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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NSWCA 35
Decision Date: 17 March 2010

CaseChat Overview and Summary

Kayora Pty Ltd (the appellant) sought to use the rear yard of its hotel premises as a beer garden. Leichhardt Council (the respondent) contended that this use was not permitted under the existing use rights for the hotel. The matter came before the Supreme Court of New South Wales, Court of Appeal.

The central legal issue before the Court of Appeal was whether the existing use rights for the hotel premises extended to the use of the rear yard as a beer garden. This required the Court to consider the characterisation of the use of the rear yard and whether it was ancillary to and part of the hotel's existing use.

The Court of Appeal reasoned that the consent granted for the continuance of the existing use as hotel premises encompassed all activities that were reasonably incidental to and ancillary to the operation of a hotel. The Court found that the use of the rear yard as a beer garden was such an activity, particularly given the historical use of the area as depicted on a plan dated 2 September 1953. The Court applied the principle that existing use rights should be interpreted broadly to reflect the reality of how such premises are operated.

The Court of Appeal allowed the appeal, set aside the previous orders, and declared that the appellant was entitled to use the area as an outdoor beer garden for the purposes of a licensed hotel, subject to the condition that no building be erected without development consent. The respondent was ordered to pay the appellant's costs.

Orders

Orders of the court

(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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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