Iguana Bar and Restaurant Pty Ltd v The Council of the City of Sydney

[2021] NSWLEC 1775

Land and Environment Court

New South Wales

Medium Neutral Citation:

Iguana Bar & Restaurant Pty Ltd v The Council of the City of Sydney [2021] NSWLEC 1775

Hearing dates:

22 October 2021, 3 November 2021

Date of orders:

17 December 2021

Decision date:

17 December 2021

Jurisdiction:

Class 1

Before:

Clay AC

Decision:

See [14] below.

Catchwords:

DEVELOPMENT CONTROL ORDER – cease use of premises for unauthorised use – development application made for unauthorised use – development consent to be granted – order to be revoked

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.18, Div 9.3, Sch 5, Pt 1

Local Government Act 1993

Cases Cited:

Williams v The Council of the City of Sydney [2021] NSWLEC 1774

Category:

Principal judgment

Parties:

Iguana Bar & Restaurant Pty Ltd (Applicant)
Council of the City of Sydney (Respondent)

Representation:

Counsel:
J Fan (Solicitor) (Applicant)
A Singh (Solicitor) (Respondent)

Solicitors:
Lindsay Taylor Lawyers (Applicant)
Council of the City of Sydney (Respondent)

File Number(s):

2019/258043

Publication restriction:

Nil

Judgment

1. COMMISSSIONER: This is an appeal pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (EP&A Act) against an Order issued by the Respondent (Council) dated 23 July 2019 pursuant to Div 9.3, Sch 5 Pt 1 Order 1 of the EP& A Act (Order).

2. The Order directs the applicant to cease using premises being the ground floor of Lot 11 Deposited Plan 625743 known as 13-15 Kellett Street, Potts Point (site or premises) as an Adult Entertainment Premises being a use that the Council says requires planning approval, which has not been obtained.

3. The licensee of the premises, Timothy Williams, made a development application for the use of the premises for the provision of adult entertainment without admission that he was obliged so to do. Development Application D/2019/1135 (DA) is the subject of an appeal to this Court (proceedings number 2020/48750) (DA appeal).

4. The DA appeal was heard with this appeal and, insofar as it was relevant, evidence in one appeal was evidence in the other.

5. The Council submitted that in the event development consent was granted for the proposed use, then it was appropriate that the order be revoked.

6. I propose to grant a conditional development consent in the DA appeal (see Williams v The Council of the City of Sydney [2021] NSWLEC 1774) and so it is appropriate that the order be revoked. If the Council does not press the order, then it is only a hypothetical exercise to determine whether there was a proper basis for the order.

7. In deference to the parties, I will note their submissions on the question of whether the use of the premises to provide adult entertainment is authorised by the existing consents.

8. The Council’s Statement of Facts and Contentions sets out the planning history:

“15. DA11/02/1046 - On 21 April 1980 consent was granted for alterations to the building for the use as residential flats with a restaurant on the ground floor 13 Kellett Street and commercial premises at the ground level of 15-17 Kellett Street, including provision of one parking space, one loading dock, and remainder of the ground floor to be landscaped for use by the residential flats.

16. DA11/02/1046 - On 6 May 1980 consent was granted to use the front of the ground floor of 15 Kellett Street as a restaurant in conjunction with 13 Kellett Street. Hours of operation were restricted to 7.30am to 12.00 midnight Mondays to Saturdays and 7.30am to 10.00pm Sundays.

17. DA44/80/1105 - On 14 January 1981 consent was granted for the erection of a roof over part of the front yard of 13-15 Kellett Street for use as an outdoor eating area.

18. X88/01685 - On 23 September 1988 approval was granted for a Building Application for a new bar and alterations to the dining room.

19. Q90/01082 - In December 1990 an application was submitted to use the premises as a Place of Public Entertainment. The application was refused on 17 April 1991 as development consent had not been obtained for the hours sought (7.00pm to 2.00am Mondays to Thursdays and 7.00pm to 3.00am Fridays and Saturdays) and for noncompliance with Ordinance 70.

20. Q93/00116 - On 5 May 1993 consent was granted for an entertainment licence with hours of operating of 7.30am to 12.00 midnight Mondays to Saturdays and 7.30am to 10.00pm Sundays, parking for one vehicle and one loading dock space.

21. U94/00240 - On 22 June 1994 consent was granted to extend the hours of operation of the restaurant and replace an existing pergola. Relevant conditions include: (a) Conditions 1 and 2 restrict the hours of operation of 7.30am to 3.00am daily to a period of one year, reverting to 7.30am to 12.00 midnight Mondays to Saturdays and 7.30am to 10.00pm Sundays after this period. (b) Condition 3 restricted live entertainment to a vocalist and pianist from 7.30pm to 3am daily for a trial period of 12 months.

22. U95/00442 - On 9 August 1995 to continue the existing hours of operation of the restaurant and live entertainment from 7.30am to 3.00am daily, on a permanent basis. Relevant conditions include: (a) Condition 2 restricted live entertainment to a vocalist and pianist from 7.30pm to 3am daily.

23. U96/00370 - On 21 August 1996 consent was granted to extend the hours of operation of the existing restaurant with live entertainment. Relevant conditions include: (a) Condition 1 restricts the hours of operation between 3.00am and 7.30am daily to a 12 month trial period. (b) Condition 2 required the operator to prepare a Code of Practice in conjunction with Kings Cross Police prior to the additional hours (3.00am to 7.30am) being taken up. The Code of Practice was endorsed on 4 September 1996. 11

24. U97/00750 - On 3 December 1997 consent was granted for the continued use of the existing restaurant with live entertainment operating 24 hours daily on a permanent basis. Relevant conditions include: (a) Condition 1 requires that the use of the premises shall be in accordance with the terms of the previous consents relating to the provision of entertainment and shall continue to operate in accordance with the Code of Practice adopted under U96/00370.

25. U99/00087 - On 5 March 1999 consent was granted for alterations and extension to a storeroom, located on the ground floor of the restaurant.

26. U00/00787 - On 8 November 2000 consent was granted to increase the number of patrons from 106 to 270 in an existing bar and restaurant and to carry out minor alterations. Relevant conditions include: (a) Condition 3 restricted the number of people in the premises to 267 including staff for a 12 month trial period.

27. DU/2000/787/A - An application to modify the consent was submitted to delete the one year trial period, however the application was withdrawn.

28. U02/01209 - On 24 January 2003 consent was granted to increase the number of patrons in an existing bar and restaurant. Relevant conditions include: (a) Condition 1 restricts the number of people in the premises to 267, including staff.

29. DU/2000/787/B - On 24 September 2004 the consent was modified to allow the continuation of the premises as a Place of Public Entertainment. A number of conditions were amended including: (a) Condition 3 was modified to allow a maximum of 270 persons including staff. (b) Condition 18 was amended to allow public entertainment use for a two year period from the commencement of entertainment.”

9. The Council submitted that there was no consent which authorised entertainment other than piano and vocalist and so the provision of adult entertainment was prohibited.

10. The Applicant argued that the entertainment was not so constrained, particularly in light of approvals having been granted under the then provisions of the Local Government Act 1993 (LG Act), relating to the provision of public entertainment when the Council had knowledge that the premises were being used as a nightclub and later for adult entertainment.

11. Whilst it is not necessary to do so, and any opinion expressed is not binding on any other decision maker, nor an expression of the state of the law between the parties, I would have found that the provision of adult entertainment was not authorised and that an order in a form would have been made by the Court.

12. Simply put, I agree that the consent which permits entertainment restricts entertainment to the form of simply a singer and pianist, and cannot be construed more broadly. Amplified music is not permitted. Second, the provision of adult entertainment is not an activity ancillary to the use as a restaurant and bar. The entertainment is the focus of the use of the premises and a separate and independent use from any use as a restaurant and bar.

13. Third, the issue of authorities pursuant to the LG Act were limited in time and did not have the effect of modifying or somehow enhancing the operation of development consents under the EP&A Act.

14. Development consent in the DA Appeal cannot be granted until final conditions are proffered by the parties. When orders are made in the DA Appeal, I will make orders in these proceedings to uphold the appeal and revoke the order.

………………………..

P Clay

Acting Commissioner of the Court

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Decision last updated: 17 December 2021