Kayora Pty Ltd v Leichhardt Council
[2009] NSWLEC 126
•10 August 2009
Set aside by Appeal: [2010] NSWCA 35
Land and Environment Court
of New South Wales
CITATION: Kayora Pty Ltd v Leichhardt Council [2009] NSWLEC 126 PARTIES: FIRST APPLICANT:
Kayora Pty LimitedSECOND APPLICANT:
RESPONDENT:
North Annandale Hotel Pty Limited
Leichhardt CouncilFILE NUMBER(S): 41290 of 2008 CORAM: Biscoe J KEY ISSUES: DEVELOPMENT CONSENT :- construction - whether permitted use of rear yard of hotel as a beer garden LEGISLATION CITED: County of Cumberland Planning Scheme Ordinance, cll 3, 34(1)
Environmental Planning and Assessment Act 1979, s 109BCASES CITED: House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44, (2000) 48 NSWLR 498
Reading Properties Pty Ltd v Auburn Council [2007] NSWLEC 186, (2007) 158 LGERA 116
Steedman v Baulkham Hills Shire Council (1991) 87 LGERA 26
Warlam Pty Ltd v Marrickville Council [2009] NSWLEC 23, (2009) 165 LGERA 184DATES OF HEARING: 27 July 2009
DATE OF JUDGMENT:
10 August 2009LEGAL REPRESENTATIVES: APPLICANTS:
Mr P. Clay
SOLICITORS
Back Schwartz Vaughan
RESPONDENT:
Ms S. Duggan
SOLICITORS
Pikes Lawyers
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
BISCOE J
10 August 2009
41290 of 2008
JUDGMENTKAYORA PTY LIMITED v LEICHHARDT COUNCIL
1 HIS HONOUR: The applicants claim that they are entitled to use the rear yard of the North Annandale Hotel as a beer garden without any further development consent. The first applicant, Kayora Pty Ltd, is the owner of the hotel. The second applicant, North Annandale Hotel Pty Ltd, is the owner of the business carried on at the hotel. The respondent is Leichhardt Council.
2 The applicants submit and the council disputes that a consent granted by the council in 1953 was a consent that permits use of the rear yard as a beer garden. If the applicants are correct, then under s 109B of the Environmental Planning and Assessment Act 1979 the applicants are entitled to use the rear yard as a beer garden without further development consent.
3 Section 109B provides:
(1) Nothing in an environmental planning instrument prohibits, or requires a further development consent to authorise, the carrying out of development in accordance with a consent that has been granted and is in force.“ 109B Saving of effect of existing consents
(2) This section:
- (a) applies to consents lawfully granted before or after the commencement of this Act, and
(b) does not prevent the lapsing, revocation or modification, in accordance with this Act, of a consent, and
(c) has effect despite anything to the contrary in section 107 or 109.”
4 The 1953 consent was granted pursuant to cl 34(1) of the County of Cumberland Planning Scheme Ordinance, which provided:
- “34(1) If an 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, of 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.”
5 The terms “existing use” and “existing building” were defined in cl 3 as follows:
‘ Existing use ’ means a use of a building, work or land for the purpose for which it was used immediately before the appointed day.”“ ’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.
6 Thus, the council only had power to grant consent to the continuation of a use of a building or land for the purpose for which it was used immediately before “the appointed day” under the Ordinance, which was 27 June 1951.
7 On 27 November 1953 the then owner of the hotel made an application to the council in the following terms:
- “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.”
8 On 9 December 1953 the council resolved that:
- “(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 Street, Annandale.”…
9 The council communicated that decision to the then owner by letter dated 14 December 1953.
10 The council submits that:
(a) the applicants have failed to discharge their onus of proving what the existing use of the area comprising rear yard was immediately before the appointed day in 1951;
(b) the proper construction of the 1953 consent does not permit the use of the rear yard as a beer garden.
11 I reject the first submission and uphold the second submission for the following reasons.
12 As to the first submission, in my view the evidence supports the conclusion that immediately before the appointed day in 1951 the existing use of the relevant rear area was as a yard in connection only with the use of that part of the hotel where alcohol was not sold to customers. That is a reasonable inference from the terms of an application made in September 1953 to the Licensing Court by the then owner of the hotel for permission to convert “the existing yard at the rear of the premises into a beer garden”. The application explained that the establishment of the beer garden was for the purpose of providing better facilities for the existing customers of the hotel and to avoid them causing congestion in passageways of the hotel. An accompanying plan showed the rear yard fenced and separated by staff bedrooms from the part of the premises where alcohol was sold to customers. The evidence indicates that there was residential accommodation on the first floor.
13 I note in passing that the application to the Licensing Court was granted and that for about 20 years thereafter the yard was used as a beer garden. There is no submission that this is relevant to the issues in this case.
14 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.
15 The construction of the language of an historical consent was addressed in House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44, 48 NSWLR 498 at [37] – [41] per Mason P (Stein and Giles JJA agreeing):
“37 How then is the language of an historical consent to be construed? In ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 at 77, Kirby P (with whom Samuels JA and Hunt A-JA agreed) referred to ‘what, objectively determined, it might be said the Council meant by the permission which it gave to the ... predecessor [in title]’. I respectfully agree, but with this emphasis. The search is not for what the Council actually intended or what, if it had been interrogated about various possibilities, it would have said it intended. As an instrument having the characteristics referred to by Else-Mitchell J and Stephen J in the passages cited at [23], it must speak according to its written terms, construed in context but having regard to its enduring function. Cases such as Auburn Municipal Council v Szabo (1971) 67 LGRA 427 expound the textual interpretative principles involved.
39 Drawing upon this and other decisions, Kirby P stated the following three propositions in North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd (at 59):38 Shire of Perth v O'Keefe is the locus classicus in relation to characterising the purposes of an existing use. It has also been applied to the issue of determining the scope of an extant development consent, which is a species of existing use rights: see, eg, ACR Trading; North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd (1989) 16 NSWLR 50. In Shire of Perth , Kitto J (at 535) distinguished between ‘the precise manner of use for [the identified] purpose’ and ‘use generally for that purpose. ... The application of the by-law in a particular case has therefore not to be approached through a meticulous examination of the details of processes or activities ... but by asking what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date’.
- '1. Defining the 'existing use' depends upon a detailed examination of the facts of each case. Inevitably there will be borderline cases where the characterisation of the use which is protected will be controversial and upon which minds may differ.
2. 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.
3. In determining that genus, attention should be focused on the purpose for which the determination is being made. This is a town planning purpose. It therefore considers the use from the perspective of the impact of the use on the neighbourhood. This is because the regulation of the use within the neighbourhood is the general purpose for which planning law is provided.'
40 In Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305 at 310-311, McHugh JA said:These liberal principles apply notwithstanding recognition that
‘neighbourhoods change’ (ibid).
- ‘... a test has been devised which requires the purpose of the use of land to be described only at that level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on at the relevant date. Thus the test is not so narrow that it requires characterisation of purpose in terms of the detailed activities, transactions or processes which have taken place. But it is not so general that the characterisation can embrace activities, transactions or processes which differ in kind from the use which the activities etc as a class have made of the land. ... The foregoing cases were concerned with the activities of a particular business or industry or with activities of a common kind. But I see no reason why the principle upon which those decisions were based is not also applicable to a case where land is used for activities, processes or transactions of widely differing kinds. If the activities, processes or transactions are capable of being treated as all or the majority of the species of a genus, then that genus may properly be regarded as describing the purpose of the use of the land. If they are not, then it may be that the only conclusion is that the land has been used for more than one purpose.’
41 The enduring nature of a development consent encourages a fair but liberal reading of the rights it confers upon a landowner who may spend considerable money in acting upon it and who is likely to wish to sell the land sooner or later.”See also Woollahra Municipal Council v Banool Developments Pty Ltd (1973) 129 CLR 138 at 146, Hudak v Waverley Municipal Council (1990) 70 LGRA 130 at 133 and 135 and Strathfield Municipal Council v Australian Centre for Languages Pty Ltd ( 1991) 74 LGRA 117 at 119.
16 In Steedman v Baulkham Hills Shire Council (1991) 87 LGERA 26 at 27 Meagher JA (Samuels and Handley JJA agreeing) held:
- “It is clear enough that in such a determination regard must be had to the circumstances of the case as they existed at the relevant date, and that at the relevant date (12 July 1946) lot 202 did not exist as a separate parcel of land, it being then but part of the 500 acre area. It is also clear enough, on the authority of these cases, that the land subject to the determination should be capable of identification as far as possible in a way which avoids detailed investigation and complicated disputes of fact; 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; and that if some part of the land was used for mining or extractive purposes, the fact that the balance of the land was held in reserve and intended for future use does not derogate from the fact that in law the whole of the land was used for mining or extractive purposes. It follows, in my view, that it was not only relevant but essential to inquire into the question whether the unit of land of which the modern lot 202 then formed part was at the relevant date used for mining or extractive purposes.”
17 These and other authorities relating to existing uses were reviewed by me in Reading Properties Pty Ltd v Auburn Council [2007] NSWLEC 186, 158 LGERA 116 at [36] – [43] and Warlam Pty Ltd v Marrickville Council [2009] NSWLEC 23, 165 LGERA 184 at [17] - [19].
18 The purpose for which the 1953 consent was granted was a town planning purpose. It is therefore necessary to consider the use from the perspective of the impact of the use on the neighbourhood. The part of a hotel used for the sale of liquor has a very different impact on the neighbourhood than the part of the hotel that is not so used. The 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.
19 The applicant’s construction would mean that every part of the hotel premises, including residential accommodation and the staff bedrooms, could be used for the sale of alcohol to customers. I think that this pays no regard to the reality of the existing use and does not consider the existing use from the town planning perspective of the impact of the use on the neighbourhood.
20 An analogy may be drawn. Assume that the 1953 application and consent were expressed to be for continuation of the use shown on a plan, which showed the rear yard fenced off and separated by bedrooms from the front area where alcohol was sold to customers, with residential accommodation on the first floor. In other words, it showed the existing use. Then, in my opinion, the consent would be construed as a consent to the continuation of the existing use as shown on the plan. I understand the applicants to have conceded that much in argument. I consider that there is no difference in substance between such a case and the present case. The reference in the application and the consent to the “existing” use requires determination of what the existing use was in 1951. That determination shows the same picture as could have been shown on a plan attached to the 1953 application and consent. The words used in the 1953 consent, construed in their town planning context, were sufficient, in my view, to describe that picture.
21 In my opinion, the council intended by its 1953 consent to permit continuance of the use of the hotel as it was actually used immediately before the appointed day in 1951. In fact at that time, the rear yard, the bedrooms and bathrooms were not used for or in connection with the sale of alcohol. The council did not intend to grant consent for those areas to be used for the sale of alcohol. Consequently, the consent should not be construed as permitting the rear yard to be used as a beer garden.
22 For these reasons, the summons is dismissed. The applicants are to pay the respondent’s costs. The exhibits may be returned.
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