Iris Hotels Sydney Airport Operations Pty Ltd v Independent Liquor & Gaming Authority

Case •

[2025] NSWCATAD 272

•

10 November 2025

No judgment structure available for this case.

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Iris Hotels Sydney Airport Operations Pty Ltd v Independent Liquor & Gaming Authority [2025] NSWCATAD 272
Hearing dates:

4 April & 16 June 2025

Last submissions received 22 October 2025
Date of orders: 10 November 2025
Decision date: 10 November 2025
Jurisdiction:Administrative and Equal Opportunity Division
Before: P Decle, Senior Member
Decision:

(1) Pursuant to s 65(1) Administrative Decisions Review Act 1997, the matter is remitted to the Respondent for reconsideration.

(2) By 22 December 2025 the Respondent is to tell the Tribunal and the other party whether the decision has been affirmed, varied or set aside and if there is a new decision.

(3) By 14 January 2026 the Applicant is to tell the Tribunal and the other party whether they are continuing or withdrawing the application for review.

(4) The proceeding is listed for directions on 20 January 2026 at 9:30 am at John Maddison Tower, Level 10, 86-90 Goulburn Street, Sydney (unless withdrawn prior).

(5) The parties are granted liberty to apply to relist the matter for further directions on giving 3 days notice.

Catchwords:

STATUTORY INTERPRETATION – development consent – deferred commencement condition – construction of Environmental Planning and Assessment Act 1979 (NSW) - construction of Liquor Act 2007 (NSW) – when is a development consent ‘in force’

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW) Administrative Decisions Review Regulation 2024 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW) Environmental Planning and Assessment Act 1979 (NSW)

Gaming and Liquor Administration Act 2007 (NSW) Liquor Act 2007 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Home Building Act 1989 (NSW)

Cases Cited:

Auld v Independent Liquor and Gaming Authority [2018] NSWCATAD 25

Australand Holdings v Hornsby Shire Council [1998] 98 LGERA 312

Bertran v Vanstone [2000] FCA 359

Cameron v Nambucca Shire Council (1997) 95 LGERA 268

Certain Lloyd's Underwriters v Cross [2012] HCA 56

Coalcliff Community Association Inc v Minister for Urban Affairs and Planning [1999] NSWCA 317

Commissioner of Police, NSW Police Force v Davies [2025] NSWCATAP 36

Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719

Fong v Secretary, Department of Customer Service (No 2) [2025] NSWCATOD 84

Henadeck Pty Ltd v Independent Liquor and Gaming Authority; Niraula v Independent Liquor and Gaming Authority [2020] NSWCATAP 200

Holroyd City Council v Abouantoun [2003] NSWLEC 379

Independent Liquor and Gaming Authority v Auld [2018] NSWCATAP 184

Independent Liquor and Gaming Authority v Auld [2019] NSWCA 88

Kiama Municipal Council v Gerroa Boat Fisherman's Club [2010] NSWLEC 72

Lygon Nominees Pty Ltd v Commissioner of State Revenue [2007] VSCA 140

Patrick v Secretary, Department of Communities and Justice [2025] NSWCATAP 206

Prodanovski Pty Ltd v Wollongong City Council [2013] NSWCA 202

R & R Gazzolari Pty Ltd v Parramatta City Council [2009] HCA 12

Roberts v Blue Mountains City Council [2012] NSWLEC 2

Stewart v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCAFC 196

Weal v Bathurst City Council [2000] NSWCA 88

Webb v Port Stephens Council [2020] NSWCATAP 152

Wojciechowska v Secretary, Department of Communities and Justice; Secretary, Department of Communities and Justice v Wojciechowska [2025] NSWCATAP 248

Texts Cited:

Blacks Law Dictionary, 12th ed (2024)

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 28 November 2007

Category:Principal judgment
Parties: Iris Hotels Sydney Airport Operations Pty Ltd (Applicant)
Independent Liquor & Gaming Authority (Respondent)
Representation:

Counsel:
C Ireland (Applicant)
D Birch (Respondent)

Solicitors:
Hatzis Cusack (Applicant)
Crown Solicitor (Respondent)
File Number(s): 2024/00457737
Publication restriction: Nil

REASONS FOR DECISION

Introduction

  1. The Independent Liquor & Gaming Authority (ILGA / the Respondent) has responsibility for determining applications for licences pursuant to the Liquor Act 2007 (NSW) (Liquor Act).

  2. Section 45(3)(c) Liquor Act provides that the ILGA "must not" grant a licence unless satisfied that, where a development consent is required under the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) in respect of the proposed licence activity,

"that development consent or approval is in force".

  1. On 2 May 2024, Iris Hotels Sydney Airport Operations Pty Ltd (the Applicant) applied for a new hotel licence. At the time, they had been granted development consent from Bayside Local Planning Panel (the Bayside Panel) however it was subject to a ‘deferred commencement’ condition. The deferred commencement condition would be met once the Bayside Panel was satisfied with an approval/certification obtained by the Applicant from Sydney Trains with respect to certain matters.

  2. On 20 November 2024, ILGA refused to grant the Applicant a licence on the ground that it did not have power to do so because the existence of the deferred commencement condition meant that the Applicant did not have a development consent that was "in force" as required by s45(3)(c) of the Liquor Act.

  3. This case concerns whether that decision was correct.

Jurisdiction & Role of the Tribunal

  1. A person aggrieved by a decision of the ILGA concerning a prescribed application may apply to the Tribunal for administrative review: s 13A(1) Gaming and Liquor Administration Act 2007 (NSW) (GLA Act). A prescribed application includes an application for a hotel licence: s 4(a)(i) Gaming and Liquor Administration Regulation 2024 (NSW) (GLA Regulation).

  2. ILGA’s decision to refuse to grant a hotel licence on the ground that it did not have power to do so is taken to be a decision under the GLA Act to refuse to grant a hotel licence: s 6(4) Administrative Decisions Review Act 1997 (NSW) (ADR Act). Consequently, section 7 and 9 ADR Act give the Tribunal jurisdiction to hear and determine this application.

  3. There is no requirement to seek an internal review of a decision of the ILGA concerning a prescribed application prior to the Applicant applying for administrative review: reg 4 Administrative Decisions Review Regulation 2024 (NSW).

  4. The application for administrative review was made 19 days after receiving notice of ILGA's decision. I am satisfied the application complies with the requirements of s 13A GLA Act and therefore that the Tribunal can determine the application.

  5. The Tribunal's role is to decide what is the correct and preferrable decision (s 63(1) ADR Act).

Procedural History

  1. The ILGA initially applied for summary dismissal of the application for administrative review. During the hearing of that application, with the agreement of the parties, the Tribunal determined that it was appropriate to hold a hearing instead. I am satisfied that this approach met the guiding principle in s36 Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) as the real issue in dispute between the parties was whether the construction of s45(3)(c) Liquor Act by ILGA is correct.

  2. There has been no substantive consideration by ILGA of the Applicant's application for a hotel licence. If the Tribunal determines that the ILGA has power to decide the application for a hotel licence because the Applicant has a development consent that is ‘in force’, then the parties proposed that the matter should be remitted pursuant to s 65(1) ADR Act for reconsideration by ILGA. While this decision was reserved, the Tribunal invited further submissions in respect of whether this application should be dealt with pursuant to s 63 or s 65 ADR Act.

Material relied upon

  1. The Applicant relied upon:

  1. Administrative Review Application filed on 9 December 2024.

  2. Affidavit of Warren Duarte sworn 4 March 2025.

  3. Submissions filed on 4 March 2025 in respect of summary dismissal.

  4. Further submissions filed on 19 May 2025.

  5. Final submissions filed on 2 October 2025.

  1. The Respondent relied upon:

  1. Bundle of documents lodged with the Tribunal pursuant to s 58 ADR Act.

  2. Submissions filed on 17 February 2025 in respect of summary dismissal.

  3. Submissions filed on 14 March 2025 in respect of summary dismissal.

  4. Further submissions filed on 19 May 2025.

  5. Final submissions filed on 22 October 2025.

  1. Neither party advised that generative AI had been used in the preparation of their written submissions.

Relevant background facts - Application for a Hotel Licence

  1. The facts are not in dispute in this matter.

  2. The Applicant is intending to develop an existing accommodation hotel in Mascot into a hotel which offers accommodation, food, gaming and alcohol.

  3. The Respondent included in its submissions a summary of the relevant Local Environmental Plan and land zoning map for the location of the proposed licenced premises, 205 O'Riordan Street in Mascot, showing that development consent is required to operate a hotel there. That is not controversial.

  4. The Applicant applied to the Bayside Panel for consent to engage in specified activities at the property identified as 205 O'Riordan Street in Mascot (the property). Those activities included:

"[a]lterations and additions to the existing hotel, demolition of part of the existing building and construction of a part five storey building to include hotel lobby, new pub including bistro, lounge room (gaming), ancillary hotel facilities and associated signage" (the proposed activities).

These are all activities falling within the definition of 'development' in the EPA Act.

  1. On 21 December 2023, the Applicant received a Notice of Determination from the Bayside Panel in respect of the proposed activities at the property (the Notice). The Notice refers to the 'Determination' as "Deferred Commencement". The Notice states:

“This Development Application has been determined under section 4.16(3) of the Environmental Planning and Assessment Act 1979 as a Deferred Commencement consent.

Evidence of compliance with the below conditions, sufficient to satisfy the Council as to those matters, must be provided within twenty-four (24) months of this notice. If satisfactory evidence is produced in accordance with this requirement, the Council shall give notice to the applicant of the date from which this consent operates.”

  1. The first page of the Notice listed the date of determination as 14 December 2023 but "Date consent commences:" was blank.

  2. The Notice included one deferred commencement condition "DC1 Sydney Trains" (condition DC1) which included the following statement:

"[t]his consent is not to operate until the Applicant/Developer satisfies the Council, within 24 months of the date of this consent, that it has obtained approval/certification has been forwarded to the Council".

  1. The third page of the Notice titled 'Additional Information' stated:

"To confirm the date upon which this consent becomes effective, refer to Section 4.20 of the Environmental Planning and Assessment Act 1979. Generally, the consent becomes effective from the determination date shown on the front of this notice. However, if unsure applicants should rely on their own enquiries.

To confirm the likelihood of consent lapsing, refer to section 4.53 of the Act. Generally, consent lapses if the development is not commenced within five years of the date of approval. However, if a lesser period is stated in the conditions of consent, the lesser period applies…".

  1. It was not disputed that the Notice is a development consent granted to the Applicant subject to the deferred commencement condition pursuant to s 4.16(3) EPA Act (the development consent).

  2. The development consent imposed other development conditions which were not 'deferred commencement' conditions. These included, for example, requirements such as the Applicant submitting an amended plan of management for the premises prior to an occupation certificate being issued (condition 102) and the Applicant obtaining an occupation certificate prior to any use or occupation of the building/development or part thereof (condition 134).

  3. On 26 December 2024, the development consent was registered on the NSW planning portal.

  4. On 2 May 2024, the Applicant applied to the ILGA for a New Hotel (full) licence with minors' area authorisation. The 'proposed premises' were listed as 205 O'Riordan Street in Mascot.

  5. ILGA refused the licence application on 20 November 2024. The letter of refusal stated that there was a deferred commencement issued for the premises which noted the consent shall not operate until the conditions therein described have been satisfied, that condition had not been satisfied and consequently:

"we do not have the power under section 45(3)(c) of the Liquor Act 2007 to grant the licence as the development consent or approval is not in force".

Issues for Determination

  1. The primary issue in this case is the correct construction of s 45(3)(c) Liquor Act.

  2. The parties agree that s 45(3)(c) imposes a mandatory condition on the exercise of power to grant a licence. It was conceded by ILGA that, once the Applicant satisfies condition DC1, then the Applicant would have a development consent that is 'in force' for the purpose of s 45(3)(c) Liquor Act and ILGA would not be prohibited from granting a licence.

  3. The dispute between the parties lies in whether the Applicant has a development consent that is 'in force' while it remains subject to condition DC1 which has not yet been fulfilled. The Applicant says it does. The ILGA says it does not and therefore it is prohibited from granting a liquor licence.

  4. Determination of the dispute requires consideration of the liquor licensing scheme set up by the Liquor Act as well as the relevant parts of the EPA Act.

The Liquor Act 2007

  1. In Independent Liquor and Gaming Authority v Auld [2018] NSWCATAP 184 (ILGA v Auld (AP)), the Appeal Panel described the licensing scheme of the Liquor Act as follows:

75. Part 3 establishes a regime of liquor licensing that operates by authorising:

1. a licensee;

2. to sell, by retail or wholesale or both, or supply liquor;

3. on specified premises;

4. at certain times;

5. subject to any conditions contained in the Liquor Act, any conditions imposed by the Authority or the Secretary and any other conditions authorised to be imposed under the Liquor Act.

  1. Division 1 of Part 4 of the Liquor Act gives power to ILGA to investigate and receive information and submissions about applications for any of the 8 types of licences specified in Part 3 of the Liquor Act.

  2. Each of the licences capable of being granted by ILGA are corporeally linked to a ‘licenced premises’. For example, a hotel licence:

"authorises the licensee to sell liquor by retail on the licensed premises for consumption on or away from the licensed premises" (s 14(1) Liquor Act)

  1. Licenced premises is defined in s 4 as "the premises to which a licence relates". It appears to be for that reason that the boundaries of licensed premises must be specified when the licence is granted (s 94 Liquor Act), and that there are processes for temporarily or permanently changing those boundaries (ss 94A, 94B and 96 Liquor Act).

  2. Section 45 Liquor Act sets out scope of ILGA's power with respect to the grant or refusal of liquor licences and relevantly provides:

45   Decision of Authority in relation to licence applications

(1)  The Authority may, after considering an application for a licence and any submissions received by the Authority in relation to the application, grant the licence or refuse to grant the licence. The Authority may determine the application whether or not the Secretary has provided a report in relation to the application.

(2)  The Authority may, in such circumstances as the Authority considers appropriate, treat an application for a licence as having been withdrawn.

(3)  The Authority must not grant a licence unless the Authority is satisfied that—

(a)  the applicant is a fit and proper person to carry on the business or activity to which the proposed licence relates, and

(b)  practices will be in place at the licensed premises as soon as the licence is granted that ensure, as far as reasonably practicable, that liquor is sold, supplied or served responsibly on the premises and that all reasonable steps are taken to prevent intoxication on the premises, and that those practices will remain in place, and

(c)  if development consent is required under the Environmental Planning and Assessment Act 1979 (or approval under Part 3A or Part 5.1 of that Act is required) to use the premises for the purposes of the business or activity to which the proposed licence relates—that development consent or approval is in force.

  1. Each type of licence is subject to specific conditions, some of which are set out in Part 3 of the Liquor Act. Subject to procedural fairness requirements, the ILGA also has a very broad power to impose, vary and revoke conditions upon licences on its own initiative (s 53 Liquor Act).

  2. Division 2 of Part 4 Liquor Act gives the Authority the power to grant additional authorisations to licensees who are granted a hotel licence (as well as other types of licences). Section 51 Liquor Act relevantly provides that this power is in the same terms as for the grant of a licence in s 45 Liquor Act and that ILGA also has a broad power to impose conditions on authorisations.

  3. Once licence is granted, the licensee is authorised to sell or supply liquor in accordance with the Liquor Act and the conditions of the licence (s10(2)). It is an offense for a licensee to not comply with any condition which is imposed by ILGA, as well as such other conditions imposed by the Liquor Act or regulations (s 11 Liquor Act).

  4. Section 46 Liquor Act provides that licences continue to be 'in force', unless suspended, until they expire, are surrendered, cancelled or otherwise cease to be in force.

Environmental Planning and Assessment Act 1979

  1. The EPA Act contains a statutory code with respect to the use and development of real property in NSW. Several key features are relevant to this case.

  2. Development is broadly defined in s 1.5 EPA Act as including a broad range of acts, matters or things concerning (a) the use of land, (b) the subdivision of land, (c) the erection of a building, (d) the carrying out of a work and (e) the demolition of a building or a work.

  3. Section 1.4 EPA Act defines "development consent" as:

"consent under Part 4 to carry out development and includes, unless expressly excluded, a complying development certificate".

  1. It an offence to carry out development without consent where consent is required or otherwise not in accordance with the consent (s 4.2(1) EPA Act). Development in accordance with a consent requires compliance with any conditions (Prodanovski Pty Ltd v Wollongong City Council [2013] NSWCA 202 at [15],[18]).

  2. Division 4.3 of Part 4 EPA Act sets out the process for making and determining applications for development that needs consent. Section 4.16 EPA Act stipulates the scope of the power of the consent authority to determine development applications:

4.16   Determination

(cf previous s 80)

(1) General A consent authority is to determine a development application by—

(a)  granting consent to the application, either unconditionally or subject to conditions, or

(b)  refusing consent to the application.

  1. A development consent may be granted pursuant to s 4.16 subject to a 'deferred commencement’ condition:

(3) “Deferred commencement” consent A development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority, in accordance with the regulations, as to any matter specified in the condition. Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition.

  1. Regulation 76 Environmental Planning and Assessment Regulation 2021 (EPA Regulation) makes it clear that development consents with deferred commencement conditions (deferred commencement consents) are to be clearly distinguished from other conditions:

76   Deferred commencement consent

(1) A development consent with a deferred commencement, as referred to in the Act, section 4.16(3), must be clearly identified as a “deferred commencement” consent, whether by using the expression, referring to that section or otherwise.

(2)  A deferred commencement consent must clearly distinguish between—

(a)  conditions that relate to matters about which the consent authority must be satisfied before the consent can operate (the relevant matters), and

(b)  other conditions.

(3)  A consent authority may specify the period within which the applicant must produce sufficient evidence to the consent authority to enable it to be satisfied about the relevant matters.

(4)  If the applicant produces evidence in accordance with this section, the consent authority must notify the applicant whether it is satisfied about the relevant matters.

(5)  If the consent authority does not notify the applicant within 28 days after the applicant produces the evidence, the consent authority is taken to have notified the applicant, on the day on which the period expires, that it is not satisfied about the relevant matters.

(6)  Subsection (5) applies for the purposes of the Act, section 8.7 only.

  1. There is broad power to grant a development consent subject to other conditions relating to acts and things the holder must satisfy during development work, prior to occupation of any relevant premises or property, the use of buildings and premises and during the ongoing use that is authorised by the development consent (s 4.17 EPA Act). Conditions can be imposed which have the effect of placing limits on the holder's ability to engage in the authorised development until specified matters have been attended to (eg ss 4.17(1)(d), (4), (7), (4B), (6) and (9) EPA Act).

  2. The EPA Act stipulates that a development consent has effect on and from the date it is registered on the NSW planning portal (s 4.20). No distinction is made in respect of deferred commencement consents.

  3. The EPA Act allows a development consent to be modified or revoked (s 4.55-4.57). It also provides the circumstances by which a development consent lapses (s 4.53 EPA Act).

Statutory Construction

Principles of Statutory Construction

  1. Interpreting s 45(3)(c) Liquor Act requires the application of well-settled principles of statutory construction.

  2. These principles were recently summarised by the Appeal Panel in Patrick v Secretary, Department of Communities and Justice [2025] NSWCATAP 206 at [ 21]:

(1) The starting point for statutory construction is the text; but context and purpose must be considered at the first stage, to assist in fixing the text with its meaning.

(2) To that end, we note the following statements. First, by the plurality (Kiefel CJ, Nettle and Gordon JJ) in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 (SZTAL) at [14], that:

“The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.”

(3) And also in SZTAL at [37], by Gageler J:

“… The task of construction begins, as it ends, with the statutory text. But the statutory text from beginning to end is construed in context, and an understanding of context has utility ‘if, and in so far as, it assists in fixing the meaning of the statutory text’.”

(4) Context includes the surrounding text of the relevant provision and indeed the whole of the relevant Act: Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249; [2005] HCA 28 (Palgo) at [37].

(5) Context includes the objects, as expressly stated: SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55 at [20].

(6) The mischief and purpose of an Act is also a relevant consideration: K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; [2009] HCA 4 at [52]; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2.

(7) A construction that promotes the purpose or objects of an Act is to be preferred: Interpretation Act 1987 (NSW), s 33; SZTAL at [39].

(8) Where possible, every word is to be ascribed some work to do; the construer of a statutory provision must “strive to give meaning to every word of the provision”: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [71].

(9) Words should not be read into a statute lightly: Taylor v Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 at [38].

(10) Where different words are used in the same provision or Act, this may (but not must), depending on the context, suggest they are intended to have different meanings: Kvelde v New South Wales [2023] NSWSC 1560 (Kvelde) at [210].

(11) When construing legislation, care must be taken not to be overly influenced by generalisations. As the High Court has observed, “fixing upon the general legislative purpose” of a statute carries with it the risk that the text does not “receive the attention it deserves”: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 (Alcan) at [51].

  1. The Tribunal is required to interpret s 45(3)(c) Liquor Act by reference to its text, having regard to the overall context and purpose of the Liquor Act.

  2. Starting with the specific text of s 45(3)(c) Liquor Act, ILGA must be satisfied that:

if development consent is required under the Environmental Planning and Assessment Act 1979 (or approval under Part 3A or Part 5.1 of that Act is required) to use the premises for the purposes of the business or activity to which the proposed licence relates - that development consent or approval is in force.

  1. The words following "if" up to the em dash are a condition which involves concepts in both the EPA Act (development consent is required under) and the Liquor Act (the business or activity to which the proposed licence relates). The words following the em dash refer to the specific development consent under consideration.

  2. Both parties agree that the EPA Act has an important role in interpreting the meaning of this section, although the Respondent submits that the reference to 'the business or activity to which the proposed licence relates' requires consideration of the statutory context of the Liquor Act to also inform what is meant by 'in force'. That, according to the Respondent, results in a requirement that the holder of a development consent is presently able to engage in the proposed use of the relevant premises in the manner proposed in their application for a liquor licence.

  3. The only sensible interpretation of s 45(3)(c) Liquor Act is that the EPA Act is the source of the meaning of 'development consent'. It follows that it is necessary to have regard to the provisions and context of the EPA Act to understand the scope of the definition (Certain Lloyd's Underwriters v Cross [2012] HCA 56 at [29]-[30] per French CJ and Hayne J, Keifel J agreeing).

  4. That does not mean that the entirety of the EPA Act is to be read alongside the Liquor Act as they might if both statutes formed part of a scheme like the gaming and liquor legislation scheme (cf Henadeck Pty Ltd v Independent Liquor and Gaming Authority; Niraula v Independent Liquor and Gaming Authority [2020] NSWCATAP 200 at [42]). There is nothing in the Liquor Act which suggests that intention.

Construction of the EPA Act

  1. Pursuant to the EPA Act, the definition of 'development consent' clearly includes deferred commencement consents.

  1. As a starting point, development consent is defined in s 1.4 EPA Act as:

"consent under Part 4 to carry out development and includes, unless expressly excluded, a complying development certificate".

Looking to Part 4, s 4.2(2) EPA Act provides that a development consent is obtained by the making of a 'determination' to 'grant' a development consent.

  1. At the point of determination, an application for a development consent is either 'granted' or 'refused' (s 4.16(1) EPA Act). A development consent is 'granted' even if it is subject to conditions (ss 4.16(1)(a) EPA Act), including a deferred commencement condition (s 4.16(3) EPA Act) and even if it excludes a specified part or aspect of the proposed development (s 4.16(4) EPA Act).

  1. A review of both the EPA Act and the EPA Regulation show that 'development consent' is referred to throughout without qualification. There are, however, specific provisions concerning deferred commencement consents. These specific provisions modify the rules that would otherwise apply to development consents in respect of lapsing (s 4.53 EPA Act), subdivisions (s 6.15 EPA Act) and appeals (s 8.7 EPA Act), where situations require a unique approach to deal with deferred commencement consents.

  2. For example, s 4.53 EPA Act concerning lapsing of consents, provides:

4.53   Lapsing of consent

(cf previous s 95)

(1)  A development consent lapses—

(a)  5 years after the date from which it operates if the development consent commences operation after the prescribed period, or

(b)  5 years after the date from which it operates if the development consent commences operation during the prescribed period, or

(c)  2 years after the date on which the development consent would otherwise have lapsed if the development consent commenced operation before, and has not lapsed at, the commencement of the prescribed period.

(2)  A consent authority may reduce a period specified in subsection (1)(a) or (b) in granting development consent.

…

(6) Despite any other provision of this section, a development consent that is subject to a deferred commencement condition under section 4.16(3) lapses if the applicant fails to satisfy the consent authority as to the matter specified in the condition within—

(a)  5 years after the grant of consent if the consent is granted after the prescribed period, or

(b)  5 years after the grant of consent if the consent is granted during the prescribed period, or

(c)  2 years after the date on which the development consent would otherwise have lapsed if—

(i)  the grant of consent was before the commencement of the prescribed period, and

(ii)  the development consent has not lapsed at that commencement.

  1. The text of this section is consistent with the view that that references to 'development consent' throughout the EPA Act and EPA Regulations is intended to include those with deferred commencement conditions. In s 4.53(1) EPA Act, 'development consent' must necessarily include both development consents without any deferred commencement conditions (which operate from the time of registration) and development consents where the deferred commencement condition has been satisfied (which operate from the date of satisfaction). This section puts those development consents on an even time footing as far as lapsing is concerned; they each lapse the same period after the consent becomes operational. Conversely, s 4.53(6) EPA Act concerns development consents where the deferred commencement condition has not been satisfied (meaning it has legal effect but is not operational pursuant to s 4.16(3)). Those consents lapse the specified period after the 'grant of consent'.

  2. This interpretation is consistent with authority which, considering substantially similar historical provisions of the EPA Act, confirmed that a deferred commencement consent is a final development consent even though it does not operate until the condition has been satisfied: Australand Holdings v Hornsby Shire Council [1998] 98 LGERA 312 at page 317 (Australand); Cameron v Nambucca Shire Council (1997) 95 LGERA 268 at [275]-[256] approved in Weal v Bathurst City Council [2000] NSWCA 88 at [5].

  3. Once it is accepted that, for the purpose of the EPA Act, a development consent includes those that are subject to a deferred commencement condition, the proper inquiry is what does the EPA Act have to say about when a development consent is 'in force' and when it is not 'in force'.

  4. The grammatical context of 'in force' must be considered. The words 'in force' appear in various contexts within the EPA Act including, for example:

  1. References to government policies, plans, the Building Code of Australia, planning agreements and planning instruments that are 'in force' (ss 3.3, 3.4, 6.28, 10.12 EPA Act);

  2. References to sections of the EPA Act and EPA Regulation that were previously 'in force' (ss 4.60, 4.63 EPA Act); and

  3. References to development consents being 'in force' (ss 4.2, 4.57, 4.66, 4.67, 4.68, 4.70, 6.10, 6.15, 6.18 EPA Act).

  1. The use of the same word across various contexts indicates that 'in force' has a broad and universal meaning rather than specific or technical meaning in the EPA Act.

  2. The EPA Act also uses two distinct words to describe the legal consequence of a grant of a development consent.

  1. Development consents are described as being 'in effect' (s 4.20 EPA Act) as 'taking effect' (s 4.57, 4.62 EPA Act); as ceasing/being taken to have effect (s 8.13, 8.23 EPA Act).

  2. Development consents are also described by reference to when they are 'in force' (ss 4.2, 4.57, 4.66, 4.67, 4.68, 4.70, 6.10, 6.15, 6.18 EPA Act).

  1. Deferred commencement consents are specifically described as having a point at which they 'operate' (ss 4.16, 4.16 and 8.7 EPA Act).

  2. None of the terms 'in effect', 'in force' or 'operate' are defined in the EPA Act or any relevant legislative instruments. The Tribunal was not referred to any extrinsic materials which shed light on the intended meaning of these terms in the EPA Act.

  3. According to Black's Law Dictionary, 'in force' is defined as "in effect, operative, binding". If that definition were applied to the EPA Act, it would suggest that the terms 'in effect', 'in force' and 'operate' are interchangeable. Such a finding would be inconsistent with the presumption that Parliament intended that different words are intended to have different meaning (Stewart v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCAFC 196). That presumption must yield however to the requirements of the context in which the words are used (Lygon Nominees Pty Ltd v Commissioner of State Revenue [2007] VSCA 140 at [31]).

  4. The parties did not refer the Tribunal to any specific judicial consideration of the meaning of 'in force', nor has the Tribunal been able to find any direct authority on point by reference to the EPA Act or the Liquor Act. The Tribunal's review suggests there has been limited judicial consideration of the meaning of 'in force' and, where it has been considered the meaning is very specific to the legal context in which it arises giving those cases limited precedential value. The Tribunal agrees with the view expressed by Kenny J in Bertran v Vanstone [2000] FCA 359 at [63] when her Honour considered the meaning of a 'warrant in force' for the purpose of extradition legislation that:

"[p]lainly enough, the sense of phrases such as "in force", "of force and effect", "put in force" etcetera depends very much on the context in which they are used."

  1. All roads lead to Rome. The meaning of 'in force' and its concurrence or contradistinction from 'in effect' or 'operate' must be derived from the context in which they are used in the EPA Act.

  2. The Respondent argued in oral submissions that 'in force' is used in two senses in the EPA Act. The first sense is minimal, meaning that a development consent is extant, not having lapsed or been revoked. The second is substantial, meaning it has its intended legal effect of giving authority to the holder to conduct the development in question (which is akin to meaning it 'operates'). The Respondent argued that a development consent is described in the EPA Act as being 'in force' when it intended to exclude deferred commencement consents as they were not operational. It was said that the distinction in s 4.2(1) EPA Act between consent being granted and being 'in force' demonstrated this proposition. That section relevantly provides:

4.2   Development that needs consent

(cf previous s 76A)

(1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless—

(a)  such a consent has been obtained and is in force, and

(b)  the development is carried out in accordance with the consent and the instrument.

Maximum penalty—Tier 1 monetary penalty.

(2)  For the purposes of subsection (1), development consent may be obtained—

(a)  by the making of a determination by a consent authority to grant development consent, or…

  1. The Respondent also relied upon several sentencing cases arising from criminal prosecutions where the defendant was convicted of carrying out development in contravention of s 4.2(1)(a) EPA Act. In these cases, there was a deferred commencement consent, the relevant condition had not yet been satisfied and s 4.2(1)(a) EPA Act was said to have been contravened because there was no development consent 'in force' (eg Holroyd City Council v Abouantoun [2003] NSWLEC 379; Kiama Municipal Council v Gerroa Boat Fisherman's Club [2010] NSWLEC 72).

  2. As the Applicant pointed out, these cases involved pleas of guilt and there was no dispute that there was a breach of s 4.2 EPA Act. While the participants in those cases obviously shared the opinion that s 4.2(1)(a) EPA Act required the deferred commencement condition to be satisfied before the development consent was 'in force', it was not an issue in dispute so there was no consideration of argument on the point by the Land and Environment Court. This means the cases have no precedential value. In any event, it is difficult to draw any inferences from these cases because s 4.2(1) (a) and (b) EPA Act are cumulative requirements and that section can be breached because the development consent is not 'in force' or because the development has not been carried out in accordance with the terms of a deferred commencement condition.

  3. The Applicant contends that s 4.2(1) EPA Act demonstrates that the EPA Act uses 'in force' in the minimal sense. It is argued that subparagraph (a) only requires a development consent to have been granted and registered for it to have 'force and effect' and that subparagraph (b) requires that the recipient of the consent has complied with the conditions attaching to the development consent, including any deferred commencement condition. On this reading, 'in force' is taken to be a reference to the legal effect of granting a development consent; an effect which continues until a development consent lapses or is revoked. For the reasons that follow, the Tribunal agrees with the Applicant's construction.

  4. Together s 4.2(1)(a) and s 4.20 EPA Act show a clear legislative distinction between the consequence of granting of a development consent, captured by s 4.2(2) EPA Act, and when the development consent no longer has any legal effect. This distinction is clear in s 4.2(1)(a) from the juxtaposition of 'has been obtained' and 'is in force'. It is also consistent with s 4.20 which stipulates that a development consent 'has effect' from the date it is registered on the NSW planning portal. This is an administrative process which must be done within 14 days of determining the development application (reg 87 EPA Regulation). No distinction is made in any of these provisions between development consents that do or do not have conditions. Plainly, a development consent has legal effect from the date of being granted (Roberts v Blue Mountains City Council [2012] NSWLEC 2 at [33] (Roberts)).

  1. Subject to an event occurring which makes a development consent unenforceable (which must include revocation, statutory lapsing or a declaration that the consent is invalid), the holder of a development consent is entitled to rely upon it and exercise and enforce the rights embodied in it by reference to its terms and relevant planning laws (Coalcliff Community Association Inc v Minister for Urban Affairs and Planning [1999] NSWCA 317 at [83]). There is no legislative reason apparent from the structure or text of the EPA Act for inferring, as the Respondent seeks, that deferred commencement consents should be treated differently to other development consents in this respect. Nor should such an inference be lightly drawn if it results in the reading down of valuable property rights (R & R Gazzolari Pty Ltd v Parramatta City Council [2009] HCA 12).

  2. The EPA Act addresses when a development consent no longer has any legal effect:

  1. Revocation takes effect from the date that the holder of the development consent is served with the relevant instrument (s 4.57(4) EPA Act).

  2. Lapsing results from the automatic expiry of set periods in s 4.57 EPA Act. Once a development consent has lapsed, it is no longer amenable to review or appeal (ss 8.2, 8.6 EPA Act) and it logically follows that it no longer has any force or effect under the EPA Act.

  1. The EPA Act also addresses the legal effect of appeals on a development consent. For example, a development consent is temporarily suspended while the appeal is on foot (s 8.13(1)(2)), a decision to refuse a development consent results in the development consent ceasing to have effect (s 8.13(4) and a decision that a development consent is valid/invalid takes effect from the date set by the relevant court (s 8.13(5)).

  2. The Tribunal does not accept the Respondent's contention that the stipulation in s 4.16(3) EPA Act that a deferred commencement consent does not 'operate' until the condition is satisfied makes those consents unique and, as the holder cannot undertake the relevant development activity, that must mean that they are not 'in force'. Not only is that argument inconsistent with the scheme of the EPA Act referred to at pars 60-4 above, but the Court in Roberts also rejected a similar argument that provisions concerning deferred development consents are a statutory code and general provisions in the EPA Act do not apply to them.

  3. To the contrary, interpreting a deferred commencement consent as being both 'in force' (by grant/registration) and not 'operational' (by s 4.16(3) EPA Act) is consistent with the scheme of the EPA Act according to the decision of Australand. The Applicant relied upon Australand as binding authority for the proposition that, once granted, a deferred commencement consent is 'in force' even though it is not operational. Although the ruling of the Court uses the words 'in force', the reasons of Bignold J shows that there was no specific consideration of the meaning of 'in force' in the EPA Act. Regardless, the Tribunal considers that this decision provides support for interpreting all development consents that have legal existence and effect as being 'in force' until they are revoked, lapse or are otherwise found to be invalid.

  4. The issue in Australand was whether a deferred commencement consent was capable of being modified and appealed where the applicant had not provided material to satisfy the condition within the time specified in the EPA Act (now covered by r 76 EPA Regulations). The Council in that case contended that failure to comply with the time stipulation should result in the consent being treated as having lapsed and therefore being incapable of modification or appeal. In that context, Bignold J's judgment carefully traversed the relevant provisions of the EPA Act and caselaw focused on the question as to whether in the relevant circumstances development consent ceased to have any effect. Bignold J found no reason to infer that the deferred commencement consent had lapsed and, consistent with authority, it:

"remained in force as a development consent, although not operative" [page 327].

  1. The Tribunal accepts the Applicant's submission that s 6.15 EPA Act, concerning subdivisions, demonstrates the point that "'in force' and 'operational' are used as cumulative requirements" in the EPA Act rather than being terms that are used in contradistinction. That section provides:

6.15   Restrictions on issue of subdivision certificates

(cf previous s 109J)

(1)  A subdivision certificate must not be issued for a subdivision unless—

…

(b)  in the case of subdivision that cannot be carried out except with development consent, a development consent is in force with respect to the subdivision, and

…

(e) in the case of subdivision for which the operation of the development consent has been deferred under Part 4, the applicant has satisfied the consent authority concerning all matters as to which the consent authority must be satisfied before the development consent can operate, and

…

(Emphasis added)

  1. If a development consent that is 'in force' excludes deferred commencement consents, the effect would be that s 6.15 EPA Act could never apply because of the inability to satisfy subparagraph (1)(b). That would make subparagraph 1(e) otiose. Conversely, no such problem arises if 'in force' applies to all development consents including deferred commencement consents because subparagraphs (b) and (e) are not mutually exclusive and both are capable of being satisfied. This strongly points against the Respondent's construction of 'in force' as meaning 'operational' in the EPA Act.

  2. If the Respondent's construction of 'in force' being read as 'operational' were correct, there should be a consistent and rational outcome wherever it is used across the EPA Act. In some sections of the EPA Act an argument could be made that 'in force' is used in the minimal sense and also that it is being used in the substantial sense such that it is intended to apply only to development consents that are operational and therefore to exclude unsatisfied deferred commencement consents (ss 4.66, 4.68, 4.70 and 6.10 EPA Act). One section, however, produces an illogical outcome from the Respondent's construction which suggests it is incorrect.

  3. Pursuant to s 4.57(1) EPA Act, the Planning Secretary or a Council is entitled to revoke:

"any development for which consent under this Division is in force".

No submissions were made which pointed to any legislative intention or reason why this power would not be available to deferred commencement consents. It might be argued that this power is not needed prior to the deferred commencement condition being satisfied because it would not be operational. The effect of that construction would be that a council wishing to revoke a deferred commencement consent could not do so until the condition was satisfied. That outcome seems to produce an irrational effect. If the consent could not be revoked until the holder of the consent had taken further steps to comply with the condition, they are likely to incur further expenses in doing so. Once revoked, however, the holder would be entitled to compensation from the date that the consent became effective, which according to s 4.20 EPA Act is from the date of grant/registration. By contrast, if 'in force' is interpreted its minimal sense, then the council could revoke a deferred commencement consent at the earliest appropriate time, minimising the costs incurred by both the holder and the council.

  1. The above review of relevant provisions of the EPA Act and decisions such as Roberts and Australand leads to the result that the Tribunal prefers a construction that a deferred commencement consent is to be treated in the same way as all development consents are under the EPA Act in the absence of any specific provisions to the contrary. Like all development consents, once granted, a deferred commencement consent has ongoing legal effect; it is 'in force' and it continues to have force until some event happens to remove its legal effect, such as revocation, statutory lapsing or a finding of invalidity.

  2. Comfort is drawn in the above construction having regard to the actual terms of the Notice granting the development consent with a deferred commencement condition in issue in the present case. In addition to the Applicant's review and appeal rights, the Notice draws attention to two matters. First, the date that the consent becomes effective by reference to s 4.20 EPA Act and, second, the statutory lapsing provisions by reference to s 4.53 EPA Act. That suggests both of those concepts are viewed by the consent authority, the Bayside Panel, as governing the boundaries of when that type of development consent is in force.

  3. The next question is whether the construction of 'in force' in s 45(3)(c) Liquor Act is the same as that in the EPA Act.

Construction of Liquor Act

  1. The Respondent argued that the reason that s 45(3)(c) Liquor Act requires a development consent to be 'in force' before ILGA can grant a liquor licence is to avoid a disjunction whereby a liquor licence is granted to a person who does not hold planning permission to use and develop land/premises in the manner authorised by the liquor licence. This purpose is said to derive from the present text of the Liquor Act and its legislative history. It was submitted that, to fulfil this purpose, s 45(3)(c) Liquor Act requires the applicant to have a development consent which can presently be acted upon. Accordingly, it should be read as requiring the applicant for a liquor licence to have a development consent that is 'operational' for the purpose of the EPA Act.

  2. For the reasons that follow, the Tribunal does not agree with the Respondent's construction of s 45(3)(c) Liquor Act. The Tribunal accepts the Applicant's contention that s 45(3)(c) Liquor Act only mandates that an applicant for a liquor licence to have a development consent that is 'in force' in the manner governed by the EPA Act.

  3. Like the EPA Act, the words 'in force' in the Liquor Act are not defined and are used in a wide variety of contexts; therefore, the phrase has its ordinary and not technical sense.

  4. There are no explanatory materials which give any specific assistance in determining the legislative intention behind s 45(3)(c) Liquor Act. There can be no value in the present case in traversing the history and purpose of past amendments to the Liquor Act. As the Respondent notes in its submissions, the enactment of the Liquor Act in 2007 (which included s 45(3)(c) in its present form) was the result of a:

"complete rewriting of the New South Wales liquor licensing laws"

(New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 28 November 2007 at 4632].

  1. Furthermore,

"[d]etermination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted. It is important in this respect, as in others, to recognise that to speak of legislative "intention" is to use a metaphor. Use of that metaphor must not mislead. "[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have" (emphasis added) [footnotes removed]

(Certain Lloyd's Underwriters v Cross [2012] HCA 56 at [25] per French CJ and Hayne J, Keifel J agreeing).

  1. The interpretation of s 45(3)(c) Liquor Act must come from the text and the statutory purpose as derived from the scheme of the legislation.

  2. In Auld v Independent Liquor and Gaming Authority [2018] NSWCATAD 25 (Auld v ILGA - AEOD), the Tribunal considered the scope and purpose of the Liquor Act and s 45(3)(c) in the context of an application to remove an existing hotel licence from existing premises and grant a different type of licence on new premises; holding as follows [27]:

The Environmental Planning and Assessment Act 1979 is primarily concerned with the use of land in NSW and, among other things, requires approvals be given for certain uses of land. The purpose of s 45(3)(c) is to prevent a licence being granted (or in this case removed) by the Authority in relation to particular premises unless development consent (if required under the relevant environmental planning instrument) has been granted for the use of the premises (or land) for a particular business or activity proposed to be carried on at those premises. That is, the provision is concerned to ensure that prior approval, if required, for the use of the premises for a particular business or activity is in place before a liquor licence is granted. The provision thus ensures the integrity of both the planning and liquor licencing regimes.

  1. Although this decision was subsequently appealed and ultimately set aside by the Court of Appeal (Independent Liquor and Gaming Authority v Auld [2019] NSWCA 88), the Tribunal's construction of s45(3)(c) was approved by the Appeal Panel (ILGA v Auld - AP) and these findings were not overturned or the subject of any disapproval as the Court of Appeal did not find it necessary to decide those grounds. Specifically, the Appeal Panel found:

  1. That "s 45(3)(c) can be seen as designed, at least in part, to ensure that the actual business or activity to be conducted on the proposed premises is lawful under the applicable planning regime" (par 190) (Emphasis added); and

  2. That the proper construction of s 45(3)(c) required ILGA to consider "the nature of the actual activity or business to be carried out at the premises on the basis of what is permitted under the authority conferred by the proposed licence" (par 193)(Emphasis added) including any conditions attaching the liquor licence.

  1. The construction of s 45(3)(c) Liquor Act by the Tribunal in Auld v ILGA - AEOD and the Appeal Panel in ILGA v Auld - AP is consistent with this Tribunal's view that 'in force' means only that the applicant has been granted a development consent that has not been revoked or lapsed pursuant to the EPA Act or otherwise declared to be invalid. The focus of the section is to ensure that the proposed use of the intended licenced premises has been authorised under planning legislation by the grant of a development consent.

  2. The Respondent's construction of s 45(3)(c) Liquor Act to the effect that the applicant must be presently entitled to engage in the activity authorised by a development consent would potentially result in ILGA needing to assess matters of planning law for every development application. That is because a deferred commencement condition it is not the only condition that prevents its holder from presently being entitled to undertake the approved development, including engaging in the proposed use of the premises. As averred to in par 49 above, conditions may be imposed on a development consent that, for example:

  1. Limit the period during which development may be carried out in accordance with the consent so granted (s 4.17(1)(d) EPA Act).

  2. Require that development that is ancillary to the core purpose of the development is carried out to the satisfaction of the consent authority (s 4.17(2) EPA Act).

  3. Require a development (or aspect of the development) achieve specified outcomes or objectives (s 4.17(4) EPA Act).

  4. Require the holder of a development consent to provide financial assurance in respect of the approved development, for example, by way of a bank guarantee (s 4.17(4B) EPA Act).

  5. Require the holder give security for the payment of specified costs prior to undertaking any development authorised by the consent (s 4.17(6)(9) EPA Act).

  1. On the Respondent's logic, a development consent which is granted and subject to any of the above conditions (which they accept would be 'in force' pursuant to the EPA Act) would not be 'in force' for the purpose of the Liquor Act because further actions must be taken by the applicant, in some cases subject to the further satisfaction of the consent authority, before they can engage in the proposed activity/use of the premises. This construction would require the ILGA to look in detail at the relevant conditions of each development consent to assess whether s 45(3)(c) Liquor Act is complied with. There is nothing in the Liquor Act, including the objects, which gives any support for the notion that ILGA should concern itself with the terms of a development consent beyond whether it has been granted and has not been revoked or lapsed or found to be invalid.

  2. The Respondent's construction of 'in force' as having different meanings in the EPA Act and the Liquor Act also creates an unhelpful and unwarranted disjunction in circumstances where it is to be presumed from the interconnection of these Acts in s 45(3)(c):

"that Parliament intended its legislation to operate rationally, efficiently and justly, together."

(Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719 at [723]-[724]).

  1. The Respondent could not point to any mischief caused in the Liquor Act if a deferred commencement consent was taken, consistently with the EPA Act, to be 'in force' for the purpose of s 45(3)(c) Liquor Act. The policy justification for not interpreting deferred commencement consents as being 'in force' was said to be that it avoids uncertainty as to whether the applicant would ever fulfil the condition and be entitled to engage in the use of the premises which is authorised by the liquor licence. The Tribunal does not accept this submission.

  2. As the Appeal Panel noted in ILGA v Auld - AP at [76], liquor licences give authority to licensees to conduct regulated activity, they do not mandate that they engage in that activity. This applies equally in respect of a development consent. The holder may engage in the regulated development consistent with the terms of the consent, but there is nothing in the EPA Act which requires them to do so if they choose not to (for any reason). There is nothing about the scheme of the Liquor Act or the EPA Act that suggests that this certainty is desirable let alone of such significance that it requires a construction of s 45(3)(c) as excluding deferred commencement consents.

Disposition

  1. The Tribunal is required to determine what is the correct and preferrable outcome.

  2. The Tribunal is of the view that, when determining an application for a liquor licence, s 45(3)(c) Liquor Act requires ILGA to be satisfied that:

  1. the applicant has been granted a development consent or approval pursuant to the EPA Act which is in force meaning it has not been revoked and has not lapsed in the manner governed by the EPA Act or otherwise declared to be invalid; and

  2. the type of development permitted by the development consent or approval includes use of the proposed licenced premises for the purposes of the business or activity to which the proposed liquor licence relates.

  1. In the present case, the Respondent refused to grant a hotel liquor licence to the Applicant because of its view that because the development consent granted to the Applicant is subject to condition DC1 it did not satisfy (1) above. That decision was based on a flawed construction of s 45(3)(c) Liquor Act. The Applicant has been granted a development consent (subject to condition DC1) which has not been revoked, has not lapsed and which the law presumes is valid. It is in force and therefore (1) above has been satisfied.

  2. This case has focused almost exclusively on the legal construction as to whether the Applicant held a development consent that was 'in force' and there was no direct argument about whether the type of development permitted by the consent satisfies (2) above. On the face of the material before the Tribunal, this requirement appears to be satisfied but as it was not the subject of argument and it is not central to this decision it is not necessary to express a concluded view.

  3. The Respondent's decision to refuse to grant a hotel liquor licence to the Applicant on the ground that the Applicant did not have a development consent that is in force is not legally correct. The next question is what should follow from this determination.

  1. The Tribunal invited the parties to make submissions on the question as to whether the application for review should be determined pursuant to s 63 ADR Act or whether an order for remitter should be made pursuant to s 65 ADR Act if the Tribunal found that the Respondent’s decision to refuse to grant a hotel liquor licence was legally incorrect. Both parties urged the Tribunal to remit the matter to ILGA pursuant to s 65(1) ADR Act. For the reasons that follow, the Tribunal accepts this approach is to be preferred.

  2. The Respondent’s decision that it did not have power to grant a hotel liquor licence to the Applicant meant that there was no consideration of the application on its merits by ILGA and, it would appear, no investigations, inquiries or referrals were undertaken as permitted by s 42 Liquor Act. The Respondent has not indicated any view on the merits of the application and has informed the Tribunal that it wishes to reconsider its decision if the Tribunal finds that it is not precluded from granting the Applicant a hotel licence by s 45(3)(c) Liquor Act. It is plainly appropriate that ILGA, as the body with authority for investigating and assessing licence applications, should initially consider the merits of whether the Applicant should be granted a hotel licence. There is no utility in the Tribunal proceeding to determine the correct and preferrable decision until that has occurred. It may be that the Respondent determines to grant a hotel licence to the Applicant, in which case there will be no dispute requiring resolution by the Tribunal.

  3. Turning to the power of the Tribunal, the following options are available that will give the Respondent the opportunity to reconsider its decision:

  1. The Tribunal could make orders pursuant to s 63(3)(d) ADR Act to set aside ILGA’s decision and remit the matter to ILGA for reconsideration in accordance with these reasons.

  2. The Tribunal could remit the decision now to ILGA for reconsideration of the decision pursuant to s 65(1) ADR Act.

  1. The power to remit in s 63(3)(d) ADR Act has attraction in this case. ILGA’s decision was plainly legally wrong and should be set aside. The exercise of this power is constrained, however, pursuant to Commissioner of Police, NSW Police Force v Davies [2025] NSWCATAP 36 at [27] to circumstances where:

1   ... the Tribunal ... is “unable to make” or is “not in a position to formulate” a decision in substitution for the decision set aside.

Neither party addressed this issue in their submissions, but it is unnecessary to determine whether this power is available in the present case as, for the reasons that follow, the Tribunal considers that remitter under s 63(3)(d) ADR Act in the present case would result in a significant disadvantage for the Applicant and that remitter under s 65(1) ADR Act better achieves justice between the parties in this case.

  1. If the Tribunal were to remit the proceedings pursuant to s 63(3)(d) ADR Act, the decision is final and the new decision by ILGA would exhaust the Tribunal’s administrative review jurisdiction: Webb v Port Stephens Council [2020] NSWCATAP 152 at [25] (Webb). The Appeal Panel in Webb found at [25] to [38] that a decision of an administrator flowing from a direction by the Tribunal to reconsider the decision under review pursuant to s 63(3)(d) ADR Act is not an administratively reviewable decision. If Webb applies to the present case, the result would be that if, after considering the merits, ILGA refuses to grant the Applicant a hotel licence, the Applicant would have no right to seek administrative review of that refusal decision.

  2. In Webb a relevant factor for the Appeal Panel was that the enabling legislation, the Government Information (Public Access) Act 2009 (NSW) (GIPA), provided that reviewable decisions include a decision that is “in response to an access application [emphasis added]”. It was held that a decision made at the direction of the Tribunal following remitter pursuant to s 63(3)(d) ADR Act could not be “in response to” an access application.

  3. The definition of reviewable decision in GIPA is substantively different to the power of review under the GLA Act which arises in respect of a decision “in relation to an application [emphasis added]” (s 13A GLA Act) for a hotel licence (s 4(a)(i) GLA Regulation). On its face, “in relation to” is arguably so broad as to encompass a decision of an administrator made following remitter.

  4. With one exception, the only decisions applying Webb appear to relate to administrative review under GIPA. In Fong v Secretary, Department of Customer Service (No 2) [2025] NSWCATOD 84 (Fong (No 2)), following a thorough consideration of the law, Senior Member Ledda found that Webb was applicable to administrative review under the Home Building Act 1989 (NSW) (HB Act). Relevantly, the HB Act provides for administrative review by the Tribunal of “any decision... relating to the application [Emphasis added]” in question (s 83B(1) HB Act). Senior Member Ledda persuasively reasoned that, while the words “relating to” in the HB Act would include a decision made in response to a remitter from the Tribunal, having regard to the history of the remitter powers in s 63 and s 65 ADR Act and proper construction of the ADR Act, an order under s 63(3)(d) ADR Act exhausted the Tribunal’s administrative review jurisdiction over the decision made in response to that order.

  5. There is no material difference between a decision that is amenable to review pursuant to the gaming and liquor legislation and the HB Act, and for the reasons in Fong (No 2), the Tribunal is satisfied that Webb applies in the present case such that, if an order was made remitting the matter pursuant to s 63(3)(d) ADR Act, the Applicant would be precluded from further administrative review of the decision following remitter. While nothing about either Webb or Fong (No 2) affects any right the Applicant might have to seek judicial review, lack of merits review would remove from the Applicant a substantial right of access to justice.

  6. If the Tribunal remits the matter to ILGA pursuant to s 65(1) ADR Act, that decision is interlocutory but there is a clear pathway forward which protects the interests of all parties. The effect of this section was explained by the Appeal Panel in Wojciechowska v Secretary, Department of Communities and Justice; Secretary, Department of Communities and Justice v Wojciechowska [2025] NSWCATAP 248:

34. In the usual course of a remittal under s 65 of the ADR Act, a decision maker may, on reconsidering the decision, do one of several things: affirm, vary or set aside the original decision and in substitution make a new decision. Correlatively, the access applicant may:

1. if the decision is not varied or substituted, proceed on the application for review, as it was, or

2. if the decision is varied or substituted, proceed on the application for review on that varied or substituted decision; or

3. withdraw the application.

  1. Both parties seek that the Tribunal remit the matter pursuant to s 65(1) rather than s 63(3)(d) ADR Act. That approach is within the Tribunal’s power and, in the circumstances of this case, the Tribunal is satisfied it accords with the object of resolving the real issues justly, quickly and cheaply.

  2. For these reasons, the decision under review will be remitted to the Respondent for reconsideration. The proceedings will be listed for directions as to the future conduct of the matter unless, following the outcome of the reconsideration by the Respondent, the Applicant withdraws their application for review.

  3. Orders

  1. Pursuant to s 65(1) Administrative Decisions Review Act 1997, the matter is remitted to the Respondent for reconsideration.

  2. By 22 December 2025 the Respondent is to tell the Tribunal and the other party whether the decision has been affirmed, varied or set aside and if there is a new decision.

  3. By 14 January 2026 the Applicant is to tell the Tribunal and the other party whether they are continuing or withdrawing the application for review.

  4. The proceeding is listed for directions on 20 January 2026 at 9:30 am at John Maddison Tower, Level 10, 86-90 Goulburn Street, Sydney (unless withdrawn prior).

  5. The parties are granted liberty to apply to relist the matter for further directions on giving 3 days notice.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.


Registrar

Decision last updated: 10 November 2025

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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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Auld v Independent Liquor and Gaming Authority [2018] NSWCATAD 25
Bertran v Vanstone [2000] FCA 359
Certain Lloyd's Underwriters v Cross [2012] HCA 56