Kayora Pty Ltd v Leichhardt Council

[2010] NSWCA 35

New South Wales

Court of Appeal

CITATION:	Kayora Pty Ltd v Leichhardt Council [2010] NSWCA 35
HEARING DATE(S):	19 February 2010
JUDGMENT DATE:	17 March 2010
JUDGMENT OF:	Tobias JA at 1; Campbell JA at 61; Sackville AJA at 62
DECISION:	(a) Appeal allowed; (b) Set aside the orders made by Biscoe J on 10 August 2009; (c) Declare that the appellants are entitled to use the area described as the “outdoor beer garden” on the plan dated 2 September 1953 for the purposes of a licensed hotel including as a beer garden provided that this declaration does not extend to the erection of any building (as defined in s 4(1) of the Environmental Planning and Assessment Act 1979) upon the said area without first obtaining development consent therefor; (d) The respondent to pay the appellants’ costs of the proceedings in the Land and Environment Court and of the appeal.
CATCHWORDS:	ENVIRONMENT AND PLANNING – Development control – Consent – Construction – Commercial uses – Hotels – Existing uses – Characterising purpose of use – Consent granted to the continuance of the existing use of the subject buildings and land as hotel premises – Whether the consent permits the use of the rear yard of the subject land as a beer garden – Whether rear yard was used for the purposes of a hotel
LEGISLATION CITED:	County of Cumberland Planning Scheme Ordinance Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Liquor Act 1912 (as in force at September 1953) Liquor (Amendment) Act 1954
CATEGORY:	Principal judgment
CASES CITED:	House of Peace Pty Ltd & Anor v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498; (2000) 106 LGERA 440 Kayora Pty Ltd v Leichhardt Council [2009] NSWLEC 126 North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd (1989) 16 NSWLR 50 Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGERA 305 Shire of Perth v O’Keefe & Anor (1964) 110 CLR 529 South Sydney City Council v C Maloney Pty Ltd (1996) 89 LGERA 324 Steedman v Baulkham Hills Shire Council (No 1) (1991) 87 LGERA 26
PARTIES:	Kayora Pty Limited North Annandale Hotel Leichhardt Council
FILE NUMBER(S):	CA 2009/298350
COUNSEL:	1&2A: M J Leeming SC / P Clay R: T Robertson SC / S Duggan
SOLICITORS:	1&2A: Back Schwartz Vaughan Solicitors, Sydney R: Pikes Lawyers, Sydney
LOWER COURT JURISDICTION:	Land & Environment Court
LOWER COURT FILE NUMBER(S):	LEC 41290/08
LOWER COURT JUDICIAL OFFICER:	Biscoe J
LOWER COURT DATE OF DECISION:	10 August 2009
LOWER COURT MEDIUM NEUTRAL CITATION:	Kayora Pty Ltd v Leichhardt Council [2009] NSWLEC 126

CA 298350/09
CA 40297/09
L&E 41290/08

TOBIAS JA
CAMPBELL JA
SACKVILLE AJA

Wednesday 17 March 2010

KAYORA PTY LTD & ANOR v LEICHHARDT COUNCIL

Judgment

1 TOBIAS JA: Kayora Pty Ltd (the first appellant) and North Annandale Hotel Pty Ltd (the second appellant) are the owner and operator respectively of the licensed hotel located upon premises at No. 105 Johnston Street, Annandale (the hotel land) and known as the North Annandale Hotel (the Hotel). The Hotel is on the corner of Johnston and Booth Streets and has a frontage to both.

2 By an amended Class 4 summons filed in the Land and Environment Court on or about 24 July 2009 to which Leichhardt Council (the Council) was joined as the defendant, the appellants sought the following declaration:

“A declaration that the [appellants] are entitled to use the area described as the ‘outdoor beer garden’ on plan dated 2 September 1953 for the purpose of an Hotel, including as a ‘beer garden’. “

3 The proceedings were heard by Biscoe J who, on 10 August 2009, dismissed the appellants’ summons and ordered that they pay the Council’s costs: Kayora Pty Ltd v Leichhardt Council [2009] NSWLEC 126. It is from those orders that the appellants appeal to this Court pursuant to s 58(1) of the Land and Environment Court Act 1979. Such an appeal is an “all grounds” appeal and is not limited to a question of law. It is therefore open to this Court to find facts where necessary and appropriate especially where, as in this case, all the relevant evidence is documentary.

The relevant facts

4 The Hotel has been in existence upon the hotel land for many years and, relevantly, existed prior to 27 June 1951 which was “the appointed day” for the coming into force of the County of Cumberland Planning Scheme Ordinance (the Ordinance).

5 On 14 September 1953 the then owner of the Hotel, Tooth & Co Ltd (Tooths), by its solicitor lodged with the Licensing Court the following application dated 9 September 1953:

“ APPLICATION TO MAKE MATERIAL ALTERATIONS
TO LICENSED PREMISES
TOOTH & CO. LIMITED the owner of licensed premises known as NORTH ANNANDALE HOTEL ANNANDALE in the State of New South Wales being desirous of making material alterations to such licensed premises HEREBY MAKES APPLICATION for permission to make material alterations thereto by using as a beer garden that area as is shown edged red on the plan lodged herewith. …”

6 The plan referred to in the application was dated 2 September 1953 and is the plan referred to in the declaration sought by the appellants and referred to at [2] above (the Plan). The Plan depicts the ground floor of the building (the hotel building) then erected on the hotel land and which occupied approximately 80% of that land. The proposed beer garden, which fronted Booth Street, comprised the area between the eastern end of the hotel building and the eastern boundary of the hotel land. On the Plan the word “yard” has been crossed through and the words “proposed beer garden” inserted.

7 On 14 September 1953 the Officer in Charge of Police of No 2 Division sent a memorandum to the Metropolitan Licensing Inspector, the relevant parts of which were as follows:

“SUBJECT: Application by Tooth & Co. Ltd., owners, to make material alterations to the “North Annandale” Hotel, 105-107 Johnston Street, Annandale.

I have to report that the attached is an application by Tooth & Co. Ltd., owners, to make material alterations to the licensed premises known as the “North Annandale” Hotel, and situate[d] at 105-107 Johnston Street, Annandale.”

8 On the following day, 15 September 1953, the Metropolitan Licensing Inspector reported to the Clerk of the Licensing Court of the Metropolitan Licensing District that he offered no objection to the granting of the application. His memorandum to the Clerk commenced with the following paragraph:

“The proposed alterations consist of converting a yard at the rear of the licensed premises into a beer garden by providing tables and chairs to accommodate approximately 50 persons and install a mobile Temprite beer cooler under an awning within that area.”

9 The matter came before the Licensing Magistrate on what appears to be 15 September 1953. The formal orders made by his Worship were as follows:

“APPLICATION GRANTED.
ONE WEEK ALLOWED TO COMPLETE.
ADDITIONAL BAR PERMIT GRANTED.
ESTIMATED COST £500.”

10 It would appear from other documents that were tendered before the primary judge that the work was duly carried out within the time specified in the Magistrate’s order.

11 The hotel land was zoned “Living Area” under the Ordinance. As such its use for the purposes of a hotel was permissible with consent. By letter dated 27 November 1953, Tooths wrote to the Council listing some 15 of its hotels including the North Annandale Hotel. The letter relevantly continued:

“We desire to apply formally for your Council’s consent pursuant to the County of Cumberland Planning Scheme Ordinance, to the following:
1. The retention of the existing building on the subject land.
2. The continuance of the existing use as a Hotel, licensed under the Liquor Act of the subject land, and buildings.
3. The rebuilding, alteration, enlargement, extension, or addition by erection of new buildings, of the existing buildings upon the subject land.”

It was not in contest that this application for the Council’s consent related to each of the hotels previously listed in the letter.

12 The relevant provision pursuant to which the Council’s consent was sought in the letter of 27 November 1953 was clause 34(1) of the Ordinance which provided as follows:

“If any existing building or existing work is such that had it been erected or carried out after the appointed day its erection or carrying out would have been permissible with the consent of the responsible authority, or if an existing use of an existing building or existing work would have been permissible with such consent had the building been erected or the work carried out after that date, o[r] if an existing use of land is such that if it had been commenced after that date it would have been permissible with the consent of the responsible authority, the owner or occupier of or any person having an estate or interest in, the building or work or land may apply to the responsible authority for its consent to the retention of the building or work or to the continuance of the existing use of the building , work or land , as the case may be.” (Emphasis added)

13 The terms “existing use” and “existing building” were defined in clause 3 of the Ordinance as follows:

“ ‘Existing building’ and ‘existing work’ mean respectively a building or work erected, constructed or carried out before the appointed day, and a building or work begun before, but completed after, the appointed day.
‘Existing use’ means a use of a building, work or land for the purpose for which it was used immediately before the appointed day’. “

14 Tooths’ application to the Council was the subject of its planning officer’s report which recommended that consent under clause 34(1) of the Ordinance be granted for the continuance of the existing use as a hotel of the nominated premises which included the Hotel. That report was referred to in Minute No. 4673 of the meeting of the Council held on 9 December 1953. That minute was relevantly in the following terms:

“(4) Consent be granted under clause 34 of the County of Cumberland Planning Scheme Ordinance to the continuance of the existing use of the following buildings and land as hotel premises:
…
North Annandale Hotel, 105 Johnston St., Annandale.”

15 The consent so granted was conveyed to Tooths by the Council in a letter dated 14 December 1953 which relevantly stated:

“I refer to your letter of 27 ^th November 1953 wherein you make application for consent under clause 34 of the County of Cumberland Planning Scheme Ordinance to the continuance of the existing use of the following buildings and land as hotel premises: “


There then followed a list of those hotels referred to in the Council’s minute including “ North Annandale Hotel, 105 Johnston Street, Annandale ”. The letter concluded by stating that in reply to Tooths’ letter “ the Council has now granted the necessary permission ” (the 1953 consent).

The primary judge’s relevant findings of fact

16 At [12] his Honour found that the evidence supported the conclusion that immediately before the appointed day in 1951, the existing use of the relevant area at the rear of the hotel land was as a yard in connection only with the use of that part of the Hotel where alcohol was not sold to customers.

17 After distinguishing between that part of the hotel building used for the sale of liquor and that part that was not so used (such as the bedroom accommodation and offices), his Honour (at [18]) reiterated that

“[t]he existing use of the subject premises immediately before the appointed day in 1951 was for a hotel which, unsurprisingly, comprised those two distinct parts. The rear yard, bedrooms and bathrooms were in the part where alcohol was not sold to customers. The 1953 consent should be construed with this reality firmly in mind.”


His Honour’s reference to “ the subject premises ” I take to be a reference to the hotel land.

The Council’s challenge to the finding that the yard area was used for the purposes of the hotel in 1951

18 In its Notice of Contention filed in Court at the hearing of the appeal (without objection), the Council sought to uphold his Honour’s decision to refuse the appellant’s declaration upon the basis that there was no evidence that the area described in the Amended Summons as the “outdoor beer garden on the plan dated 2 September 1953” was used for the purposes of a hotel on the relevant date, namely, 27 June 1951. As I have indicated, the primary judge considered that it was used as part of the Hotel but not where alcohol was sold to customers.

19 In support of this submission the Council contended that the area referred to as a yard on the Plan was not part of the licensed premises and, therefore, his Honour was in error in finding that it was used as part of the Hotel. If this be correct, then there could not have been any existing use of the yard area for the purpose of a (licensed) hotel as at the appointed day. Subject to what I say at [34]-[37] below, this does not appear to have been a point that was actively taken before the primary judge as there is no reference in his Honour’s judgment to the issue.

20 In order to understand the Council’s contention it is necessary to refer to the relevant provisions of the Liquor Act 1912 (the 1912 Act) as in force at September 1953.

21 The expression “Licensed premises” was defined in s 3 of the 1912 Act to mean premises in respect of which a licence granted under that Act was in force. Section 15, which related to publicans’ licences, was in the following terms:

“15. All publicans’ licences issued after the commencement of this Act may be in the form prescribed, and every such licence shall authorise the licensee therein named to sell and dispose of liquor, but … only on the premises therein specified … “

22 By virtue of s 25, before a publican’s licence could be granted for any house, it had to contain accommodation for the public as therein specified. His Honour referred to that accommodation in the passage from his judgment which I have recorded at [17] above.

23 Schedule 1 to the 1912 Act contained the prescribed form of a publican’s licence. It relevantly was in the following form:

“WHEREAS on the …………….day of …………………………..19.., the Licensing Court for the ……………………………Licensing District in the State of New South Wales granted the application of …………………………………for a Publican’s Licence for the premises known as the ……………………………situated at …………………………………………..in the said District … Now, therefore, I, the Officer duly authorised on that behalf to hereby issue to the said applicant this licence to sell and dispose of liquor on the said premises but not elsewhere, and subject to the provisions of the said Act … “

24 It is apparent from this form that a publican’s licence was issued with respect to premises to be known by a particular name and situated at a particular address. In the present case, it is clear from the evidence that a publican’s licence was held as at the appointed day for the premises known as the North Annandale Hotel situated at “105 Johnston Street, Annandale”. It would also be reasonable to infer that that licence was in the prescribed form. Prima facie, therefore, the whole of the hotel land was the subject of that licence as at the appointed day.

25 Tooths’ application referred to at [5] above was made pursuant to s 40(2) of the 1912 Act which as at September 1953 relevantly provided as follows:

“(2)(a) In this subsection ‘licensed premises’ means premises in respect of which a publican’s licence … is held.
(b) Any owner or licensee of licensed premises, who is desirous of making any material alterations or additions thereto, shall apply to the court for authority so to do, and shall furnish the court with a properly drawn plan showing the character of the alterations or additions proposed to be made.”

26 In my view the reference in s (2)(b) to the making of material alterations or additions “thereto” is a reference to the “licensed premises” in respect of which the owner or licensee is desirous of making the relevant alterations or additions.

27 It is important to observe that at that time the Licensing Court only had power to authorise the making of material alterations or additions to “licensed premises”. The subsection did not extend to an application to increase or decrease the area of licensed premises, a power which was inserted into s 40(2)(b) by the Liquor (Amendment) Act 1954 when the words “or of increasing or decreasing the area of the licensed premises” were inserted after the word “thereto” in sub-paragraph (b) and also after the word “additions” where secondly occurring in that sub-paragraph.

28 This position is to be contrasted with ss 40A (1)(a) and (2)(a) of the 1912 Act which provided as follows:

“(1)(a) Upon proof that public convenience requires additional accommodation in … any premises in respect of which a publican’s licence is held, the licensing court may order the owner of the premises to carry out, within a reasonable time to be set out in the order, the work specified in the order. …
(2) Where an order has been made under the last preceding subsection –
(a) the court may if it thinks fit authorise an increase or decrease of the area licensed, and thereafter renew the licence for the premises with the area so increased or decreased; “

29 The expression “additional accommodation” was defined in s 40A(7) to include, relevantly, the provision of facilities for the consumption of liquor at tables in gardens or in the open air (which would include a beer garden).

30 In the present case, on the evidence before the primary judge, the Licensing Court gave authority pursuant to s 40(2)(b) of the 1912 Act for Tooths to make material alterations or additions to the existing licensed premises by converting the rear yard into a beer garden in which liquor was permitted to be supplied. There was no application to increase the area licensed because none was necessary. The application itself was for material alterations to the licensed premises known as the North Annandale Hotel, Annandale and the report to the Metropolitan Licensing Inspector referred to at [7] above was expressed to relate to material alterations to

“the licensed premises known as the ‘North Annandale’ Hotel and situate[d] at 105-107 Johnston Street, Annandale”.

31 The Metropolitan Licensing Inspector’s memorandum referred to at [8] above also refers to the conversion of the yard at the rear “of the licensed premises”. The Licensing Magistrate could only have granted the application if it related to part of the licensed premises. His order (extracted at [9] above) accords with the then limits on his power under s 40(2) for had it been otherwise he would have had to, but did not, order an increase in the area licensed to enable liquor to be lawfully supplied in the proposed beer garden.

32 It is not entirely clear whether the Council intended to make an alternative submission that even if the rear yard was part of the licensed premises in 1951, there was insufficient evidence to support the primary judge’s finding that the use of the yard at that time was for a hotel. If that submission was made, I would reject it. Once it is accepted that the rear yard formed part of the licensed premises, the obvious inference is that it was used in a manner, not precisely identifiable nearly 60 years later, ancillary to the use of the premises as a hotel. The plan prepared in connection with the 1953 application to the Licensing Court is consistent with the rear yard area being used for the purposes of the hotel, for example as a storage area or a recreation area for staff (whose accommodation was adjacent to the yard).

33 It follows from the foregoing that I reject the Council’s submission in its Notice of Contention that there was no evidence that, on the appointed day, the yard was used for the purposes of a hotel.

34 The Council nevertheless submitted that before the primary judge the appellants had conceded that the yard did not as at the appointed day form part of the licensed premises. At trial, reliance was placed upon paragraph 11 of the appellants’ written Outline of Submissions which provided:

“The outdoor area has been part of the licensed premises pursuant to the Liquor Acts of 1912, 1982 and 2007 since 15 September 1953. Although used for the purposes of the hotel prior to that date, because the area was not accessible to the public, it was not necessary that it be part of the licensed premises (s15 Liquor Act 1912).”

35 In my opinion the Council’s submission may have had force had the word “only” been inserted in the first sentence of the above submission after the word “has” in the first line. Further, whether or not it was necessary that the relevant area be part of the licensed premises was not to the point: certainly, it was not suggested that it could not form part of such premises as, in my view, it did.

36 As I have already observed (at [19] above), it does not appear that the issue of whether one could infer from the evidence that the yard formed part of the licensed premises with respect to the Hotel as at the appointed day was considered to be a relevant issue in the court below. Rather, and this is borne out by the Council’s written Outline of Submissions before the primary judge, it argued that the 1953 consent applied only to the Hotel (and, in particular, the hotel building) in its configuration as at the appointed day; that there was no evidence as to the use of the yard area as at that time and, in particular, no evidence that it was used for the purposes of the Hotel or at all.

37 However, it was submitted in the Council’s Outline that the evidence disclosed that the yard area was not used for the sale or consumption of liquor: nor did it form part of the land licensed to provide such liquor. Yet, the Council’s Outline, which was dated three days after the appellants’ Outline, did not refer to or rely upon paragraph 11 of the appellants’ Outline as containing any relevant concession; nor did either party seek to make good the proposition that the yard area did not form part of the licensed premises as at 1951 by examination of the evidence before the primary judge in the context of the then relevant provisions of the 1912 Act.

38 Once that examination is undertaken, as I have attempted to do, in my opinion the only inference open is that as at the appointed day the whole of the hotel land, including the rear yard, formed part of the area the subject of a publican’s licence issued pursuant to s 15 of the 1912 Act.

39 The appellant’s written submission to his Honour that its inclusion as part of the licensed premises was not necessary did not, in my view, constitute a concession that it only became part of the premises specified in the publican’s licence for the Hotel as and from 15 September 1953. On the evidence this is simply incorrect.

The primary judge’s reasons for refusing the relief claimed

40 At [10] the primary judge noted that the Council submitted that:

(a) the appellants had failed to discharge the onus of proving what the existing use of the area comprising the rear yard was immediately before the appointed day in 1951; and

(b) the proper construction of the 1953 consent did not permit the use of the rear yard as a beer garden.

His Honour rejected the first submission but upheld the second.

41 At [14] his Honour stated the issue arising from this second submission in the following terms:

“The second issue is whether the terms of the 1953 consent permits the use of the rear yard as a beer garden. The applicants submit that the 1953 consent was for the use of the building and land for the purposes of a hotel without any limitation as to the nature or location of any part of that use. They submit that the consent is to be liberally interpreted and that there is no basis upon which a limitation can be implied to suggest that the rear yard cannot be used as a beer garden when that activity is for the purpose of a hotel.”

42 At [15] and [16] his Honour referred to the relevant authorities with respect to the construction of the language of historical consents with particular reference to [37] to [41] of the judgment of Mason P, with whom Stein and Giles JJA agreed, in House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498; (2000) 106 LGERA 440. I do not find it necessary to repeat those paragraphs of the President’s judgment.

43 However, it is to be noted that the President, having remarked at [37] that such a consent must speak according to its written terms, construed in context and having regard to its enduring function, then referred with approval to the observation of Kirby P in North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd (1989) 16 NSWLR 50 at 59 where his Honour, when referring to the definition of the expression “existing use”, stated the following proposition:

“Nevertheless, the general approach to be taken is one of construing the ‘use’ broadly. It is to be construed liberally such that confining the user to precise activity is not required. What is required is the determination of the appropriate genus which best describes the activities in question.”

44 At [16] the primary judge referred to the statement of Meagher JA, with whom Samuels and Handley JJA agreed, in Steedman v Baulkham Hills Shire Council (No 1) (1991) 87 LGERA 26 at 27 where his Honour observed

“that land can be used for a lawful purpose without there being an actual physical use of it; that if the land is rightly regarded as a unit and it is found that part of its area was physically used for the purpose in question it follows that the land was used for that purpose.”

45 To the authorities referred to by the primary judge one can add the observations of Bignold J in South Sydney City Council v C Maloney Pty Ltd (1996) 89 LGERA 324, a decision of some relevance to the present case as it also involved the issue of existing use rights with respect to a hotel. After referring to a number of authorities including Boyts Radio & Electrical, Bignold J remarked (at 328-339):

“Another legal principle relevant to the application of the ancillary use doctrine must be drawn out. It was part of the Applicant's case that the Court should by some means contrive to separate, for the purposes of analysis, the ground floor, from the other seven floors of the hotel and the operations carried on throughout those other floors. A more extreme variant submission was that it was legitimate to focus attention on the pool tables in total isolation. The result of any such conceptual division would be, of course, that the pool/gaming activities on the western part of the ground floor would take on a significance over and above their true importance in the overall scheme of the hotel's operation, which true significance is only revealed by the hotel being considered as one entity. This suggested mode of analysis ignores the legal reality that the existing use right to use the premises as a hotel attaches not simply to an arbitrarily selected segment of the building, but to the building and parcel of land as a whole. The planning unit to which these existing use rights are appurtenant is the entirety of the site. This is evident from the facts that the whole building has been, and is, utilised to provide hotel facilities including accommodation, bars, gaming areas, drinking areas and bistro and dining facilities. The concept of the planning unit is well established in planning law and of particular importance in ascertaining the true geographical or spatial ambit of existing use entitlements (see Steedman v Baulkham Hills Shire Council (No 1) (1991) 87 LGRA 26 per Meagher JA; … ). Accordingly, I hold that the relevant purpose, which must be construed in this case is that pertaining to the function of the entire site , namely the operation and conduct of a hotel facility or enterprise .”

46 After referring to statements from the judgment of McHugh JA in Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGERA 305 at 310 (which were also cited by Mason P in House of Peace at [40]) and to what his Honour referred to as the locus classicus in this area of the law being the judgment of Kitto J in Shire of Perth v O’Keefe (1964) 110 CLR 529 at 535, Bignold J concluded (at 329) that the decisions indicated that an illiberal and pedantic approach to categorisation was not to be preferred but rather that the purpose should be construed or described in a practical and commonsense manner. This is precisely what, in my view, the Council did in the present case in the 1953 consent which, relevantly, consented to the retention of not only the hotel building but also the hotel land “as hotel premises”.

47 As I have indicated, the primary judge, having noted that the purpose for which the 1953 consent was granted was that of town planning, then observed that the parts of the “hotel” used for the sale of liquor would have a very different impact on the neighbourhood than that part of the “hotel” not so used. In his Honour’s opinion the relevant existing use of the buildings and land known as the North Annandale Hotel was confined only to so much thereof as was, at the appointed day, used for the sale of liquor.

48 His Honour thus concluded (at [21]) that the 1953 consent only permitted continuance of the use of so much of the Hotel as was actually used for that purpose as at the appointed day. At that time, the rear yard, the bedrooms and bathrooms and offices were not used for or in connection with the sale of liquor. Accordingly, the Council could not have intended to grant consent for those areas to be used for the sale of alcohol as a consequence whereof the 1953 consent should not be construed as permitting the rear yard to be used for the purpose of a beer garden.

The submissions of the parties and their resolution

49 In essence, the appellants’ submission was that the 1953 consent was in response to an application for the continuance of the existing use (as a Hotel licensed under the Liquor Act”) of the land and buildings at 105 Johnston Street, Annandale. According to its terms, the consent expressly extended to the land at that address. Further, it in terms permitted the continuance of the existing use of that land “as hotel premises”. The language of the consent did not purport to distinguish between those parts of the hotel land and hotel buildings which were used to sell and supply liquor as opposed to those parts ancillary to that use, such as the internal private offices, the bedroom accommodation, the publican’s accommodation and the rear yard. Whatever that yard may have been used for as at the appointed day, it formed part of the hotel premises and was thus encompassed in the 1953 consent.

50 The appellants therefore submitted that his Honour erred in the following respects:

(a) rather than asking whether the 1953 consent authorising use of the yard “ as hotel premises ” extended to its use as a beer garden, he imposed a gloss on the words of the consent, confining the land to which the consent referred to only those parts associated with the sale of liquor;

(b) he failed to appreciate that as a matter of ordinary terminology, the use of the yard as a beer garden was within the use of the hotel land “ as hotel premises ”;

(c) rather than construing the 1953 consent broadly and liberally, he erroneously identified a precise use much narrower than that warranted by the literal terms of the consent; and

(d) he gave no consideration to the relevant provisions of the 1912 Act and to the fact that a publican’s licence extended beyond that part of the licensed premises which were in fact used for the sale of liquor: in fact, there was a statutory requirement for licensed premises the subject of a publican’s licence to contain, amongst other things, bedroom accommodation which could not be utilised for the purpose of the sale of liquor but was nevertheless part of the area licensed.

51 In this context reference was made to s 64 of the 1912 Act which provided that no licensee shall sell or supply liquor in more than one bar room in or upon the licensed premises unless he has obtained the permission of the Licensing Court so to do. In this respect it was acknowledged in the transcript of the proceedings before the Licensing Magistrate that the s 40(2) application by Tooths for the proposed beer garden also sought approval for an additional bar and that that permission was in fact granted: see the Magistrate’s order recorded at [9] above.

52 The Council’s written submissions did not in terms seek to support the primary judge’s reasoning. At paragraph 26 it was submitted that the preceding paragraphs of the submission had arrived at “the same destination as Biscoe J by a different route, which does not involve breaking up the hotel uses into different components.” That route sought to make good the proposition that the 1953 consent did not extend to the alterations and additions which created the beer garden and which were the subject of the Licensing Court’s approval of 15 September 1953. The Council submitted that those alterations and additions could only have been approved pursuant to clause 35 of the Ordinance and although such approval had been sought by Tooths in paragraph 3 of its letter to the Council dated 27 November 1953, that consent was not forthcoming.

53 In my opinion the Council’s written submissions (which differ from the case it put at trial) are beside the point and failed to grapple with the real issues to be determined on the appeal. As the appellants contended in their written submissions in reply, this is because the Council’s submissions, even if accepted, established no more than that the physical works carried out in 1953 to create the beer garden were unauthorised. However, the beer garden use ceased many years ago. To claim now that those works were unauthorised says nothing as to the lawful use of the rear yard as part of the premises for the purpose of a hotel or licensed hotel.

54 I therefore agree with the appellants’ submission that there is a textual distinction between clause 34 of the Ordinance which addresses the retention of existing uses of land and/or buildings and clause 35 which addresses the alterations, enlargements, extensions or additions to or of existing buildings by the erection of new buildings. Clause 34 may be engaged independently of clause 35. Tooths’ application sought to engage both but the Council only responded to the former. In doing so, the Council consented to the retention of the hotel land as well as the hotel building as hotel premises.

55 In oral submissions the Council sought to meet this problem by filing its Notice of Contention and submitting that the yard was not part of the licensed premises as at the appointed day. For the reasons I have indicated, in my opinion that submission should be rejected.

56 Whether or not the relevant part of the letter of 27 November 1953 was incorporated into the 1953 consent, it is apparent that what the Council consented to was the retention of the use not only of the hotel building but also of the hotel land at 105 Johnston Street, Annandale “as hotel premises”. That description or genus applied to the whole of the hotel land. In my opinion, his Honour was in error in construing the 1953 consent as only applying to so much of that land as was actually used for the sale and supply of liquor. There was no warrant for imposing that gloss on the clear text of the consent. In my opinion, it extended to the whole of the hotel land upon which the hotel building was erected and permitted the use of the whole of that land as hotel premises. Accordingly, the submission of the Council (at paragraph 10 of its written submissions) that it did not consent “to the use of the Hotel and its land as hotel premises simpliciter” should be rejected.

57 Further, in my opinion, his Honour was correct to find that the yard was in fact part of the hotel premises as at the appointed day. Although it constituted part of the hotel land where liquor was not sold to customers, nevertheless its use was at least ancillary to the use of that part of the hotel building where liquor was so sold. Therefore, it constituted part of the “hotel premises” and, in my opinion, part of the premises the subject of a publican’s licence granted under the 1912 Act.

Conclusion

58 In my opinion the primary judge erred in the manner in which he construed the 1953 consent. It should be construed as permitting the rear yard shown on the Plan to be used for the purposes of the Hotel. Those purposes include its use as a beer garden. It follows that his Honour ought to have made an appropriate declaration to that effect.

59 However, and this was common ground, the 1953 consent did not authorise the erection of any buildings upon the rear yard. It only authorised its use for the purpose of hotel premises. It was a consent to the use of the land only for that purpose. Given that the definition of “development” in s 4(1) of the Environmental Planning and Assessment Act 1979 includes both “the use of land” as well as “the erection of a building” and that the word “building” includes any structure or part thereof, it follows that to the extent to which the appellants wish to erect structures upon the yard, it will need to obtain development consent therefor.

60 Accordingly, I would propose the following orders:

(a) Appeal allowed;

(b) Set aside the orders made by Biscoe J on 10 August 2009;

(c) Declare that the appellants are entitled to use the area described as the “ outdoor beer garden ” on the plan dated 2 September 1953 for the purposes of a licensed hotel including as a beer garden provided that this declaration does not extend to the erection of any building (as defined in s 4(1) of the Environmental Planning and Assessment Act 1979) upon the said area without first obtaining development consent therefor;

(d) The respondent to pay the appellants’ costs of the proceedings in the Land and Environment Court and of the appeal.

61 CAMPBELL JA: I agree with Tobias JA.

62 SACKVILLE AJA: I agree with Tobias JA.

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