Legman Pty Limited v Council of the City of Sydney (No 2)

[2005] NSWLEC 752

Land and Environment Court

of New South Wales

CITATION:

Legman Pty Limited v Council of the City of Sydney (No 2) [2005] NSWLEC 752

PARTIES:

APPLICANT
Legman Pty Limited

RESPONDENT
Council of the City of Sydney

FILE NUMBER(S):

10779 of 2005

CORAM:

Moore C

KEY ISSUES:

Development Application :-
Settlement of conditions
.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 s80(3)
.

CASES CITED:

Legman Pty Limited v Council of the City of Sydney [2005] NSWLEC 640;
.

DATES OF HEARING:

8 December 2005

EX TEMPORE JUDGMENT DATE:

12/08/2005

LEGAL REPRESENTATIVES:

APPLICANT
Ms J Hughes, solicitor
Phillips Fox

RESPONDENT
Ms P Adraskelas, solicitor
Maddocks

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Moore C

8 December 2005

05/10779 Legman Pty Limited v Sydney City Council

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

JUDGMENT

1 COMMISSIONER: This is a supplementary decision to my decision in Legman Pty Limited v Council of the City of Sydney [2005] NSWLEC 640, which concerned an application for extended trading hours for a nightclub known as “Gas” in the Bohem Hotel at 477 Pitt Street, Sydney.

2 I gave that decision on the merits in the matter on 11 November 2005. As part of that decision I concluded that,

“I should uphold the appeal but that there should be a further trial period during which Mr Cooke and those associated with him will have the opportunity to demonstrate that the police concerns can be resolved. I am only prepared to do so if the contract for sale to Moshpit is completed thus severing the link sufficiently though I accept not completely with the past management. The deferred condition of consent that the council be satisfied that the sale has been effected prior to permitted trading on the extended trial hours is therefore required.”

3 During the course of a hearing this morning concerning a number of conditions that were not agreed to between the parties, the terms of the elements of a deferred commencement condition to give effect to my views concerning the sale of business were canvassed.

4 The council proposed three elements in that deferred commencement condition.

5 These were:

1. Evidencing of the completed sale from Legman Pty Limited (Legman) to Moshpit Pty Limited (Moshpit);
2. Evidencing of a copy of the transfer of the lease from Legman to Moshpit; and
3. Furnishing the council with a copy of a provisional hotelier’s licence issued by the Licensing Court to Mr Cooke to demonstrate that he had become, at least on that provisional basis, the licensee of the premises.

6 A number of practical matters were put by Ms Hughes, solicitor for the applicant, with respect to the ability of those conditions being satisfied.

7 Two of them have been resolved this morning by agreement between the legal representatives of the parties.

8 First, the transfer of the lease, it being a lease from an institutional investment company, has been agreed to be subject to a provision that a copy of the stamped transferred lease is to be provided to the council by 12 January and, if not so provided, the consent on the extended trading hours would be suspended and, subsequently, if the lease were not subsequently provided by 27 January 2006, the consent would lapse.

9 That condition has been agreed to by the applicant and satisfies the premises control issue associated with the transfer of the business.

10 The applicant has also agreed, as has the council, to a condition of consent that Mr Cooke provide the council, by 14 December, with a copy of a provisional licence in his name for the premises and that in the absence of such provisional licence being provided to the council by that date the consent for the further trial period would be suspended until such provisional licence was provided to the council.

11 I accept that those two substantive conditions deal appropriately with the matters arising from and covered by them in the context of the element of my decision of 11 November to which I have referred.

12 The matter that remains in contention is whether it is sufficient proof of sale for the provision to the council of an executed copy of the agreement of sale from Legman to Moshpit of the business absent formal completion of that sale.

13 Ms Hughes has put to me that the applicant (or, effectively in this case, the purchaser, Moshpit) will not be able to raise the finance to complete the sale unless the trial period consent is alive.

14 If the trial period consent does not become alive, she has put to me (and I accept) that the viability of the business is significantly threatened because it will not be able to trade during the Christmas to New Year period.

15 It is clearly undesirable for a decision of this Court, in effect (although by no ill will of either party) to be frustrated and to be rendered a nullity if there is an alternative path that makes that which was intended achieved.

16 In lieu of the requirement that the sale be completed, I accepted the wording proposed by the respondent, that is, that the consent will not commence as a consequence of a deferred commencement condition pursuant to s 80(3) of the Environmental Planning and Assessment Act 1979 until a copy of an executed agreement for sale stamped by the Office of State Revenue between Legman and Moshpit is provided to the council.

17 That is the single factual element that was required to be satisfied in the proposed version of the draft deferred commencement condition dealing with that topic provided by the respondent to me this morning and discussed in those earlier proceedings.

18 The sentence, which arose out of that draft and which causes this difficulty in the proceedings is one, which would say that the sale has been completed, although the council was accepting that the executed copy of the agreement for sale should be taken as evidence of that.

19 As a matter of fact, an executed copy of the agreement for sale is not evidence of completion and I am satisfied that, given that there are other hurdles to be overcome by Mr Cooke and those associated with him, that the version of the draft deferred commencement condition, I have proposed to the parties is under all circumstances a satisfactory one.

20 Therefore the condition should read as follows.

In accordance with s 83 of the Environmental Planning and Assessment Act 1979, this consent will not operate until the applicant has provided the council with an executed copy of the agreement for sale of the business from Legman Pty Limited to Moshpit Pty Limited duly stamped by the Office of State Revenue, New South Wales Treasury. The date of receipt by the council of this agreement for sale from the applicant will be the effective date for the commencement of this consent in terms set out by Commissioner Moore in Land and Environment Court proceedings numbers 10779 of 2005.

21 I would note, however, if for some reason evidence of completion of the sale is not subsequently provided to the council, that would be a weighty and significant matter for the council to have regard to on any application by Mr Cooke and those associated with him to turn the trial period into a permanent arrangement, as it is a significant matter going to the bona fides of Moshpit and those associated with it.

22 Having reached that conclusion I publish to the parties a copy of the sealed orders in the terms that I have outlined.

Tim Moore

Commissioner of the Court