/308 which sees an increase in accommodation numbers within the existing backpackers hostel. The nightclub is not mentioned but the Notice of Determination includes the requirement in Schedule 1A par 2 that “the premises must be limited to accommodating 180 persons”. That provision clearly must refer to the public entertainment space, rather than the private accommodation space, but, interestingly, the determination requires an internal communal kitchen to be located within the backpackers premises, accessible to all occupants. The “restaurant/club” is mentioned in passing in the fire safety requirements in par 6 of the determination, and indicates that an application must be submitted to the Council to amend the POPE approval for the ground floor “restaurant/club” in accordance with those requirements (Exhibit C3, Tab 53).

50 On 15 Oct 2004, a representative of the proponent submitted a s.96 modification application in respect of the 2002 consent. It refers to “Lido Backpackers, 2 Roslyn Street Pty Limited”. It is difficult to determine precisely what the modification actually sought, but it would appear to concern the configuration of the apartments as between studios and 1-bedroom units and the deletion of one shop, to enlarge the foyer of the residential area of the building (Exhibit C3, supplementary bundle Tabs 3 and 4). On 4 Jan 2005 Council refused the modification application (Exhibit C3, supplementary bundle Tab 5). An internal Council memo concerning the modification application refers to the 2002 consent and mentions that “Consent exists for the provision of 2 shops and a nightclub on the ground floor”. (Exhibit C3, Tab 54).

51 In early 2006, Council raised with the licensee of Ladylux for the first time some “deficiencies” including the possible need (subject to Council’s legal advice) to have the operator make a “DA for use as a nightclub”. (see par [21] above). Council officers were apparently prepared to “fast track” a DA to regularise the position. The relevant papers noted the refusal of DAU01-00545, and included an observation that there may have been unauthorised building works to remove the restaurant facilities from the premises (possibly a reference to the kitchen), resulting in the use changing completely to nightclub. The officers were handicapped in their consideration by the absence of documentation, but noted that Council officers had been aware of the operation of the premises as a nightclub since at least 2001. (Exhibit C3, Tabs 56-58). The Council wrote to the Respondent company and to the company registered as the owner of the building, on 17 March 2006, referring to the audit carried out by the Council having revealed that Ladylux is operating as a nightclub “without development approval”. The operator and owner were asked to submit an appropriate DA within 21 days or the POPE licence “will be revoked” (Exhibit C3, Tab 59).

52 On 10 April 2006, Council received the 2006 DA (par [18] above) described as a DA for only “change of use (no work)”. The detailed description states “reapplication for DA to use premises as nightclub – from restaurant”. Existing and proposed hours of operation were 24 hours 7 days, and it was claimed that no Statement of Environmental Effects or Environmental Impact Statement was required because there was “no work involved”. A Noise Impact Statement by RSA Acoustics was attached to the application – it noted that “extensive remedial action has been carried out” due to the lodgement of noise complaints, and recommended further remedial measures regarding noise and vibration. Among the extensive materials apparently lodged with the DA there was a plan of management, a security management plan, and a CCTV surveillance system proposal (see Exhibit C3, Tab 60). These latter documents appear to have been received by the Council only on 29 June 2006. The plan of management at (p57) notes that Ladylux won “Nightclub of the Year” in 2005. On none of the plans included in the exhibit is a kitchen depicted – one plan (at Exhibit C3, Tab 80 p310) shows “food preparation and refrigeration areas”.

53 The 2006 DA was recommended for approval on conditions which included the separation of the POPE from other parts of the building, including a fire separation from both the adjoining ground floor tenancies and the first floor level (Exhibit C3, Tab 63, p165). Council had before it many complaints and objections regarding the DA (Exhibit C3, Tab 64-77 & 81-82), mainly concerning noise complaints from residential premises, and consistent with Ms Nevin’s evidence. (Exhibit C3, Tabs 64-73). Mr Alberts drew attention to a decision of this Court on 21 September 2004 that the Empire Hotel would not be allowed to use its Roslyn Street entrances after 10pm, and noted that Ladylux is situated much closer to the residential properties likely to be adversely affected (Exhibit C3, Tab 73). The NSW police also expressed concern about the 24 hours 7 days operation (Exhibit C3, Tab 75). The police want the hours limited to 8pm-6am and suggest various stringent conditions.

54 During Council’s consideration of the 2006 DA the Applicant revised its proposal to reduce the hours from 24 daily to those that had been approved by the LAB, namely 12 noon-6am. Council officers referred in some documents to the change of use proposal as from restaurant to “a POPE as a nightclub”, but, in their report of 27 June 2006, they described the application as a “retrospective application to change approved restaurant use on the ground floor to a nightclub” with those amended hours 7 days. The officers noted that the majority of the noise complaints occurred in the period July 2005 to April 2006 “during a period of change of licensee”, and considered that the noise abatement measures would meet the complaints. They recommended that the application be approved on strict conditions (Exhibit C3, Tab 80), noting (at par 21 on p286) that:

“ The proposed development reinforces the historical and unique character of the Kings Cross Urban Village which has a strong emphasis on entertainment activities, in the context of a high density residential area. The subject site marks the south eastern corner of a street block that is predominantly occupied by entertainment and licensed premises ”.

(See schedule of licensed premises near Ladylux at Exhibit C3 , Tab 80, p352).

55 On 7 Aug 2006 Council resolved unanimously to refuse the 2006 DA on 6 grounds (Exhibit C3, Tabs 83 and 84), and the appeal to which I have already referred (Matter 10857 of 2006 – par [22] above) was lodged. As also noted above ([24]), that appeal was dismissed by Hussey C.

56 On 1 June 2007 Council indicated that all matters required to be completed under the deferred commencement conditions of the 2002 consent had been satisfied, and the 2002 consent became operative (Exhibit C3, Tab 87).

57 These Class 4 proceedings were commenced on 13 July 2007, and on 1 January 2008 the City of Sydney Development Control Plan 2007 – Late Night Trading Premises commenced operation (“the 2007 DCP” – Exhibit C1).

58 Most of what appears in pars [13]-[57] has been drawn from the documentary evidence (mainly in Exhibit C3), the evidence given by Ms Nevin, and comments from counsel. I now must detail the other evidence presented at the hearing before turning to the legal issues raised for determination.

The Other Evidence

The Planners

59 Apart from Ms Nevin and all the documentary evidence, the Council relied on the affidavit and oral evidence of Andrew Rees, one of its area planning managers, who became responsible for this area in about March 2006. He had been to the environs of Ladylux between 12 midnight and 6am about four times in that time, including two visits to the subject premises, during one of which visits he witnessed some antisocial behaviour (see Rees affidavit pars 40-43). He noted that there are several nightclubs and other late-closing licensed premises nearby, which play amplified music, and he marked up a map indicating those within the general vicinity of Ladylux (Exhibit R1). When the Council grants consent for a nightclub, conditions usually deal with noise, queuing, access and egress. With appropriate controls, nightclubs operate satisfactorily within this area, but one needs to manage the queues, using a dedicated person such as a security guard. There are usually other specific conditions regarding service of alcohol, attention to complaints, waste, recycling, etc.

60 Mr Rees was hesitant to agree with Ms Duggan, counsel for the Respondent, regarding Council being in a position to fix any neighbour etc. concerns about Ladylux by the application of appropriate conditions (Day 1, T30 L53-T32 L2 and T36 L47-T37 L41). “It’s a little bit like herding cats” (T33 L22-23). People asked to move on get aggressive, and incidents are not unusual (T34 L33-43). His major concern with this establishment is the noise within the residential building above it (T35 L7-10, and T37 L53-T38 L29), but he could give evidence of only one verbal complaint, and nothing adverse since the Hussey decision (T35 L12-T3 L45).

61 Daniel Brindle, a consulting planner engaged by the Respondent, provided an affidavit, but did not give oral evidence, in response to Mr Rees’ affidavit. He adhered to the views he put before Hussey C. He seriously disagreed then and now with Mr Rees. The premises have been used for the purposes of a nightclub, with the provision of public entertainment in the late night and early morning, for a number of years, and continue to be so used. In his opinion (affidavit par 10 – adopted by Ms Duggan as a submission on the Respondent’s behalf), the 1987 consent granted by Assessor Stewart allows the premises to be used for the provision of public entertainment until 6am, and “the approval for a restaurant to operate in this matter (sic) for these hours was fairly capable of being characterised as what has been and is commonly understood as a nightclub”.

62 Mr Brindle went on to observe (affidavit pars 15-16):

“ Late night trading premises are part of the character and history of Kings Cross and are evident in the area immediately surrounding the subject premises, including, for example, the Empire Hotel. The surrounding area of the subject premises is a key entertainment area with national and international recognition as a destination for tourists and residents of the area and wider Sydney. The site is within an entertainment precinct and development for the purposes of a small nightclub is completely consistent with the late night entertainment oriented activities that form an important part of the character of the Kings Cross Urban Village ”.
He suggests control of neighbourhood amenity by way of a plan of management and a security management plan to ensure that the amenity of nearby residential areas will not be significantly affected. Such security etc. plans for these premises are in evidence as Exhibit R2 , and Mr Brindle opined that they accord with the 2007 DCP, dealing with late night trading. (The original version dated May 2007 did not accord with what the DCP now provides, but the revised version, tendered on the question of discretion, generally does so).

The Noise & Amenity Experts

63 Issues of acoustic amenity and antisocial behaviour in the vicinity of Ladylux were argued in the appeal proceedings heard by Hussey C, and Mr G Atkins gave evidence, as (what was then described as) the Court Appointed Expert on acoustic issues. Mr Rees noted in his joint expert report with Mr Brindle in those proceedings that the Court Appointed Expert considered the noise transmission from the nightclub, both internally and externally, to be unacceptable. Attached to Mr Rees’ affidavit in these proceedings is a photograph showing extensive and poorly controlled crowding on the footpaths outside the subject site late at night. Mr Atkins opined that Ladylux patrons external to the building were clearly audible in the apartments directly above the nightclub. Mr Steven Cooper (the Respondent’s noise expert) agreed with that finding.

64 Mr Cooper was engaged as the Respondent’s noise expert also in these proceedings (see Exhibit C2), and he provided an affidavit and gave oral evidence. He knows the subject premises. After the hearing before Hussey C, Mr Cooper received the RSA Report, the Atkins Report, notes from Mr Atkins re measurements, the statement of issues from that case, and the DA papers 2001-2002. He was also granted access to an apartment above the nightclub (T52 L35-46). His report for these proceedings contains no actual testing results – he explained that he was asked (Exhibit C2 again) for a brief response to Ms Nevin’s affidavit and did not consider his testing figures were required. His evidence is the interpretation of those figures, and he was not engaged to prepare a planning assessment report.

65 RSA Acoustics had assessed the premises in April 2006 on behalf of the Applicant, nominated various noise control measures, and determined compliance with the relevant acoustic criteria applied by both the LAB and the City Council. In a 2007 inspection, Mr Cooper found inadequate vibration isolation of the sound system, and inadequate limiting of the overall noise levels. He gave certain instructions and made recommendations – vibration isolation pads underneath the sub-woofer speakers, installation of vibration isolation spring mounts to hang the full-range speakers off the ceiling, and an “RMS noise limiter” on the sound system to control overall levels. He also recommended adjustment of music levels towards the front entrance of the building, and reorientation of the speakers. He carried out further site inspections and testing in December 2007 and January 2008 and found no noise audible from the rear of the premises when standing in Barncleuth Lane, but high frequency noise, when the entry doors were opened, was detected on the northeast corner of the intersection of the lane and Roslyn Street. However, it “did not give rise to any measurable increase above the background level”. He also visited the scene on Tuesday 6 February, but the premises were closed.

66 Mr Cooper took issue with the currency of much of Ms Nevin’s evidence. He conceded he did no testing outside No.7 Roslyn Street. An inspection in the early hours of Sunday 3 February 2008 found the residential flat building on the eastern side of Barncleuth Lane and fronting Roslyn Street impacted by noise from nearby “Favela”, 1 Kellett Way, “where the music component was one of low frequency (bass) components of music. No noise could be detected from Ladylux”. Observations of Roslyn Street between 1.30 and 2.30am found patrons waiting to enter Ladylux lined up on the northern side of Roslyn Street, but not giving rise to “any undue disturbance”. He noted groups of patrons outside “Favela” in Roslyn Street opposite Ladylux, east of Barncleuth Lane, and a number of persons congregating in the square on the south-eastern corner of the intersection of Roslyn Street, Barncleuth Lane and Kellett Way. Noise from persons congregated in that area would be audible in residential properties, but not attributable to Ladylux. At 1.30am there were 42 persons in the courtyard area and, at 2.30am, thirty. In his oral evidence he testified that “undue disturbance” is the relevant term used by the LAB (T46 L36-54). He adhered to his evidence that there was high noise when the front door of Ladylux was open, and he believes that his earlier recommendations have been carried out (T53 L23-T55 L52).

The 2007 DCP

67 The main aim of 2007 DCP concerning Late Night Trading Premises (Exhibit C1), which commenced 1 January 2008, is stated to be:

“ to assist in the management of the impacts of late night trading premises on the sites and neighbourhoods in which they are located, and in particular, protect the amenity of residential properties. A planning policy document can look to achieve this through controls setting limits on late night trading hours and by promoting ongoing good management of late night trading premises by requiring that approvals are subject to ongoing trial periods”.

68 It is to be noted that “this DCP is not retrospective nor does it derogate from existing consents”. Its controls are detailed and complex.

69 The DCP acknowledges that the “night-time economy” is an integral part of the city’s commercial, cultural and social fabric:

“The controls in this DCP will provide greater certainty to the community and proponents of night trading premises in respect to appropriate operating hours and where such premises can locate. The provisions of this DCP do not set out to curb or increase potential trading hours in a blanket fashion throughout the City, but allow opportunities for late night trading hours in appropriate locations and with appropriate management actions”.

70 The DCP goes on to stress that proponents of “high impact” night trading premises demonstrate responsible management over time. The DCP identifies a “constrained range of operating hours for night trading in areas within a predominately residential context”. It then spells out its objectives. It applies to “development applications for new and existing Category A and Category B premises” (as defined), that (i) seek approval to trade between 10pm and 7am; or (ii) currently trade between 10pm and 7am and seek refurbishment, additions or extensions that will result in any intensification of the existing use; or (iii) seek extension or renewal of trial trading hours; or (iv) seek approval for outdoor trading beyond 8pm.

71 Category A or “high impact” premises include hotels, nightclubs, registered clubs, premises with a capacity of more than 120, where the owner provides or permits the consumption of alcohol, or premises that are used as a karaoke venue where the owner provides or permits the consumption of alcohol. Conversely, Category B or “low impact” premises are premises with a capacity of 120 or less, allowing consumption of alcohol, or any other commercial premises that, in the opinion of Council, may impact on the amenity and safety of a neighbourhood as a result of night operation (such as restaurants, BYO premises, cafes, theatres, karaoke venues, convenience stores, takeaway food shops and the like). Neither of the two categories include sex industry premises, but outdoor seating is included in the calculation of patron capacity.

72 The DCP identifies a hierarchy of three late night trading areas throughout the city. There are “late night management” areas, “city living” areas, and “local centre” areas, but all proposals for Category A premises located outside the late night trading areas so classified will be subject to the requirements of the DCP, which envisages the imposition of trial periods to assess management performance and neighbourhood amenity impact. The DCP identifies base and extended trading hours within three late night trading areas and for Category A premises located outside of these areas. It envisages requiring applicants to prepare plans of management and it describes what they will contain. To achieve a renewal or extension of trading hours, late night trading premises must demonstrate good management performance and compliance with a plan of management following the completion of a satisfactory trial period. Increases of 2 hours per trial period may be permitted if previous trial period is satisfactory. The first trial period is envisaged to be 1 year, the second 2 years, and third and subsequent 5 years. Once the full range of extended trading hours is reached, a DA must be lodged every 5 years to renew the trading hours. If a trial proves unsatisfactory, trading hours will revert to the base late night trading hours, or whatever hours have been approved as the maximum trading hours prior to the commencement of the DCP.

73 Ladylux would appear to be “high impact” or Category A premises located in a “local centre” area (see plan p11). The area fronting Darlinghurst Road and Bayswater Road in that precinct is classified “late night management”. In the case of a “local centre” area, Category A premises have base hours of 10am-10pm and extended hours of 10am-midnight for indoor trading, 10am-8pm and 10am-10pm for outdoor trading. In an adjacent “late night management” area, indoor trading hours have a base of 6am-midnight and extended hours are 24 hours. Outdoor in the Late Night Management Area the hours are 10am-10pm and extended hours 10am-1am (Table 1, p.9).

74 In Appendix 1 to the DCP there is an attempt to establish “Key Defining Elements” as to the character of various areas. Local Centre Areas are primarily located within shopping streets and retail spines in the City of Sydney and consist of active places that are the commercial and cultural focus for the local community. They are “active and vibrant places at night, although the intensity of activity is distinctly lower than in Late Night Management and City Living Areas. Premises such as restaurants and licensed hotels will generally have shorter trading hours than their counterparts in other areas. This is due to the proximity of Local Centre Areas to residential and other sensitive land uses and thus greater potential to impact upon the liveability of local residents” (p19).

75 It is envisaged that these areas cater mainly for local traffic and “have a minor role as destinations for people outside the City on weekends and therefore serve an important role in the hierarchy of night-time entertainment”. “During peak periods such as weekends it is appropriate for a number of premises to trade to midnight since Local Centre areas should be safe places for people to go out at night; and can provide an alternative and respite from the sustained levels of activity that are characteristic of Late Night Management Areas” (p19). At night the retail uses in Local Centre areas have a secondary role and cultural and recreational activities become the main focus.

Plan of Management etc

76 The Respondent’s Plan of Management and Security Management Plan (May 2007 version updated 7 February 2008) are before the Court as part of the Respondent’s case on discretion (Exhibit R2).

77 The revised version refers to nightclub licence 24006580 which permits the sale of liquor for consumption ancillary to entertainment between 8pm and 6am and ancillary to meals consumed on the premises between 12 noon and 8pm. Although licensed to trade between the hours of 12 noon and 6am, the nightclub currently trades Thursday, Friday, Saturday, Sunday and the eve of Public Holidays 10am to 5am.

78 The Plan of Management provides for complaint management, including the logging into a complaints register. Paragraph 4.17 provides, apparently in error by adaptation from a model draft : “A Complaint Register is to be kept to record all incidents of complaints made at the Hotel”, and then goes on to provide for the Register “to be kept in the nightclub office”. Section 8 deals with “Amenity of the Neighbourhood” and Section 9 deals with noise. Section 10 deals with responsible service of alcohol which includes (p.16 par 10.2) this provision regarding food: “The premises shall maintain a menu of selected pizza and gourmet pies, and shall endeavour to create a relationship with local restaurants so as to expand the menu range available to patrons”. Paragraph 10.3 says “The nightclub House Policy is annexed hereto”, but nothing is so annexed. Section 11 deals with waste management.

79 There appears to me to have been a tightening up of the role of the “door host” in par 6.4 which now reads as follows “The role of the door host shall include responsibilities to assist security in maintaining an orderly queue and expedient processing of those persons seeking admission into the nightclub. The door host and security guard at the front entrance are to ensure that the entry door to the premises is closed immediately following the entry or exit of patrons”. (The second sentence was added in the later version).

80 The Security Management Plan “outlines the minimum requirement for security measurements at the premises”. Security personnel are to ensure the safety of patrons in and outside the premises and to maintain the quiet and good order of the area surrounding them. It extends to the orderly dispersal of patrons. Two guards are to patrol the entrance from 10pm until one-half hour after closing, and one of them is to be responsible for controlling the number of patrons in the queue. There is to be an hourly patrol of the near neighbourhood to collect and dispose of any patron litter. A third security guard will patrol inside the premises for the same hours.

81 Queues are limited to 15 persons, with extras told to leave the vicinity quietly and promptly, and the queue is to form from the doorway, in the direction of Darlinghurst Road. Physical queuing ropes are to be placed in a manner that means the queue is single file and the pavement is clear for passing pedestrians. Only six persons may enter the nightclub premises at one time. The front entrance security guards are to ensure the immediate closure of the entry door after patron entry or exit. Entry records are to be logged hourly.

Consideration

82 This Court is frequently called upon to construe statutory provisions, planning instruments, development consents, and conditions imposed upon consents, and/or to characterise the “use” of premises. Often the issue at hand is “existing use” rights.

83 Consents and conditions have to be construed “fairly”, but “liberally” with attention to relevant town planning considerations underpinning the instrument involved and with care not to descend into too much generality where specific activities are involved.

84 A change in label or signage does not convert a use, and the Court will examine the actual activity involved when it embarks upon a characterisation task. For example, it has been held that a milkbar selling takeaway food is a different use from that of “café” – one is more a “shop” and the other more a “refreshment room”. Premises can have two (or more) uses – they can be independent, and, neither need be necessarily ancillary to the other. See Foodbarn Pty Limited and Others v Solicitor-General (1975) 32 LGRA 157; Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404.

85 The characterisation task has been described and various principles laid down by a number of important Court of Appeal decisions over the years and carried out by this Court in accordance with those principles. Counsel for both parties in this matter agree on the correct principles, and they need not be argued in detail here. Often the best analysis is on the basis of a species/genus relationship. See Shire of Perth v O’Keefe and Another (1964) 110 CLR 529 at 534-5; Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 at 310-11; North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd and Others (1989) 16 NSWLR 50 at 59-65; House of Peace Pty Ltd and Another v Bankstown City Council (“House of Peace”) (2000) 48 NSWLR 498 at 507-8; and Grace & Anor v Thomas Street Café Pty Ltd & Ors (“Thomas Street”) [2007] NSWCA 359 at [57]-[70] and [78]-[79]. This line of NSW Court of Appeal authority was not questioned at all by the High Court in its recent unanimous judgment in Weston Aluminium Pty Ltd v Environment Protection Authority and Alcoa Australia Rolled Products Pty Ltd [2007] HCA 50 at [16]-[17].

86 The issue which causes the most contention when this Court turns to characterise a use is the extent to which in the particular case the Court can and should have resort to any extraneous documents or extrinsic evidence to assist in the construction of a consent or other relevant document. Another document can be relied upon only where, and to the extent to which, it has been incorporated into the consent, either expressly or by necessary implication – “passing reference” is not enough. See Auburn Municipal Council v Szabo and Another (1971) 67 LGERA 427 at 433-4; Parramatta City Council v Shell Co of Australia Ltd (1972) 2 NSWLR 632 at 637; Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council (No.2) (1993) 78 LGERA 404 at 407; Winnv Director-General of National Parks and Wildlife and Others (2001) 130 LGERA 508 at 513. Sometimes it might be useful to have regard to the development application, but a development application will be incorporated only when it is expressly called up by the consent (see Woolworths Ltd v Campbells Cash and Carry Pty Ltd (1996) 92 LGERA 244; Loreto Normanhurst Association Inc v Hornsby Shire Council (2002) 122 LGERA 347.

87 Over time a use might evolve into something “different”, but the courts might hold that there has been no “change of use”. Essentially, such is the issue in this matter – the Council says that “nightclub” is not a “restaurant” use, so it is not permitted by a restaurant consent. On the other hand, Counsel for the Respondent argues that just as “restaurant” may be characterised as a species of the genus “refreshment room”, so should “nightclub” be characterised as a late-night food, liquor and entertainment species of the genus “restaurant”.

88 As noted throughout this judgment the Court has no precise definitions from planning law upon which to rely to characterise and distinguish the uses of restaurant and nightclub, and the relevant planning instruments are unhelpful in this instance.

89 The Courts frequently use dictionaries as an aid to construction of documents. See Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltdand Others (1991) 25 NSWLR 541 per Mahoney JA at 560-61, and House of Peace per Mason P at pp 504-506. If resort is had to English language dictionaries for the meaning of relevant words from time to time, it has become usual to rely on The Macquarie Dictionary (lately called “Macquarie – Australia’s National Dictionary”). As at 1988 the Macquarie defined a nightclub as “a place of entertainment, open until late, offering food, drink, cabaret, dancing, etc”, and a restaurant as “an establishment where meals are served to customers”. In the Revised Third Edition (2001), a nightclub is defined as “a place of entertainment, opening during the evening, offering food, drink, cabaret, dancing, etc.” or “a dance venue which opens from evening till early morning”. A restaurant is defined as “an establishment where meals, especially main meals, are served to customers”.

90 At pars [37]-[38] above I dealt with the changes made to the Liquor Act on 1 March 1997. A subsequent amending Liquor Act was passed in 2007, but has not yet commenced. It defines a “restaurant” as “premises (however described) in respect of which the primary purpose is the business of preparing and serving meals to the public”. It does not define “nightclub”. In par [11] I set out a definition of “restaurant” from the Roads Act 1993, which reflects the current Macquarie definition, but I have also located a regulation in which more informative distinctions are drawn between the two types of premises: In Schedule 6 Part 1 of the Casino Control Regulation 2001 there are “applied provisions of the Liquor Act 1982 as modified”, and cl.4 contains the following definitions:

“‘nightclub’ means premises in which liquor is sold with or as ancillary to entertainment.
…
‘restaurant’ means premises that are licensed to sell liquor, with or as ancillary to a meal, for consumption at a table on the premises (including such premises the licence relating to which is subsequently endorsed with a dine-or-drink authority), but does not include premises that are licensed to be used as a nightclub”

91 It is seen, therefore, that various statutory instruments now distinguish between “refreshment rooms” which focus on serving drinks with meals (“restaurant”), and those which focus on serving drinks with entertainment and may optionally provide lighter-style meals (“nightclub”).

92 This is obviously not the first case where the use of premises has evolved over time with the movement in community needs and tastes. For example, I dealt with such a “refreshment room” case (involving issues of seating) in The Turnbull Group v North Sydney Council (1998) 101 LGERA 354, as did Lloyd J in Thomas Street at first instance [2006] NSWLEC 547. When overturning Lloyd J’s decision, the Court of Appeal usefully reviewed the case law again, and discussed the issues and challenges posed by the construction issues faced in such circumstances, on the basis, obviously, that each case and its decision turn on its own facts and circumstances – see Thomas Street in the Court of Appeal, per Beazley JA especially at pars [87]ff, and McLellan CJ at CL at [141]ff.

93 Likewise, this case is not unique in that regulation of the premises has been shared over time between the liquor licensing authorities and the Council as the local planning authority. Some of the principles involved in working through the difficulties caused by that circumstance are usefully discussed by Bignold J in Crawley v Sydney City Council [1995] NSWLEC 163.

94 The history I have outlined leads me to make the following findings:

· The accommodation provided by the upper floors of 2 Roslyn Street has, since about 1964, been augmented by a Council-approved “refreshment room” facility of some sort in the ground floor area now occupied by Ladylux (with a possible hiatus in 1971-72).

· Those ground floor premises have presented as a restaurant or coffee shop since at least 1976, and a formal approval of such use was given by the Council in 1979 (the 1979 approval).

· The premises have also had a liquor licence of some sort since at least 1982, and the Council allowed (i) trading hours to be extended at that time, and (ii) from 23 February 1987, the provision of entertainment on the premises (the 1986 consent).

· The Licensing Court extended their liquor trading hours during 1987 to 11am-6am 7 days, and this Court affirmed from 18 December 1987 consent for entertainment and light meals to be provided at the premises between the hours of 12 noon to 6am 7 days per week (the 1987 consent).

· Between late 1987 and early 1997 various public authorities (the Council and the LAB) regulated and/or approved the operation of the premises over those hours as a place of public entertainment (POPE).

· In 1997 the licensing laws were changed to distinguish between the liquor licences the LAB would grant to POPEs as either restaurant or nightclub operations, insofar as such establishments might sell liquor, provide entertainment, and serve food at various times of the day or night.

· The language of the amending licensing Act envisages more emphasis within approved premises (i) on “meals” during the day and (ii) on “lighter fare” accompanying entertainment in the evening hours.

· The subject premises, on 24 December 1997, received approval from the liquor licensing authorities to convert from a restaurant licence and mode of operation to those of a nightclub. They have presented and represented themselves as such, including in all their dealings with Council since that time – for example, when obtaining the 2002 consent, which has now become operative.

· Council has consistently acknowledged in its documentation, and in its dealings with these premises (until early 2006), that it is a nightclub, and Council’s planning instruments do not make any special consent-related provisions, such as a definition, regarding that particular use.

95 The consents in place in respect of the subject premises prior to 1987 clearly approved their use as a “restaurant” as that term was then normally understood, and, with LAB approval since at least 1982, as a “licensed restaurant” as then normally understood. The 1986 consent (granted on 23 February 1987) specifically added “public entertainment” to the licensed restaurant’s permitted activities. Later in 1987 both the Licensing Court and this Court sanctioned the operation of the premises as a place where the public could obtain food, drink and entertainment until 6am.

96 In 1997 the Parliament decided to relax the requirement for a “meal” to be served with any liquor purchase after 8pm, in what had been until then a “late-trading” period for restaurants (requiring specific approval of a licence endorsement), provided such licensed restaurants/POPEs obtained a “nightclub licence”. The subject premises obtained such a licence.

97 It is clear from this analysis that I have concluded that the use of these premises has evolved over time from one species of the genus “restaurant” to another, and that they have had, since the 1987 decision of this Court, a consent to operate as they now do. In this respect I accept the expert opinion of Mr Brindle, which Ms Duggan adopted as the Respondent’s submission (par [61] above), rather than that of Mr Rees, and I am not troubled by the failure of Assessor Stewart to use the word “nightclub” – he made his decision some nine years before the use of that term commenced in relevant statutory provisions.

98 In case I am wrong in this conclusion, the Court needs to examine whether the 2002 consent adequately satisfies the need for this nightclub to have an appropriate consent, and I have decided that it does so.

99 One of the conditions of that 2002 consent (No.2) specifically imported into the consent a series of “amended plans” which clearly show the “existing restaurant/club”. Another condition (No.7) specifically deals with the noise “emitted from the licensed premises (nightclub)”, and any impact that such noise would have on “any habitable room in any residential premises”.

100 These conditions are quite clear and specific. They meet the test of “saying what they mean and meaning what they say”. Any ambiguity in a condition is to be construed not necessarily in favour of the holder of the consent but against the Council – see Mosman Municipal Council v Denning & 2 (Ors) [2002] NSWLEC 227 per Lloyd J at [8] and [16], relying on Ryde Municipal Council v The Royal Ryde Homes & Another (1970) 19 LGRA 321 at 324. See also House of Peace at [41]. I can find no ambiguity in the conditions of the 2002 consent. I rely on condition 2 as evidence of the grant of consent to the operation of a nightclub. I do not rely on condition 7 as granting such consent, but I do rely on it as confirming the intent of Council that such a consent be granted (or confirmed), with appropriate noise controls in place.

101 The Respondent argues that “by necessary implication” the 2002 consent must be taken to also incorporate the development application form upon the basis of which the consent was granted. That form makes clear that the application specifically proposes the use of the premises as a nightclub, and Council can legally impose only conditions which relate to the development which is the subject of the consent. I have concluded that I do not need to go that far, as the consent is clear on its face. Nor do I need to decide that s.81A(1) (par [8] above) applies to the 2002 consent (see discussion of s.81A by Beazley JA in Thomas Street at [110]-[127]). It would appear, at least prima facie, that the provision does so apply, as the ground floor was to be reconfigured in some way under the 2002 consent, but I do not invoke it in this case.

102 On their face the 2002 consent and its incorporated plans should be construed as approving the nightclub use.

Conclusion

103 As I am satisfied that the Respondent’s premises have a valid consent I decline to make the declarations sought by the Council, and the Council’s Class 4 application must be dismissed.

104 As I, therefore, do not have to consider the granting of injunctive relief, questions of discretion do not arise for decision. Detailed evidence and submissions are, however, before the Court regarding the problems seen (notably by Ms Nevin) to have been caused by the operation of the subject premises as a nightclub (especially noise and the consequences of queuing), and there is, on the other hand, also evidence of the good intentions and efforts, past and planned, on the part of the current operators to deal with these problems satisfactorily, as well as favourable expert evidence from Mr Cooper. Given the outcome of this litigation any remaining amenity issues will require attention elsewhere. It is to be recalled in this regard that Ms Nevin wanted the nightclub to be better controlled, not closed altogether (see [16]-[20] above), and that there is now a new DCP in force providing guidelines for such premises (even though it is not retrospective).

Orders

105 As the Respondent has been totally successful, the appropriate order as to costs would normally be that Council pay the Respondent’s costs as assessed or agreed. However, the question of costs has not been fully argued, and both counsel (Day 2, T53 L3-10) asked that it be reserved.

106 Accordingly, the orders of the Court will be:

1. The Class 4 application is dismissed.

2. Costs are reserved.

3. The Exhibits may be returned.