Signorelli Investments Pty Limited v Sutherland Shire Council

[2003] NSWLEC 356

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Reported Decision: (2003) 133 LGERA 150

Land and Environment Court

of New South Wales

CITATION:	Signorelli Investments Pty Limited v Sutherland Shire Council [2003] NSWLEC 356
PARTIES:	APPLICANT Signorelli Investments Pty Limited RESPONDENT Sutherland Shire Council
FILE NUMBER(S):	40228 of 2003
CORAM:	Pain J
KEY ISSUES:	Construction and Interpretation :- duration of place of public entertainment approval where no time limit specified on its face - whether lapse in s 103 of the Local Government Act 1993 means the approval terminates after five years Injunctions and Declarations :- appropriate wording of declaration - whether duration of place of public entertainment approval a hypothetical issue in these proceedings
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 95 Local Government Act 1993 s 68, s 103
CASES CITED:	The University of New South Wales v Moorhouse (1975) 133 CLR 1
DATES OF HEARING:	13, 14/10/2003, 16/10/2003 (written submissions), 22/10/2003 (written submissions), 07/11/2003, 11/11/2003
DATE OF JUDGMENT:	11/12/2003
LEGAL REPRESENTATIVES:	APPLICANT Mr T Hale SC with Ms J Thornton (barrister) SOLICITORS Solari Legal RESPONDENT Mr J Atkin (barrister) SOLICITORS Abbott Tout

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

40228 of 2003

Pain J

12 November 2003
SIGNORELLI INVESTMENTS PTY LIMITED
Applicant
v
SUTHERLAND SHIRE COUNCIL
Respondent
Judgment



Introduction
1. In these Class 4 proceedings the Applicant initially sought a declaration in its Class 4 Application that a Place of Public Entertainment Licence (POPE Licence) No 03/0085 dated 6 February 2003 issued by the Council to the Applicant for premises at 223 Belgrave Esplanade, Sylvania Waters, is invalid and of no force or effect. In its Amended Application the Applicant also sought a declaration that a POPE licence issued in 2001 to the Applicant by the Council is valid.

2. The Applicant conducts a wedding reception and function centre known as Doltone House at 223 Belgrave Esplanade, Sylvania Waters. Council has issued a number of POPE approvals, referred to as licences in the Amended Class 4 Application, to the Applicant in relation to Doltone House in 1999, 2000, and 2003. The POPE approval is issued by the Council pursuant to s 68 of the Local Government Act 1993 (the LG Act).

3. On 7 November 2003, following final submissions at the hearing, it became clear that the parties were able to resolve most of the issues raised in the Amended Class 4 Application filed by the Applicant. There is, however, disagreement as to the form of the final declaration the Court is to make, and it is about this matter that I give this judgment.

4. The declaration as sought by the Applicant is as follows:


The Certificate of Approval for Place of Public Entertainment Certificate number 96/05 dated 13 December 2001 issued by the Respondent to the Applicant for premises Lot 501 in DP 533882 known as 223 Belgrave Esplanade, Sylvania Waters ("the premises") remains valid and subsisting.

5. Alternatively the Council seeks the following declaration:

Declaration that the Certificate of Approval for Place of Public Entertainment certificate number 96/05 dated 13 December 2001 issued by the Respondent to the Applicant for premises Lot 501 in DP 533882 known as 223 Belgrave Esplanade Sylvania Waters remains valid and subsists up to and including 13 December 2006.

I will refer to this approval as the 2001 POPE approval in this judgment.

6. The outstanding issue between the parties is whether or not the Court should declare that the 2001 POPE approval is valid and subsisting for a five-year term up to 13 December 2006, as the Council argued, or rather, as the Applicant argued, the issue of the term of the 2001 POPE approval does not arise for determination at all now in these proceedings and no such declaration should be made. The Applicant argued that the Court should simply make the declaration sought by the Applicant to the effect that the 2001 POPE approval remains valid and subsisting, meaning valid and currently effective. The Applicant maintained that this would not impact on any future argument which may arise before this Court as to what the appropriate term of the 2001 POPE approval is. I note that in argument during the substantive hearing the Applicant had maintained the 2001 POPE approval was valid for an indefinite period.

7. The Council argued the issue of the term for the 2001 POPE approval clearly arose in the proceedings and indeed was raised by the Applicant in its submissions to the Court, which is certainly true. Furthermore, the fact that no cross-claim has been filed by the Council should not be a bar to it being raised as an issue in relation to the final orders, and I agree with this submission. I note that the Applicant filed in Court, and sought to rely on, on the first day of the hearing, an Amended Class 4 Application which sought for the first time the declaration that the 2001 POPE approval or licence, as it was referred to in the Amended Class 4 Application, was valid. In other words there was little or no notice given to the Council that this matter was to be raised at all before the hearing commenced, which made it impossible for the Council to file a cross-claim before the hearing in any event.

8. The Council submitted the word “subsisting” was unclear and could preclude a future challenge to the length of the approval, depending on how that term was interpreted in the future.

Is the term of the 2001 POPE approval a hypothetical question?
9. The Applicant’s counsel stressed that this issue did not need to be resolved now, in that the Council accepts that the 2001 POPE approval is valid and currently subsisting, so that it is on foot and effective, which is true.

10. Reliance was placed by the Applicant on the decision of The University of New South Wales v Moorhouse (1975) 133 CLR 1 at 24 in which Jacobs J held that:
A declaration of right based on facts found in the particular case can certainly be made but it is not permissible to make a declaration of right which amounts to a conclusion of fact from a hypothetical or assumed state of facts and thereby to enunciate or declare a rule of apparently general application as though it were a declaration of applicable law.


11. Having been initially attracted to the Applicant’s arguments that it is not appropriate that I decide this question now, on further reflection it seems to me appropriate that I do so. There clearly is an issue between the parties about which I heard argument during the substantive hearing and subsequently in the parties’ submissions concerning the final orders I should make in the matter. The facts before me are in no way hypothetical. The Applicant stated there could be unknown matters which may arise for determination as to whether or not there is disagreement between the parties in 2006. These unknown issues do not, it seems to me, impact on the facts as currently known to the Court. Whether the law changes or whether there is a dispute between the parties in 2006 is not material, in my view.

12. I also consider the issue is essentially a question of statutory construction as I know that the 2001 POPE approval does not have a time limit in it. The question is therefore the interpretation of s 103 of the Local Government Act 1993 (the LG Act). I also consider, given the conflicting submissions made by the parties on the appropriate form of the final declaration as to the meaning of “valid and subsisting” as the Applicant’s declaration states, that the question inevitably arises if I were to make the Applicant’s declaration as to how long the 2001 POPE approval subsists for. This issue has been squarely raised for determination in the proceedings, in my view, and I consider I must deal with it.

When does the 2001 POPE approval lapse?
13. It is agreed, and it is clear on the face of the document that there is no time limit specified in the 2001 POPE approval. Under s 68(1) of the LG Act, a person may carry out the activity identified in Pt A par 3 of the Table namely, "Use a building or temporary structure as a place of public entertainment or permit its use as a place of public entertainment", only with the prior approval of the Council.

14. Section 103 of the LG Act specifies that:
(1) An approval lapses:

(a) 5 years after the date from which it operates, except as provided by paragraph (b), or

(b) in the case of an approval that is subject to a condition under section 96 (2), 2 years after the date on which the last approval, consent or permission required to be obtained in accordance with the condition operates.


(2) A council, in granting an approval, may vary either or both of the periods referred to in subsection (1).
…
(5) In this section, vary means increase or reduce.


15. The Applicant’s counsel argued that “lapse” under s 103 has a particular meaning similar to that which pertains in s 95(1) of the Environmental Planning Assessment Act 1979 (the EP&A Act) in relation to the lapsing of development consents. In other words, “lapsing” means termination of a right or privilege through neglect to exercise it or through failure of some contingency. Lapsing would only arise if there was a failure to take up the POPE approval. It was further argued that if I limited the term of the approval to five years then all matters which required approvals under s 68 would be similarly affected. This was said to be an adverse consequence.

16. I, however, agree with the submissions of the Council that lapsing in the context of s 103 means simply that the approval no longer has effect after five years if no other time period is specified in it. Given that this approval deals with questions of public safety it seems highly unlikely to me that legislation would be designed to allow such approvals to be issued for an indefinite period. I do not think the analogy with the EP&A Act relied on by the Applicant’s counsel is apt, given the different drafting and circumstances to which it is directed. I particularly note the inclusion of s 95(4) and s 94(5) of the EP&A Act which specifically save the consent from lapsing, essentially, if the consent is taken up. No similar provisions are found in s 103 of the LG Act or elsewhere in that Act.

17. I understand that s 104 of the LG Act as it existed previously did contain provisions similar to s 95(4) of the EP&A Act but this provision was deleted when the LG Act was amended and the building consents regime was essentially moved to the EP&A Act . There is clearly power provided in s 103(2) for the Council to increase or decrease the term of an approval issued under s 68, so that a time period appropriate to the approval can be given. This is clearly necessary given the wide range of matters specified under s 68 of the LG Act for which approval can be given by a council. I do not therefore consider that the interpretation I have placed on s 103 will have deleterious effects across all the matters for which approval can be given under s 68 as the Applicant submitted.

18. Accordingly I intend to make the declaration sought by the Council in this matter.

Declarations and Orders
19. The Court declares that:
1. The certificate of Approval for Place of Public Entertainment certificate No 96/05 dated 13 December 2001 issued by the Respondent to the Applicant for premises Lot 501 in DP 533882 known as 223 Belgrave Esplanade, Sylvania Waters remains valid and subsists up to and including 13 December 2006.

The Court orders that:
2. Costs are to be reserved
3. The exhibits may be returned.
4. Leave is granted to the parties to approach the Registrar forthwith to obtain a hearing date for costs.

The Court notes that:

5. These orders shall not affect any other orders made by this Court and undertakings given in proceedings 40122 of 1999 and 41049 of 2002 on 30 May 2003.
6. The Respondent acknowledges that the Applicant has not taken up the Place of Public Entertainment Licence application number POPE 03/0085 dated 6 February 2003 issued by the Respondent and is otherwise surrendered .