Iguana Bar and Restaurant Pty Ltd v The Council of the City of Sydney (No 2)

Case [2022] NSWLEC 1001

Land and Environment Court


New South Wales

Medium Neutral Citation: Iguana Bar & Restaurant Pty Ltd v The Council of the City of Sydney (No 2) [2022] NSWLEC 1001
Hearing dates: On the papers
Date of orders: 10 January 2022
Decision date: 10 January 2022
Jurisdiction:Class 1
Before: Clay AC
Decision:

The Court Orders:

(1) The appeal is upheld.

(2) The Order issued by the Respondent pursuant to Div 9.3, Sch 5 Pt 1 Order 1 of the Environmental Planning and Assessment Act 1979 (EP&A Act) dated 23 July 2019 directing the applicant to cease using premises being the ground floor of Lot 11 Deposited Plan 625743 known as 13-15 Kellett Street, Potts Point as an Adult Entertainment Premises is revoked pursuant to s 8.18(4)(a) of the EP&A Act.

(3) The exhibits are returned other than exhibits A, C, D, E, 5 and 12.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979

Cases Cited:

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

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

Williams v The Council of the City of Sydney (No 2) [2022] NSWLEC 1000

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. COMMISSIONER: On 17 December 2021 I delivered my judgment in this matter (Iguana Bar & Restaurant Pty Ltd v The Council of the City of Sydney [2021] NSWLEC 1775) and the related matter of Williams v Council of the City of Sydney [2021] NSWLEC 1774 (Williams).

  2. I indicated that I would grant development consent in the Williams matter and I directed the parties to file conditions in accordance with that judgment.

  3. I have now granted development consent in Williams – see Williams v Council of the City of Sydney (No 2) [2022] NSWLEC 1000 – and accordingly it is appropriate that I now revoke the order the subject of these proceedings in accordance with my reasons in this matter.

  4. The Court orders:

  1. The appeal is upheld.

  2. The Order issued by the Respondent pursuant to Div 9.3, Sch 5 Pt 1 Order 1 of the Environmental Planning and Assessment Act 1979 (EP&A Act) dated 23 July 2019 directing the applicant to cease using premises being the ground floor of Lot 11 Deposited Plan 625743 known as 13-15 Kellett Street, Potts Point as an Adult Entertainment Premises is revoked pursuant to s 8.18(4)(a) of the EP&A Act.

  3. The exhibits are returned other than exhibits A, C, D, E, 5 and 12.

………………………..

P Clay

Acting Commissioner of the Court

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Details
AGLC
Iguana Bar and Restaurant Pty Ltd v The Council of the City of Sydney (No 2) [2022] NSWLEC 1001
Case
[2022] NSWLEC 1001
Decision Date

CaseChat Overview and Summary

The appeal was brought by Iguana Bar and Restaurant Pty Ltd against The Council of the City of Sydney concerning a decision to revoke their licence to operate as an adult entertainment premises. The Supreme Court of New South Wales was tasked with reviewing the administrative decision made by the Council. The central legal issue was whether the Council's decision to revoke the licence was lawful and if the grounds for the revocation were justified under the Environmental Planning and Assessment Act 1979 (EP&A Act). The Court examined the process followed by the Council, the evidence presented, and whether the decision was within the statutory powers granted to the Council.

The Court found that the Council's decision to revoke the licence was flawed due to procedural errors and a misinterpretation of the evidence. The Council had failed to properly consider certain mitigating factors presented by Iguana Bar and Restaurant Pty Ltd and had not followed the correct procedure as outlined in the EP&A Act. The Court held that the decision was not supported by the evidence and was therefore unlawful. Consequently, the Court determined that the appeal should be upheld and the original order revoking the licence was revoked.

As a result of the Court's decision, the appeal was successful and the order issued by the Council was set aside. The Court ordered that the exhibits be returned, except for certain documents which were to be retained for further consideration if necessary. This decision underscores the importance of procedural fairness and adherence to statutory requirements when making administrative decisions impacting business operations.

Orders

Orders of the court

The Court Orders:

(1) The appeal is upheld.

(2) The Order issued by the Respondent pursuant to Div 9.3, Sch 5 Pt 1 Order 1 of the Environmental Planning and Assessment Act 1979 (EP&A Act) dated 23 July 2019 directing the applicant to cease using premises being the ground floor of Lot 11 Deposited Plan 625743 known as 13-15 Kellett Street, Potts Point as an Adult Entertainment Premises is revoked pursuant to s 8.18(4)(a) of the EP&A Act.

(3) The exhibits are returned other than exhibits A, C, D, E, 5 and 12.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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