Revilla P/L v Sydney CC

[2005] NSWLEC 245

Land and Environment Court

of New South Wales

CITATION:

Revilla P/L v Sydney CC [2005] NSWLEC 245
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:

APPLICANT
Revilla Pty Limited

RESPONDENT
Sydney City Council

FILE NUMBER(S):

10537 of 2004

CORAM:

Bly C

KEY ISSUES:

Appeal :- The number of patrons on levels 1 and 3 in a licensed hotel used as a place of public entertainment - fire safety - internal alterations -

LEGISLATION CITED:

Local Government Act 1993
Building Code of Australia
Local Government Approvals Regulations 1999
Environmental Planning and Assessment Act 1979
City of Sydney Local Environmental Plan 1996
Liquor Act 1982

CASES CITED:

Revilla v Sydney City Council 2003, NSWLEC 369;
Loretto Normanhurst Association Incorporated v Hornsby Shire Council 2002 NSW LEC 45;
Winn v Director General of National Parks and Wildlife and others, 2001 NSWCA 17;
Food Barn Limited v Solicitor General 1975 32 LGRA 157

DATES OF HEARING:

16 & 17/03/2005

EX TEMPORE JUDGMENT DATE:

03/17/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr B. Preston, senior counsel
instructed by
Mr K. Bagley, solicitor
of Thurlow Fisher Solicitors

RESPONDENT
Ms J. Jagot, barrister
instructed by
Mr M. Kelly, solicitor
of Sydney City Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

17 March 2005

10537 of 2004 Revilla Pty Limited v Sydney City Council

JUDGMENT

1 This appeal involves an application under s 68 and 75 of the Local Government Act 1993 for the use of levels 1 and 3 in the licensed hotel, known as the Pavilion Tavern, at 568-580 George Street, Sydney, hereafter The Hotel, as a place of public entertainment.

2 According to the application the type of entertainment sought comprises music and dancing, DJ, entertainment. The amended proposal now before the Court is for the occupancy numbers to be 200 persons on level 2 and 140 persons on level 1, consistent with the presently approved licensed premises. The Hotel is presently operating under development consent number 44-87-0899 dated 17 July 1987, hereafter The Consent. The Consent permits the use of the premises as a “tavern/bistro” subject to a number of conditions. The Pavilion Hotel is situated in the existing 44 storey commercial development, known as the HSBC Building, situated on the south east corner of George and Bathurst Streets, Sydney. Entry into The Hotel is off George Street. The locality in which The Hotel is located is an established entertainment precinct, comprising cinemas, amusement centres, restaurants and hotels.

3 On 11 December 1989 the Liquor Administration Board approved an entertainment authorisation for the hotel, permitting music and dancing for 140 persons on the ground floor and 180 persons on the first floor. A place of public entertainment approval for The Hotel granted on 3 January 2002 expired on 19 August 2003. The subsequent refusal of the council to renew this approval was the subject of an unsuccessful appeal to the Court, see Revilla v Sydney City Council 2003, NSWLEC 369. In rejecting the appeal I expressed concerns in relation to fire safety and the Building Code of Australia requirements, including management deficiencies. In this present case, taking into account the revised maximum number of patrons I am satisfied that the fire safety and BCA requirements have now been resolved, although the respondent continues to argue that concerns remain in relation to management aspects associated with fire safety matters.

4 I also concluded in Revilla:

“I have not been persuaded that the premises are not capable of providing public entertainment and complying with all necessary conditions.”

5 I heard nothing in these present proceedings that persuades me otherwise.

6 Cl 7(1)(A) of the Local Government Approvals Regulations 1999 relevantly provides that, and I quote:

“In determining an application for approval to use a building or temporary structure as a place of public entertainment, a council must take the following matters into consideration. A, whether any consent required under the Environmental Planning and Assessment Act 1979 for the use of the building for the purpose has been given.”

7 The terms of The Consent are, and I quote,

“To carry out internal alterations and fit out of part of the ground and mezzanine levels, (one section) of the abovementioned premises for use as a tavern/bistro.”

8 Reference is also made to certain drawing numbers. Whilst The Consent contains conditions relating to hours of operation for demolition work, it does not contain any restrictions on hours of operation for the land use. However, it does contain restrictions relating to noise levels.

9 Mr M Nolan, a council town planner, gave evidence that the consent is for a hotel without entertainment, based on information provided by the applicant in a document signed by the applicant and attached to the development application. That document is titled, “Additional information required in connection with development applications relating to clubs, restaurants, coffee lounges and the like. Questions to be answered, where applicable.” This additional information document asks questions in relation to entertainment, music and dancing. The responses to these questions are in the negative, except for the question relating to music where it is indicated that the only music to be played will be muzak. On this basis Mr Nolan was of the opinion that The Consent did not permit entertainment and therefore a further development application and development consent was required. Ms Jagot made submissions along similar lines.

10 Mr Nolan also contended that because a change of building classification is involved, being a change from a hotel without entertainment (Class 6) to a hotel with entertainment, (Class 9B), that this involves a change of use under the Environmental Planning and Assessment Act1979 and thus development consent is required.

11 As for this latter argument I accept the submission made by Mr Preston that the building already has a Class 9B classification, under the BCA, that in turn relies in part on the evidence of Mr T Sagris, that the premises attracts such a classification irrespective of the fact that it is not presently the subject of a place of public entertainment approval. Clearly the building was constructed to that standard of building and operated as such when the former approval, as a place of public entertainment, was in force. I agree that the lapsing of the place of public entertainment approval does not cause the building to be reclassified under the BCA. Hence this is not a basis to require a further development application.

12 Returning to the question of what the consent actually permits, Mr R Chambers, the applicant’s town planner, argued that because it does not state that entertainment is not permitted the reference to tavern/bistro is sufficiently broad to encompass what is now proposed. Nothing of significance has changed since the granting of the earlier place of public entertainment approval by the council.

13 Mr Chambers also explained that under the City of Sydney Local Environmental Plan 1996 the premises now comprises a pub, being premises specified in a hotelier’s licence granted under the Liquor Act 1982. The premises do not comprise a hotel, which is defined essentially as premises that provide accommodation consisting of rooms or self contained suites for guests. I do not know, however, whether categorising the premises as a tavern/bistro or a pub makes any difference at all to the interpretation of the development consent.

14 In further consideration of the interpretation of the development consent, my attention was drawn to the case of Loretto Normanhurst Association Incorporated v Hornsby Shire Council 2002 NSW LEC 45, and Winn v Director General of National Parks and Wildlife and others, 2001 NSWCA 17. In Winn, Spigelman CJ in agreeing with Stein JA, said at para 4, and I quote,

“A public document such as a development consent constitutes a unilateral act on the part of the consent authority expressed in a formal manner, required and intended to operate in accordance with its own terms. It has, as Stein JA points out, an inherent quality that it will be used to the benefit of subsequent owners and occupiers. It is also a document intended to be relied upon by many persons dealing with the original grantee, or assignees of the grantee, in such contexts as the provision of security. In some respects it is equivalent to a document of title. It must be construed in accordance with its enduring functions.”

15 Spigelman CJ also agreed that in that case that the documents on which the appellant sought to rely were not incorporated in the consent either expressly or by necessary implication. In Loretto Bignold J in referring to Winn and other cases, acknowledged the proposition that documents accompanying an application for consent are not taken as incorporated in a consent unless incorporated expressly or by necessary implication. In that case Bignold J construed the development consent as referring to the erection of a gymnasium as including the use of the building so erected for its intended purpose. He also excluded the use of the gymnasium for purposes other than those relating to the school, such purposes otherwise being prohibited by the relevant planning instrument.

16 Bignold J also held that a statement of environmental effects which was required under the Environmental Planning and Assessment Act to accompany the development application was thus effectively incorporated in the resulting consent by express reference.

17 Ms Jagot submitted that the information in the development application and the additional information document are effectively incorporated by reference into the consent. Consequently by answering the question regarding entertainment and performances in the negative in that document, this means that the consent does not include such things, and it follows that a further consent would be required. Mr Preston did not agree, arguing that the purpose of a tavern/bistro is sufficiently broad to include a variety of activities, including the provision of public entertainment. In this context I note that the premises presently provides various forms of entertainment, including a gaming room, pool tables, and televisions. Mr Preston also submitted that using the premises as a place of public entertainment is subordinate or ancillary to the use of the building for the purpose of a tavern/bistro, relying on a number of cases including Food Barn Limited v Solicitor General 1975 32 LGRA 157. I find both of his submissions persuasive.

18 It is clear to me that notwithstanding the need to have development consents operate in accordance with their own terms, the Winn case required that in the interpretation of such consents one can rely on matters incorporated expressly or by necessary implication. Clearly matters incorporated within the development application itself would fall within such an interpretation.

19 Adopting this approach I find that an examination of the development application itself provides little assistance as to whether or not any form of entertainment might be involved. In such circumstances I would again adopt the approach suggested by Mr Preston that the term tavern/bistro is sufficiently broad to include entertainment. However, if the additional information document were to be construed as part of the development application then it could be construed that entertainment and performances, dancing and music other than muzak, would be excluded by the consent. However, I do not accept that this document forms part of the development application as such, rather it is additional information provided to assist the council in considering the application.

20 I am thus satisfied that the material contained in this document is not expressly incorporated or can be included by implication. In all of these circumstances I am satisfied that the consent effectively provides for entertainment, and I take this into account for the purposes of regulation 7(1). However, should I be wrong in this analysis, and if further development consent under the Environmental Planning and Assessment Act is required, to enable the premises to be used as a place of public entertainment, I do not find that this should prevent the granting of the place of public entertainment approval now sought. In this regard I heard no persuasive reasoning that a development consent should necessarily precede the granting of a place of public entertainment approval. Here, one cannot discount the fact that a place of public entertainment approval has been issued in the past, absent any such development consent. Indeed I cannot imagine any fundamental reason why any such consent, if required, and subject to appropriate conditions, could not be granted.

21 This brings me to the question of whether if a place of public entertainment approval were granted, the premises would be appropriately managed. This is an important question, given that aspects of social impacts and the safety of customers rely in part on compliance with a number of conditions on an ongoing basis. I have already indicated I am satisfied with the proposed conditions relating to BCA matters including fire safety. I am also satisfied with the proposed management plans. However, Ms Jagot essentially submits that the present management cannot be relied upon to ensure such compliance. She cites past examples of non compliances, as a relevant matter to be taken into account, including poor maintenance items, and failure to rectify non compliances identified by council officers on inspection, such as exceeding licensed number of patrons. Ms Jagot also expressed concern as to the ability of the present licensee, Ms J Cinconze, who has been the licensee of the Pavilion Tavern since August 2004.

22 Mr Preston insisted that past conduct was not relevant, and that the Court could expect compliance with all of the conditions of an approval if granted. He did acknowledge, however, that if non-compliances were to occur, remedies are available including fines, and possible loss of the licence. He also submitted that consents are essentially impersonal and that it is thus not relevant to consider the identity of the applicant, or in this instance the licensee. In any event he contended that Ms Cinconze is, despite her age, a fit and proper person to receive an approval to use the premises as a place of public entertainment, as evidenced by her being the present licensee, her experience and qualifications. That experience includes being a manager at another hotel, having achieved a statement of attainment in hotel licensees from the New South Wales TAFE, as well as achieving certificate II competencies in hospitality, also through New South Wales TAFE.

23 Despite the past history of non-compliances I expect that the proposed conditions and the new management regime which given her short time at this hotel also includes Ms Cinconze, and taking into account the evidence of Mr J Binnie, a liquor industry consultant, I have not been persuaded that the matters of concern raised on behalf of the respondent are sufficient to reject this application. In all other circumstances I am now satisfied that the requirements of regulation 7(2) will be met by this proposal, not only in terms of the structure of the building fire safety matters, especially egress and fire suppression, but also if it is relevant here, management aspects.

24 The remaining issue involves the matter of a condition stipulating hours of operation for the place of public entertainment licence. The council seeks to impose the hours of operation stipulated in its “policy on trading hours for new and existing premises.” Proposed condition 15 is consistent with this policy, allowing entertainment between 8am and midnight on Mondays to Saturdays inclusive. The condition also provides for a one year trial period, allowing entertainment to occur between 12 midnight and 2am the following day, seven days per week. The applicant seeks to have no constraint at all on when entertainment may be offered on the premises, adding that it is relevant to take into account the noise controls that would apply.

25 Whilst I recognise that given the various controls applicable to the premises including controls in relation to noise emission, that should avoid external impacts, I agree with the council that the condition should be imposed. In reaching this conclusion I give significant weight to the policy, which has been in place, and subsequently consistently applied, since its inception in August 2001. I therefore propose to uphold the appeal and grant the place of public entertainment approval, subject to the conditions in exhibit J.

________________________

TA Bly

Commissioner of the Court

ljr

15/11/2005 - to correct the reference to the Local Government Act 1993 - Paragraph(s) 1