Kayora Pty Ltd v Leichhardt Council - [2009] NSWLEC 126

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 Limited
SECOND APPLICANT:
North Annandale Hotel Pty Limited
RESPONDENT:
Leichhardt Council

FILE 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 109B

CASES 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 184

DATES OF HEARING: 27 July 2009

DATE OF JUDGMENT:
10 August 2009

LEGAL 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

KAYORA PTY LIMITED v LEICHHARDT COUNCIL

JUDGMENT

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:

“ 109B Saving of effect of existing consents

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…

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: [2009] NSWLEC 126
Decision Date: 10 August 2009

CaseChat Overview and Summary

The case before the court was an application by Kayora Pty Ltd and North Annandale Hotel Pty Ltd, the owners of the North Annandale Hotel, seeking to determine whether they could use the rear yard of the hotel as a beer garden without further development consent. The respondent, Leichhardt Council, argued that the applicants were not entitled to use the rear yard as a beer garden. The applicants argued that a consent granted by the council in 1953 allowed them to use the rear yard as a beer garden under s 109B of the Environmental Planning and Assessment Act 1979.

The legal issue the court had to decide was whether the 1953 consent granted by the council permitted the use of the rear yard as a beer garden. The court had to interpret the terms of the 1953 consent in light of the existing use of the hotel immediately before the appointed day in 1951. The court also had to consider the purpose of the 1953 consent, which was a town planning purpose, and the impact of the use on the neighbourhood.

The court rejected the applicants' argument that the 1953 consent permitted the use of the rear yard as a beer garden. The court held that the evidence supported 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. The court also held that the 1953 consent should be construed in its town planning context and that the council intended 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.

The court dismissed the summons and ordered that the applicants pay the respondent's costs. The exhibits may be returned.

Orders