Land and Environment Court New South Wales Medium Neutral Citation: Blues Point Hotel Property Pty Ltd v North Sydney Council [2021] NSWLEC 27 Hearing dates: 8 and 9 February 2021 Date of orders: 31 March 2021 Decision date: 31 March 2021 Jurisdiction: Class 4 Before: Duggan J Decision: See paragraph 112 Catchwords: ENVIRONMENT AND PLANNING – existing use rights – whether existing use of premises as a hotel extends to the first floor outdoor terrace ENVIRONMENT AND PLANNING – characterisation of existing use – s 4.65 EP&A Act – use defined by reference to Liquor Act 1912 – whole of building used for purposes of a hotel ENVIRONMENT AND PLANNING – continuation of existing use – construction of s 4.66(2)(b) EP&A Act – extent to which area was actually physically lawfully used prior to date use prohibited ENVIRONMENT AND PLANNING – enlargement expansion or intensification or an existing use – s 4.66(2)(c) – ordinary meaning – extent of hotel use prior to date use prohibited Legislation Cited: Cumberland Planning Scheme Ordinance 1951 Environmental Planning and Assessment Act 1979 Interim Development Order 57 1975 Liquor Act 1912 Liquor Act Regulations 1922 North Sydney Local Environmental Plan 2001 North Sydney Local Environmental Plan 2013 North Sydney Planning Scheme Ordinance 1963 North Sydney Local Environmental Plan 1989 Uniform Civil Procedure Rules 2005 Cases Cited: Auburn Council v Nehme (1999) 106 LGERA 19 Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 Hudak v Waverley Municipal Council (1990) 70 LGRA 130 Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 241 LGERA 321 Jojeni Investments v Mosman Municipal Council (2015) 89 NSWLR 760 Kayora Pty Ltd v Leichhardt Council [2010] NSWCA 35 Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 South Sydney City Council v Houlakis and Teakdale Pty Ltd (1996) 92 LGERA 401 Sydney City Council v Ke-su Investments Pty Ltd and Others (No 2) (1983) 51 LGRA 186 Turnbull Group v North Sydney Council (1998) 101 LGERA 354 Vaughan-Taylor v David Mitchell-Melcann Pty Ltd and Minister for Minerals and Energy (1991) 73 LGRA 366 Texts Cited: Macquarie Dictionary (online) Category: Principal judgment Parties: Blues Point Hotel Property Pty Ltd (First Applicant) Blues Point Hotel Property No. 2 Pty Ltd (Second Applicant) North Sydney Council (Respondent) Representation: Counsel: Mr A Pickles SC and Ms L Sims (First and Second Applicants) Mr T To (Respondent) Solicitors: Bartier Perry Lawyers (First and Second Applicants) HWL Ebsworth Lawyers (Respondent) File Number(s): 2019/373973 Publication restriction: No Judgment Nature of proceedings 1. The Applicants in these proceedings seek a declaration that part of the premises known as the Blues Point Hotel at Lot 1 DP 1018682, 116 Blues Point Road, McMahons Point (the Premises), being the first floor external terrace (Outdoor Terrace) benefits from existing use rights for the purpose of a pub (as defined under the North Sydney Local Environmental Plan 2013 (LEP)) pursuant to s 4.65 of the Environmental Planning and Assessment Act 1979 (EP&A Act). 2. The Applicants had also sought an order that a development control order issued by the Respondent (the Council) on 3 May 2017 under the then s 121B of the EP&A Act was invalid, void and of no effect. The foundation of this claim was that the Applicants asserted they had the existing use rights referred to in the declaration sought. During the course of the proceedings, the Council undertook to revoke the development control order in the event that existing use rights were found. If no existing use rights are found the order should remain. 3. Therefore, the only question remaining is whether the Outdoor Terrace (as part of the Premises) benefits from existing use rights for the purposes of a pub as defined under the LEP pursuant to s 4.65 of the EP&A Act. Background facts 1. The Applicants are the current owners and operators of the Premises. 2. The use of the Premises for the purposes of a hotel or pub has continued in at least parts of the Premises since its construction in 1938. 3. The building was constructed in 1938 (the Building). 4. The Premises currently comprises: 1. A public bar, lounge, dining area and external terrace at the ground floor level; 2. An internal stairway providing access from the ground floor public bars to the first floor level; 3. The Outdoor Terrace which is situated at the western end of the first floor level adjoining the internal stairway; 4. Short-term accommodation rooms available to the public on a commercial basis to the eastern end of the first floor level; and 5. A private dining room on the first floor level. 1. The Outdoor Terrace in its current configuration has been improved by the provision of timber flooring, tables and chairs, stand up counters along the parapet, and umbrellas. Relevant legislative provisions 1. The Premises is on land zoned R3 Medium Density Residential under the LEP. Development for the purpose of a pub, hotel or licenced premises is a prohibited use in the R3 zone under the LEP. County of Cumberland Planning Scheme Ordinance 1951 1. The Cumberland Planning Scheme Ordinance (CPSO) commenced on 27 June 1951. The Premises was zoned Industrial Area, Class 'B' Reserved in which a "Shop" was permissible with consent. "Shop" is defined: "Shop" means any building or place, or portion of a building or place, used or designed for use for the purpose of exposing or offering goods for sale by retail, and any premises which may be licensed by the council as a refreshment room and any premises licensed under the Liquor Act, 1912, as amended by subsequent Acts. 1. The Liquor Act 1912 defined "Licenced premises": "Licenced premises" means the premises in respect of which a license granted under this Act, or any Act hereby repealed, is in force. 1. The CPSO permitted the Premises to continue to operate without the need to obtain a consent by operation of clause 32. North Sydney Planning Scheme Ordinance 1963 1. The North Sydney Planning Scheme Ordinance (NSPSO) on 19 April 1963 (the Relevant Date), commenced which prohibited hotels in the zone. By its definitions the Premises were no longer characterised as a shop and fell within the defined use of "Hotel" which provided: "Hotel" means any premises specified in a publican's license issued under the Liquor Act, 1912, as amended by subsequent Acts. 1. The NSPSO defined an existing use as: "Existing Use" means a use of a building, work or land for the purpose for which it was used immediately before the appointed day and, in the case of a building or work to which the provisions of clause 63 apply, the use of such building or work for the purpose for which the erection of the building or the carrying out of the work, as the case may be, was approved. 1. An existing use was able to be maintained and continued by operation of clause 30 of the NSPSO. Interim Development Order 57 1. The Interim Development Order 57 (IDO 57) commenced on 11 April 1975. The Premises was zoned Residential D2 in which hotels were prohibited. Existing uses were able to be continued pursuant to clause 5. North Sydney Local Environmental Plan 1989 1. The North Sydney Local Environmental Plan 1989 (LEP 1989) commenced on 3 November 1989 and the Premises were situated within the 2(c) zone. The use for a hotel was prohibited in that zone. Hotel was defined as: "Hotel" means any premises specified in a hotelier's licence granted under the Liquor Act 1982; 1. Existing uses under this LEP were governed by the provisions of the EP&A Act. North Sydney Local Environmental Plan 2001 1. The North Sydney Local Environmental Plan 2001 (LEP 2001) commenced on 1 June 2001 and has the same definition of "hotel" as the LEP 1989 and the Premises was zoned "Residential B". Hotels were prohibited in that zone. 2. Existing uses under this LEP were governed by the provisions of the EP&A Act. North Sydney Local Environmental Plan 2013 1. The LEP commenced on 22 November 2013 and designated the Premises as R3 Medium Density Residential. The LEP defines "pub" as: pub means licensed premises under the under the Liquor Act 2007 the principal purpose of which is the retail sale of liquor for consumption on the premises, whether or not the premises include hotel or motel accommodation and whether or not food is sold or entertainment is provided on the premises. hotel or motel accommodation means a building or place (whether or not a licensed premises under the Liquor Act 2007) that provides temporary or short-term accommodation on a commercial basis that: comprises rooms or self-contained suites, and may provide meals to guests or the general public and facilities for the parking of guests' vehicles, but does not include backpackers' accommodation, a boarding house, bed and breakfast accommodation or farm stay accommodation. 1. Existing uses under this LEP were governed by the provisions of the EP&A Act. EP&A Act 1. Division 4.11 of the EP&A Act which relates to existing uses commenced on 1 September 1980. At commencement s 106 of the EP&A Act provided a definition of an existing use that is now contained (in the same terms) at s 4.65. The Applicants in these proceedings rely upon that part of the definition contained in s 4.65(a) which provides: In this Division, existing use means— (a) the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for this Division, have the effect of prohibiting that use, and… 1. At the time of commencement of the EP&A Act s 107 made provision for the continuation of existing uses. Section 107 was then amended in February 1986 to insert s 107(b1). Section 107 is now contained (in the same terms) in s 4.66, and the amended s 107(b1) is now numbered s 4.66(2)(c). Therefore, the relevant application of the provisions of s 4.66 is that it applied, in its present terms, from the date of the commencement of the EP&A Act for all parts with the exception of s 4.66(2)(c) which operates from the commencement date in 1986. Section 4.66 provides: Continuance of and limitations on existing use (1) Except where expressly provided in this Act, nothing in this Act or an environmental planning instrument prevents the continuance of an existing use. (2) Nothing in subsection (1) authorises— (a) any alteration or extension to or rebuilding of a building or work, or (b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or (c) without affecting paragraph (a) or (b), any enlargement or expansion or intensification of an existing use, or … Evidence 1. The parties provided a large volume of documentary material evidencing the dealings with the Premises over the years. Whilst all material has been considered the parties placed primary reliance upon the following matters in the evidence. 2. The Building was approved by for the grant of building approval no. 38/313 in October 1938 and amended approval in January 1939. The plans that were approved as part of the building approval (as amended) show the original layout of the Building as: 1. The cellar level is part below ground and part above ground – due to the change in levels of the land; 2. At the ground floor level there are four public bars including a ladies' parlour with a separate lobby entrance, as well as toilets. There is a verandah adjoining the main public bar labelled "Verandah. Tiled floors" over which is an awning; 3. The first floor is accessed via internal stairs from the ground floor. It provides six accommodation rooms with sinks, shared bathrooms, a lounge area together with separate accommodation for the licensee. There is a verandah accessed from one of the bedrooms and a balcony at the front elevation accessed from the area adjacent to the lounge area. 4. On the first floor adjacent to the stairs is a door which permits access to the Outdoor Terrace being the disputed area the subject of these proceedings. The floor plan of that area is at Figure 1 below: Figure1: Extract from first floor plan: JE & ER Justelius & N D Frederick, Architects. Aug. 1938. 1. The plans designate the Outdoor Terrace with the words "Flat Roof or Sun Deck. Malthoid Roof & Rendered". The Outdoor Terrace is surrounded by a parapet which from the elevations of the plans appears to be of a height that would be sufficient to preclude the ability of a person to accidentally fall from the area. 2. On 28 September 1959, Publican's License 103638 (which later became known as a Hotelier's License) was issued to Blues Point Hotel, 116 Blues Point Road, McMahons Point. 3. On 16 June 1961, the District Licensing Inspector made an application to the Licensing Court for an order under s 40A of the Liquor Act 1912 requiring alterations to the licenced premises. The application gave the following information: 1. The proposed order required the work "…at the premises known as 'McMahons Point' Hotel situate at 116 Blues Point Road, McMahons Point, in respect of which a (publican's license)…is held…"; and 2. The proposed works included: "Repair or replace door leading from passageway to roof on first floor". 1. By letter from the Council dated 7 September 1972 the Council advised the owner of the Premises: I have to acknowledge your letter of 21st August, 1972, and to advise as follows. The site occupied by your McMahons Point Hotel at 116 Blues Point Road is zoned Residential 2(a) in the prescribed North Sydney Planning Scheme Ordinance, and your hotel is a non-conforming use under that Ordinance. However, the use of the site does have existing use rights under Part IV of the Ordinance – the relevant clauses being clauses 30 and 31, which read as follows… 1. A development application dated 26 September 1962 for alterations unrelated to the flat roof or sun deck describe the type of building as "Licensed Hotel". 2. Various development applications relating to the Premises between 1970 and 2001 do not relate to the Outdoor Terrace but did proceed on the basis that the Premises were subject to the existing use provisions in existence at the time of those applications. 3. In relation to a 2015 application to amend the boundaries of the licenced area, the Independent Liquor and Gaming Authority stated on 16 February 2016 that it did not have "sufficient information to confirm that the current boundaries include the first floor" and rejected the application. 4. From May 2016 the Outdoor Terrace was observed to be used by patrons of the hotel for consumption of food and drinks purchased on the ground floor of the Premises. 5. In a letter from Justice Liquor & Gaming NSW dated 22 June 2016 to a resident of French Street the department advised that "there is no evidence to confirm that the hotel's top floor outdoor terrace is licensed". 6. The current "Alcohol Management Operations Register" for the Premises identified the Outdoor Terrace as "Upstairs Terrace" and indicates the following: Upstairs Terrace 11am-10pm 7 days/week (open later at manager's discretion e.g. NYE) 15-20 min checks Minors Water – on request Service – self-service NO DRINK SERVICE UPSTAIRS AT ANY TIME – PATRONS MUST PURCHASE DRINKS FROM THE BAR! 1. A number of affidavits were read in the proceedings. The affidavits related largely to observations of the use of the Premises over its history and attesting as to searches of records undertaken in respect to the use of the Premises. Issues for determination 1. The parties prepared a List of Real Issues for Determination where they identified the following issues relating to the existing use rights of the Outdoor Terrace: (1) Whether the whole of the premises identified as Lot 1 in Deposited Plan 1018682 and known as the Blues Point Hotel, 116 Blues Point Road, McMahons Point (Premises) benefits from an existing use, pursuant to section 4.65 of the Environmental Planning and Assessment Act 1979 (Act), for the purpose of a hotel as defined under the North Sydney Planning Scheme Ordinance 1963 (NSPO). (2) Whether the existing use of the Premises as a hotel extends to the first-floor external terrace (First-Floor Terrace). (3) Whether the use of the First-Floor Terrace for hotel patrons (who may consume food and alcohol) is an enlargement, expansion or intensification of an existing use which requires development consent. 1. Having regard to the particular circumstances of this case the determination of those identified issues requires a consideration of the evidence relating to each issue and the making of findings as to: 1. The proper characterisation of the use at the Relevant Date and a determination of whether such use was one that met the requirements of the definition of an existing use as provided for in s 4.65 of the EP&A Act; 2. Whether the continuation of that existing use, insofar as it relates to the Outdoor Terrace, is not authorised by the operation of s 4.66(2)(b); and 3. Whether the current use of the Outdoor Terrace is not authorised as a continuation of an existing use as it constitutes an enlargement, expansion or intensification of an existing use as determined from the date of the introduction of s 4.66(2)(c) being 3 February 1986. 1. The Council contends that the use of the Outdoor Terrace is not to be characterised as a hotel use but rather as an accommodation use. An accommodation use is presently a permissible use in LEP 2012. Therefore, if the Outdoor Terrace formed part of the permissible accommodation use and not the prohibited hotel use it would not enjoy existing use rights. The Council submitted that the issue of whether the use should be characterised as separate and independent uses need not be determined unless there was a finding on the evidence that the Outdoor Terrace was in fact used by occupants of the accommodation. 2. Fundamental to a determination of the issues is the characterisation of the use and as part of that a determination as to whether the use as characterised extend to the Outdoor Terrace. An existing use is to be determined by: firstly, ascertaining as a matter of objective fact what was happening on or in relation to the Building, work or land at the Relevant Date; secondly, ascertaining the object or purpose for those things being done; and thirdly, characterising that purpose: Hudak v Waverley Municipal Council (1990) 70 LGRA 130 at 133. Notwithstanding the Council's approach, the fundamental characterisation exercise cannot be undertaken without determining whether there were two separate and independent uses. 3. The onus of establishing that the use is a continuing use is borne by the Applicants: Auburn Council v Nehme (1999) 106 LGERA 19 at [4]. The onus of establishing an enlargement, expansion or intensification of the existing use is borne by the Council: Turnbull Group v North Sydney Council (1998) 101 LGERA 354 at 365. Identification and characterisation of existing use 1. The principles that guide the task of characterisation were conveniently summarised by Leeming JA in Jojeni Investments v Mosman Municipal Council (2015) 89 NSWLR 760 at [74]-[76]: 74 I return to the question of characterisation, which is not free from difficulty. As Professors Twining and Miers have said in a different context, "There are no categorical rules to direct judges about the selection of appropriate levels of generality": W Twining and D Miers, How to Do Things with Rules (5th ed, 2010, Cambridge University Press) at 309. The same is true here. 75 However, there are well-established principles to guide the exercise of judgment. The question is the appropriate characterisation of the purpose of the use: O'Keefe at 535. That question is not answered through a meticulous examination of the details of the activities undertaken on the land: O'Keefe at 535. It is necessary to have regard to the purpose served by those activities: Abret v Wingecarribee Shire Council at [51]. That use is characterised liberally, having regard to the principle that provisions designed to protect and preserve existing use rights should be as liberally construed as the statutory language in its context allows: Dorrestijn v South Australian Planning Commission (1984) 59 ALJR 105 at 108. 76 In Royal Agricultural Society of New South Wales v Sydney City Council at 310, McHugh JA (with whom Hope and Samuels JJA agreed) stated that the level of generality was "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". In determining the appropriate genus, "attention should be focused on the [town-planning] purpose for which the determination is being made … because the regulation of the use within the neighbourhood is the general purpose for which planning law is provided": Boyts at 59; Grace v Thomas Street Café Pty Ltd [2007] NSWCA 359; 159 LGERA 57 at [69]. 1. Further, in the task of identification of the end to which the use is served there may be more than one purpose to which the activities are directed, the consequence of such a situation is described by McHugh JA in Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 at 311 as: 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. If that conclusion is drawn, then each purpose is to be characterised in accordance with the principles set out earlier in this judgment. 1. For planning purposes, a use that is ancillary to a dominant purpose is to be disregarded and treated as part of the dominant purpose. This determination of whether a particular use is ancillary to another use was established in Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 where it was stated at 161: …It may be deduced that where a part of the premises is used for a purpose which is subordinate to the purpose which inspires the use of another part, it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being used. Doubtless the same principle would apply where the dominant and servient purposes both relate to the whole and not to separate parts. But the trial judge specifically found that sales by retail were not ancillary to other purposes of the defendants and no attempt has been made to subvert that conclusion. Where the whole of the premises is used for two or more purposes none of which subserves the others, it is, in my opinion, irrelevant to inquire which of the multiple purposes is dominant. If any one purpose operating in a way which is independent and not merely incidental to other purposes is prohibited, it is immaterial that it may be overshadowed by the others whether in terms of income generated, space occupied or ratio of staff engaged. The ordinance is nonetheless being disobeyed. 1. Further explanation of the principles relevant for consideration of the issue of characterising an ancillary use was outlined in Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 at 409-410: …Notwithstanding the principles laid down in Foodbarn, it does not follow that a use which can be said to be ancillary to another use is thereby automatically precluded from being an independent use of the land. It is question of fact and degree in all the circumstances of the case whether such a result ensues or not. When a resident uses his land to park his motor car at his house, he is no doubt not conducting an independent use of car parking; when an employer installs at his factory a canteen for his workers, no doubt he is not conducting an independent use of running a restaurant; when the Clarks grew vegetables for their table they were not conducting an independent use of vegetable growing. But when one use of the land is by reason of its nature and extent capable of being an independent use it is not deprived of that quality because it is "ancillary to", or related to, or interdependent with, another use. If a book publisher opens a sales room at his publishing house to sell his products, the selling of books is an independent use although ancillary to the use of publishing. The series of cases dealing with dual uses (of which the decision of this Court in Warringah Shire Council v Caltex Oil (Australia) Pty Ltd (1989) 68 LGRA 206 is an example) illustrate the point: they show that a "convenience store" and a petrol station are two independent uses, although the former is clearly ancillary to the latter. This is a fortiori the case where the "ancillary" use has pre-dated the use to which it is said to become ancillary and when it has done so in circumstances where it was initially not "ancillary" to any other use. 1. It is then necessary to apply these principles to the evidence of use in this case. Applicants' submissions 1. The Applicants' primary submission is that the prohibited use was described in the NSPSO as a hotel and that such description encompassed: any premises specified in a publican's license issued under the Liquor Act, 1912, as amended by subsequent Acts. As a consequence, provided the Outdoor Terrace was part of the Premises specified in the publican's license it did not matter what the particulars of the use the area were it was still to be characterised as a hotel and upon being rendered prohibited it was permitted to continue as an existing use pursuant to s 4.66 of the EP&A Act. To attempt to dissect the manner in which the Outdoor Terrace was used or by whom was used is to undertake an impermissible examination of the methods and processes of the existing use rather than characterising the use at an appropriate level of generality which would be as a hotel: Royal Agricultural Society of New South Wales at 310. 2. The Court would be satisfied that the Outdoor Terrace formed part of the premises specified in the publican's license as: 1. The publican's license relating to the Premises identified it by address only and therefore, both the Building and the land upon which it was situated was so "specified" in the license. As the Outdoor Terrace formed part of the Building it was, therefore, for the purposes of characterising the existing use, used as a hotel; 2. The irresistible inference that the Outdoor Terrace formed part of the licenced premises is also reinforced by the subject matter of the proceedings referred to at [29] above. Such proceedings would not have been within power unless the door to the Outdoor Terrace formed part of the licenced premises, the inference also being that the area beyond the nominated door (being the Outdoor Terrace) would have also formed part of the licenced premises; and 3. Such an inference is compelling for the reasons adopted in Kayora Pty Ltd v Leichhardt Council [2010] NSWCA 35 which are equally applicable to the circumstances of this case. 1. The use of the Building as a whole was for a hotel use. The fact that accommodation was provided did not evidence a separate and independent use, but to the extent that the accommodation was provided it was provided for the hotel use or was ancillary to that use and therefore, became prohibited at the Relevant Date. 2. The accommodation was a necessary part of the hotel use by virtue of s 25 of the Liquor Act 1912 which provided: Before a publican's license is granted for any house, and during the continuance of such license, such house shall contain, in addition to and exclusive of such reasonable accommodation for the family of the licensed publican as the court thinks requisite, at least two moderate-sized sitting-rooms and four sleeping-rooms constantly ready and fit for public accommodation. And during the continuance of such license every such house shall be provided with at least two decent places of convenience on or near the premises for the use of the customers thereof, so as to prevent nuisances and offences against decency, and with such stabling or garage accommodation or both as the court shall deem necessary. 1. As it was a necessary requirement for a publican's license that accommodation be provided it matters not whether the Outdoor Terrace was related to the accommodation or the areas of the hotel that provided alcohol, the use was still for hotel purposes. Council's submissions 1. The Council submitted that the Applicants had not discharged its onus of establishing that the Outdoor Terrace was part of the area specified in the publican's license. It was contended that the inference would be drawn that the relevant license related to part of the Premises on which alcohol could be sold and consumed. The inference that the publican's license was limited to only parts of the Building is to be drawn from: 1. The object of the Liquor Act 1912 was to regulate the sale of liquor, thereby, indicating the likelihood that a publican's license only relates to those parts of any building on which alcohol was able to be served; 2. Various provisions of the Liquor Act 1912 that drew a distinction between the building and the land upon which it was situated, such as ss 24(1), 25, 27, 40(2) and 40A. This indicates that it was not intended to determine the Premises to which a publican's license related as being the land and any building at a nominated address; 3. The evidence indicates that applications were made to extend the licenced area on parts of the Building where alcohol had not been served. Such indicates a limitation of the license to only parts of the Building; and 4. The evidence discloses that the licensing authority had indicated it was not satisfied there was any evidence that the Outdoor Terrace formed part of the licensed area, thereby, reinforcing the inference that the license related to only part or parts of the Building. 1. Absent evidence of that identified area the Applicants had failed to establish the use of the Outdoor Terrace had been rendered prohibited by the operation of NSPSO. 2. In the alternative, if the Court found that there was evidence of use prior to 1983 of the sun deck by persons associated with the accommodation, the accommodation would be found to be a separate and independent use which cannot be converted into a hotel use for the service and consumption of food and beverages, as the provision of accommodation is either not a currently prohibited use, or, if prohibited, the separate and independent use would only permit persons resorting to the accommodation to use the Outdoor Terrace and not patrons of the hotel generally. The Council contended that this issue need only be determined if the evidence supported the Applicants' submission that the Outdoor Terrace had been relevantly used prior to the introduction of s 4.66(2)(c) of the EP&A Act. Findings on identification and character of the existing use 1. The task of determining the character of a planning use does not usually require the examination of legislation that may have a parallel application: see analogy in Sydney City Council v Ke-su Investments Pty Ltd and Others (No 2) (1983) 51 LGRA 186 at 205. However, in this case the planning use that was prohibited with the coming into force of NSPSO was a use defined by reference to the operation of another piece of legislation, namely the Liquor Act 1912. The relevant enquiry under the provisions of NSPSO is whether the Premises (in this particular case, relevantly, the Building as a whole) were premises specified in a publican's license issued under the Liquor Act, 1912, as amended by subsequent Acts. 2. On its face, this appears a relatively simple exercise of examining the publican's license in question and ascertaining from the face of the license what premises were specified. However, in this case the publican's license at the Relevant Date is not available. The question is whether inferences can be drawn from the evidence available as to what the specified premises were. 3. The Liquor Act 1912 contained a form of publican's license that was to be utilised when such a license was granted. I accept that there is an irresistible inference that such a form was used in the granting of the subject publican's license, as s 15 of the Liquor Act 1912 required the license to be in the form prescribed. The compelling inference available is that the publican's license for the Premises was in the form prescribed. 4. The form was prescribed in Schedule 1 of the Liquor Act Regulations 1922 and provided as follows (emphasis added): Schedule 1 LIQUOR ACT, 1912 Section 15. Publican's License. WHEREAS on the day of , 192 , the Licensing Court for the Licensing District in the State of New South Wales granted the application of for* [renewal of] a Publican's License *[held by him] for the premises known [or to be known] as the situated at , in the said District, and authorised me, the undersigned. Clerk of the said Court, to issue to the said applicant a license in pursuance of such grant : And whereas the sum of pounds, the fee payable in respect of such license, has this day been paid to me : Now, therefore, I, the Officer duly authorised in that behalf, do hereby issue to the said applicant this license to sell and dispose of liquor on the said premises but not elsewhere, on the first day of July, 192 , ** and continue to be in force until the thirtieth day of June, 192 , then next ensuing, both days inclusive—provided it be not forfeited or cancelled in the meantime. Given under my hand and the seal of the said Court, this day of , 192 . (L.S.) Clerk of the Licensing Court for the Licensing District. Fee, £ * Words in brackets to be ruled out where new license issued. ** After commencing date in case of license. 1. There is no definition of the term "premises" in either the Liquor Act 1912, the Liquor Act Regulations 1922 or the NSPSO. Accordingly, that word is to be given its ordinary meaning. The Macquarie Dictionary (online) defined the word in its plural form as meaning: 2. (plural) a. the property forming the subject of a conveyance. b. a house or building with the grounds, etc., belonging to it. 1. The broad dictionary definition appears consistent with the broad use of that term in both the legislative provisions and the license, namely a parcel of property including the building and grounds situated on that parcel. This broadness of descriptor is reinforced by the only references in the publican's license to an address or name of the Premises. Such application to the site by reference to the address is also consistent with the reference to the Premises to which the publican's license is held in the s 40A application referred to at [29] above and later copies of the relevant license. There is no "specification" in any part of the license either prescribed or later issued that limits the broad scope of the identification of the Premises to something less than the address. 2. Accordingly, there is available on the evidence an inference that the Premises which are specified in the publican's license are all that land and buildings at the nominated address. 3. To the extent that the Council suggest that the inference is not open due to the lack of evidence of the areas of the Building identified as available for the sale and consumption of liquor, I do not accept that such factors would operate to preclude the inference submitted by the Applicants. It is inappropriate for the purposes of the defined use "Hotel" in the NSPSO to attempt to constrain the extent of those specified premises by considering the other provisions of the Liquor Act 1912 that relate to how the licenced premises may be operated. The fact that the Liquor Act 1912 may contain provisions that relate to, for example, the parts of the Building from which liquor can be served, the requirement for plans to be lodged as part of any application, and the need to make an application to vary certain areas to which the license relates goes relates to the manner in which the use can lawfully operate under that Act. The only question for the purposes of the planning legislation is whether the Premises are specified in the publican's license, not the manner in which the Premises may be used pursuant to that license: Kayora at [38]. 4. Accordingly, it is appropriate on the evidence to draw the inference that (for the purposes of determining the application of the definition of "Hotel" in the NSPSO) the Premises specified in the publican's license was the whole of the land and the Building at the address on which the Blues Point Hotel was being carried and for present purpose this included the whole of the Building. 5. The evidence also supports the Applicants' submission that the Premises were not used for two separate and independent uses of hotel and accommodation. It was a precondition to the grant of the publican's license that accommodation of a specified type and quantum was provided at the Premises. The plans disclose that the operation of the accommodation of the use was a physically integrated component of the hotel use in that: there was no separate entrance to the accommodation; no separate reception or booking area for accommodation guests; the single facilities for Hotel and accommodation patrons for the supporting amenities such as dining, meal preparation and the like, together with the second lounge area at the ground floor. Each of these factors taken together indicated that, on the evidence in this case, the use for the provision of accommodation is either part of the hotel use simpliciter or at worst separate but ancillary use to the hotel use. The accommodation is so tied to the use as a hotel, so intermingled in the management and physical functioning of the Building that it is incapable of being sensibly separated from the other hotel uses. To apply the language of Foodbarn to these circumstances: … [the accommodation] part of the premises is used for a purpose which is subordinate to the purpose which inspires the use of another part, it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being used. 6. Accordingly, for the foregoing reasons I find that at the Relevant Date the whole of the Building at the Premises was being used for the purpose of a hotel as defined in NSPSO and was therefore, a prohibited use. Was the use of the Outdoor Terrace after the Relevant Date restricted by operation of s 4.66(2)(b)? 1. Section 4.66(1) of the EP&A Act precludes an environmental planning instrument from preventing the continuation of an existing use. However, the continuation of an existing use under s 4.66(1) is limited in that it does not authorise the continuance of an existing use in the manner or to the extent identified in the circumstances listed in s 4.66(2). Of relevance to the determination of the second agreed question for determination is the operation of s 4.66(2)(b) and whether there has been: any increase in the area of the use made of a building…from the area actually physically and lawfully used immediately before the coming into operation of the [NSPSO]…. Applicants' submissions 1. The Applicants submitted that s 4.66(2)(b) did not apply at all in the circumstances of this case as there has been no increase in the area of the use of the Building and therefore, no need to identify the actual physical use at the Relevant Date. 2. It was submitted that, if satisfied that the plans approved and the Building as constructed permitted the use of the Outdoor Terrace as a sun deck, such a use is to be characterised as for hotel purposes generally and s 4.66(2)(b) does not apply. It was contended that s 4.66(2)(b) only applies in circumstances where there has been an increase in the area of building used. In the circumstances of this case the fact that the building is there, the sun deck was approved and the sun deck had that designation on the plans means that there is no actual increase in the use of the building because the physical building that authorised that activity remains in situ. There is no need to establish actual physical use of such an area unless it is an area: never intended to be trafficable; and/or access had been prevented; and/or not approved for actual use; or if the building was used for separate and independent uses and the area of the parts of the building for each of those uses changed. This proposition was formulated by the Applicants at [15]-[16] of its supplementary submissions in the following manner: 15. Properly construed, section 4.66(2)(b) is not directed to questions of whether there was an actual physical use of part of a building at the relevant day. The enquiry is only relevant if there has been an increase in the area of use made of the building by an existing use. There could only be an increase in the area of the use made of a lawfully constructed existing building if it were concluded first that the existing use as a hotel was confined to the public bar areas on the ground floor and the uses of the first floor were regarded as separate and distinct. 16. It is, therefore, not relevant to enquire as to whether rooms in a building, where the building more broadly had been used for an existing use, were actively physically used at any point in time unless there is an increase in area physically used. In the context of a part of a building such as the outdoor terrace forming part of the Blues Point Hotel where it was constructed as an integral part of the hotel, it is almost impossible to conceive of how there could be an increase in the area of a building actually physically used unless there was some identifiable and discrete part used for a different planning purpose into which the existing use has expanded. Alternatively, if alterations had been made having the effect of sealing off the door to the terrace from the hotel so that it could not be used for any activity at all might such a circumstance arise. As long as the terrace has been in existence, accessible and available for whatever hotel uses were desired, there has been no physical increase in the area of the building used for hotel purposes. Council's submissions 1. The Council submitted that there was no evidence at all and no inference available that at the Relevant Date the Outdoor Terrace had ever been used for any purpose other than a roof. Whilst the plans indicated a proposal that the Outdoor Terrace was a "flat roof or sun deck" such indication was not evidence of actual use. 2. The concept of actual physical use cannot incorporate a notion of "capacity" or use in the future, it must, on the evidence, disclose an actual physical use of the area of the Building comprising the Outdoor Terrace. Findings 1. The determination of the competing submissions in this matter requires a determination of the proper construction of relevant existing use provisions in s 4.66. From the statutory context, whilst the concept of an "existing use" is defined in s 4.65 the operative provision relating to the management of such a defined use is contained in s 4.66(1). The concept of the continuation of the existing use therein referred to, however, is, by the terms of s 4.66(2), not intended to authorise the continuance of such a use in a manner which would encompass any of the listed circumstances in the sub-paragraphs of that section. Each of the listed circumstances relate to the limitation on the use in the future beyond the date on which the use became prohibited. 2. The relevant meaning to be ascribed to provisions such as s 4.66(2)(b) has been the subject of judicial consideration largely in the context of the continuation of other lawful uses under s 4.68 where the same provision as s 4.66(2)(b) was inserted into the predecessor of s 4.68 in 1986. Whilst the language used is the same in each section the relevant date of operation is not. Notwithstanding the difference in operative date, the past considerations of the meaning of s 4.68(2)(b) are of assistance in construing the terms of s 4.66(2)(b). 3. In Vaughan-Taylor v David Mitchell-Melcann Pty Ltd and Minister for Minerals and Energy (1991) 73 LGRA 366 it was accepted that the statutory intent of a provision such as 4.66(2)(b) was to identify the extent of the existing use to something that was an actual physical use, rather than a future intended use. As expressed in that particular factual context, being a quarry (and incorporating some obiter dicta with respect to the application to a building) Mahoney JA stated at 370: …But it was, it is conceded, the purpose of par (b) to place some restriction upon what, under the law so understood, existing use rights may authorise. And it is the restriction imposed by the words "actually physically and lawfully" in that paragraph which must be determined. Certain things may be said about the operation of the paragraph. First, it refers to the "area" of use. In my opinion, it does not prevent the company in the present case digging a mine or quarry which is deeper than existed before the relevant date. The paragraph is directed to the lateral area of the land used: it does not, in such a case as the present restrict the cubic content of what is done. In stating the matter in this way, I am conscious that it may be necessary, in a particular case, to examine the impact of the paragraph upon, for example, the use of a building. I do not mean by what I have said that, for example, an existing use of an area on one floor would authorise the expansion into a number of upper floors or generally on the same floor. The impact of the paragraph in such a case will require consideration according to the particular circumstances. 1. In South Sydney City Council v Houlakis and Teakdale Pty Ltd (1996) 92 LGERA 401, which was, again, a matter dealing with the former s 107 Beazley JA observed: Section 109(2) to the extent it qualifies the scope of existing use rights (or perhaps more accurately "privileges": see Vanmeld Pty Ltd v Fairfield City Council (1992) 75 LGRA 374) restores to local councils, planning control over the continued use of a building, work or land affected by a planning instrument. To that extent, the earlier authorities on the meaning of "existing use of land": viz Parramatta City Council v Brickworks Ltd (1972) 128 CLR I; 26 LGRA437; Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270 and Norman v Gosford Shire Council (1975) 132 CLR, 83; 31 LGRA 368; are of limited, if any, assistance: see Clarke JA in Ku-ring-gai Municipal Council v Mobil Oil Australia Ltd Supreme Court of New South Wales, Court of Appeal, Kirby P, Mahoney, Clarke JJA, No 40520 of 1990, 3 June 1992, unreported). 1. The statutory language and the context of the legislative provisions as a whole indicate that it is intended that on the date that an existing use becomes prohibited it is limited in its nature and scope to the nature and extent of that use on that date. Such concept was described by Basten JA in Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 241 LGERA 321 at [27] as: As noted above, existing use rights may generally be taken to have been frozen at two dates, namely as to the nature of the use, when planning controls first prohibited such activities on the land, either absolutely or subject to consent; and, as to scope and intensity of the use, in February 1986 when the Planning Act was amended to require consent with respect to the extension or enlargement of such rights. 1. Taking into account those statutory objects together with the text and context of s 4.66(2)(b) it is apparent that it operates to limit the use of the building work or land to those areas actually lawfully used in a physical sense, notwithstanding that the use, prior to the date it became prohibited have anticipated that at some point in the future other areas of the building work or land would be physically used for the same purpose. 2. In this case, the question of whether s 4.66(2)(b) limits the use of the Outdoor Terrace at the Relevant Date requires a determination on the evidence of the extent to which the area of the Outdoor Terrace was actually physically lawfully used prior to the Relevant Date. If the current use of the Outdoor Terrace involves an increase in that area then it does not comprise a continuation of the existing use for the purposes of s 4.66. 3. There is no dispute that the ground floor of the building enjoys existing use rights for the purposes of a hotel. The Outdoor Terrace unquestionably functions as the upper enclosing portion of the Building (the roof) of the areas designated as dining room, servery, kitchen and larder on the ground floor. Therefore, that part of the Building is used as a hotel as it encloses the areas below and provides the function of a roof for physical protection of the areas used as a hotel below. That function and use, however, is limited in space to the upper surface of the roof. The acceptance that the roof forms part of the hotel building and is therefore, used for that purpose does not then automatically extend to the use of the surface of the roof as, in effect, a floor for the use of the air space above it for hotel purposes. This delineation of the extent of the roof use appeared to be accepted by senior counsel for the Applicants where he stated: If it was just a roof and it just said roof, I wouldn't be standing here (Tcpt 46/10). 4. The Applicants must therefore establish that the Outdoor Terrace was actually physically and lawfully used for more than a roof. On the evidence from the approved plans the evidence does disclose that the Outdoor Terrace was intended to be accessible. Such a fact is evidenced by the provision of a door of a similar type and design as other doors provided on the first floor giving access to outdoor areas (such as the verandah from the bedroom and the balcony from the landing). Further, like the other external doors on this floor it was covered by a concrete awning, again indicating use and accessibility. The Outdoor Terrace was enclosed by a parapet that, whilst serving the architectural aesthetic purpose, also prevented people accidentally falling from the area. These physical attributes together with the plan reference on the area of "or Sun Deck" indicate that the Outdoor Terrace would be lawfully able to be used for the purposes of a sun deck without any further physical provision being made to the area to facilitate such use. On the evidence, I accept that the Outdoor Terrace was designed and constructed to permit its use as a sun deck in addition to its use as a flat roof. 5. However, I do not accept the Applicants' submission that such a finding of the capacity to use is sufficient to establish the asserted existing use rights. The right to continue an existing use as provided for in s 4.66(1) does not authorise: any increase in the area of the use made of a building:…from the area actually physically and lawfully used immediately before the coming in to operation of the [NSPSO]: (s 4.66(2)(b)). This provision relates to the determination of the area of the building actually physically used and not the area of the building constructed or the area of the building capable of being used. 6. The Applicants' contention that the question asked only arises if there is evidence there has been no physical increase in the area of the building used for hotel purposes fails to give the reference to actual physical use or the specification of a point in time any work to do. If it was intended that a building could be used for any lawful purpose for which it was constructed irrespective of the extent of the actual physical use at the relevant date then there would be no need for the clause to apply to a building, as the area would be dictated by the physical form of the building as opposed to areas of use. 7. There is some tension in the Applicants submissions as reproduced at [69] above where it is suggested on the one hand that the physical form of the building is the extent of the area used but also concedes that there may be parts of a building that even though constructed are not actually used. The tension is attempted to be resolved by the application of a test of "intention" and "capacity", that is, if the area of the building is intended to be used for a purpose and such use is capable, without more, of being undertaken then that part of the building is an area of the building being used. On that basis, a change to an actual use of that area is not an increase in the area of the use of the building. 8. To accept the Applicants submission as the correct construction of the text of s 4.66(2)(b) requires the importation of words relating to capacity and intention which concepts are in direct opposition to the statutory language of actual physical use. On a construction of s 4.66(2)(b) the text and the context indicate that this provision does not relate to intended or capable future use but actual physical use at the relevant date. 9. Therefore, on a proper construction of s 4.66(2)(b) it is necessary to ascertain from the evidence the area of the building actually physically and lawfully used at the Relevant Date. 10. As to the actual physical use of the area above the roof that comprises the Outdoor Terrace there is no actual evidence in this case that the area of the Outdoor Terrace was used for any purpose other than a roof at the date of the coming into force of the NSPSO. That is, there is no evidence that the area above the surface of the roof was used for any purpose at all. 11. An inference that the Outdoor Terrace was actually used for a sun deck is also not one that would be drawn from the evidence available. The construction of the Building in the present form would have been the same whether the Outdoor Terrace was to be used as a roof or as a sun deck. The reference on the plans to the nominated uses being a "flat roof or sun deck" indicates that an election could be made to use it as a sun deck in addition to the flat roof function. The construction of the building does not, of itself, indicate that such an election was made. Further, at the date of the s 40A application referred to at [29] above the Outdoor Terrace was referred to as a "roof" further reinforcing the inference that the area of the Outdoor Terrace above the surface of the roof it was not being used at that date for any purpose of a sun deck or otherwise. 12. For those reasons, the Applicants have failed to establish that the Outdoor Terrace was used for a purpose other than a flat roof at the Relevant Date and therefore, has failed to establish that the contended existing use rights are enjoyed for the Outdoor Terrace as a floor and air space for hotel uses. Does the current use of the Outdoor Terrace constitute an enlargement, expansion or intensification of the existing use? 1. The Council contended that if there was evidence of the use of the Outdoor Terrace prior to the Relevant Date that the current use of the Terrace would not be authorised by s 4.66(1) as it was not permitted by virtue of the operation of s 4.66(2)(c) as the current use comprised an enlargement, expansion or intensification of an existing use since the date of operation of that provision in 1986. 2. In light of my findings at [88] above, it is not strictly necessary for this issue to be determined, however, I do so for completeness. Applicants' submissions 1. The Applicants' submissions relating to this issue focussed almost exclusively on the concept of "intensification" and not the concept of "enlargement or expansion" of the existing use. It is assumed that such a focus was a consequence of the Applicants contending that the existing use included the use of the Outdoor Terrace for a sun deck and therefore, there was no question to be addressed as to the enlargement or expansion of the existing use. 2. As to the suggestion by the Council that the use of the Outdoor Terrace for the current use was an intensification of the existing use the Applicants submitted that such assertion does not call for an enquiry as to the specific activities carried out in particular parts of the building. Once the whole building is characterised according to the principles governing existing uses as a hotel the only question is whether the existing use as a hotel has intensified. The fact that one part of the Premises may become more intensively utilised does not establish the intensification of the existing use as a whole. The question of whether an existing use has intensified must be done at a level of generality applying to the whole use and not the particular activities to which the Premises is put. The Council has not established that there has been an intensification of the existing use. 3. Notwithstanding the submissions on intensification the Applicants' senior counsel conceded that the use of the dispute area after sunset would represent an intensification of the use as it would comprise an extension of the hours of use of the "Sun Deck" – which could only reasonably be considered to have been used during daylight hours. Council's submissions 1. If, as was contended by the Council, it was accepted that the area of the Outdoor Terrace had not been used for the existing use at the Relevant Date then the current use must, as an indisputable consequence comprise an enlargement or expansion of the hotel use. 2. If, contrary to the Council's contention there was evidence that the Outdoor Terrace had been used prior to the date of the commencement of s 4.66(2)(c) in 1986 the current use is an intensification of the prior use. The evidence indicates that prior to 1986 there is no evidence of patrons of the hotel consuming alcohol and food on the Outdoor Terrace in the numbers and with the consequential amenity impact that have been observed by the neighbours since 2016. 3. The current use of that area for occupation by persons was an "enlargement, expansion or intensification" of the existing use over and above that in existence at 1986. Findings 1. The resolution of this issue requires an assessment of the use as it existed immediately before the coming into force of the provision in February 1986 and the use since that date. Then, it is appropriate to consider whether any change in that use can be properly characterised as an enlargement, expansion or intensification. 2. The terms "enlargement", "expansion" and "intensification" are not defined in the EP&A Act and are therefore, to be given their ordinary meaning. As was considered by the Court of Appeal in South Sydney City Council v Houlakis and Teakdale Pty Ltd (1996) 92 LGERA 401, which related to the extension of trading hours of a hotel that had the benefit of existing use rights for the continuation of that use. Beazley JA at 406-7 considered these concepts in the following manner: The three words used in s 109(2)(c) are each words of ordinary English meaning. They are each separated in para (c) by the word "or", which, upon a proper construction of the paragraph, is a true disjunctive. Thus, the paragraph is not to be read "ejusdem generis" and each word is to be given its full and ordinary meaning. It is appropriate, when considering the ordinary meaning of words, to use in aid, their dictionary meaning. The dictionary meaning of each word is as follows: Enlargement the act of enlarging; increase; expansion; amplification. [Enlarging] to make larger; increase in extent; bulk or quantity; add to: The Macquarie Dictionary. an increase in size, extent or scope: The Shorter Oxford English Dictionary. Expansion I. The act of expanding. 2. the state of being expanded. 3. the amount or degree of expanding... [Expand] to increase in extent, size, volume, scope: The Macquarie Dictionary. spread or stretch (a thing) out, esp. to its fullest extent, extend, open out ... widen the boundaries of increase the area, scope etc., of enlarge, dilate: The Shorter Oxford English Dictionary. Intensification [Intensify] to make intense or more intense: The Macquarie Dictionary. The action of intensifying. [Intensify] Make intense; augment, strengthen, heighten, deepen: The Shorter Oxford English Dictionary. It is apparent from the above definitions that the words have overlapping meanings. It is not necessary, for the purposes of this appeal to explore their similar or differing nuances. In my opinion, the operation of the hotel for the' extended hours for the sale of on-site liquor is an "enlargement" of the use of the premises. It does not matter, therefore, whether the extended hours of operation have resulted in increased patronage, increased liquor sales, or increased revenue from one or more areas of the operational centres of the hotel. Whether those matters are relevant factors to be considered in determining whether there has been an "intensification" in use does not arise on the approach which I consider should have been taken on the facts here. 1. In the same matter Santow JA observed at 408: In that statutory context, and taking into account the various dictionary meanings set out in the judgment of Beazley JA concerning the disjunctive expression "enlargement or expansion or intensification", it is natural enough to attribute a time dimension to enlargement. That time dimension may operate independently of whether there be also an intensification, in the sense of heightening or deepening the use being made. There may, in particular circumstances be both, as illustrated by the example of extending a tennis use from day to night, depending on the facts. 1. Again, in the same matter Clarke JA at 404: …The real question is whether what has been established falls within the notion of increase embodied within s 109(2)(c). I have no doubt that it does. Nothing is to be gained, in my opinion, by inquiring whether the increase in trading hours effected an enlargement (which seems appropriate to areas of use), expansion (which must involve more than an enlargement) or intensification… 1. Applying these conjunctive concepts in accordance with the ordinary meaning of the words, for the purposes of s 4.66(2)(c) the relevant question is: what was the extent of the hotel use as at 1986 and has that existing use been enlarged, expanded or intensified? The evidence as to that period is from a single resident from an adjoining property. The uncontested evidence of Ms Thurston who has owned a neighbouring property since 1971 where she resided for 12 months in 1971, 6 months in 1979 and has lived there permanently since 1989. At paragraph [3] of her affidavit she attests that: …However, the top level outdoor terrace which is located at the rear of the first floor (third floor from the downhill side of the hotel) and which looks down on French Street and My House and which is outlined in yellow on Annexure 'A' (Top Level Outdoor Terrace), was to the best of my knowledge and recollection, never used until 2016. Prior to that time however, in about late 2015 I had noticed a wooden structure erected on the Outdoor Terrace, visible from the street. I was not aware of what the wooden structure was or what it was used for but was later informed that it was an aviary. 1. She then gives evidence relating to a visit to the Premises in about 2011 or 2012 where she states at [6] and [7]: 6. Ken then showed me the view from the room that was then used as the dining room and asked me to accompany him upstairs to the outdoor area we are referring to as the Top Level Outdoor Terrace. 7. I followed Ken to the Top Level Outdoor Terrace. I observed that the Top Level Outdoor Terrace was an empty, open space, devoid of any furniture or structures or attempts at beautification and it did not appear to be in use. Ken and I had a conversation in words or words to the following effect: Ken: How would you feel about this area being open to the public? Me: I would object to that. 1. The evidence of Ms Thurston is supported by the affidavit evidence of Dr Vandervord who is a local resident and was an employee at the Premises from late 2006 for about 12 months, such evidence was also uncontested. She attests to the following: 9. I cleared and wiped down tables on the ground floor outdoor terrace which directly adjoins French Street however the Outdoor Terrace was not an area used by patrons of the Hotel during my employment and therefore during my time as an employee of the Hotel I never had any reason to go onto the Outdoor Terrace. 10. Over the time I worked at the Hotel, I observed employees and in particular Nick Thompson, who is the son of the licensee at the time, Ken Thompson, using the Outdoor Terrace. Nick Thompson would go out on the Outdoor Terrace on his breaks to smoke with other employees. I never observed any patrons of the Hotel that I had served at the bar access the internal staircase to the First Floor in order to use the Outdoor Terrace. I never went onto the Outdoor Terrace myself until 11 October 2016 when I attended a meeting at the Hotel with other residents. … 12. In my observations, the use of the Outdoor Terrace by patrons of the Hotel for the purposes drinking and smoking commenced in about May 2016 as it was at about that time the noise disturbances from the Outdoor Terrace commenced and when I began noticing patrons standing on the Outdoor Terrace holdings drinks and smoking. 1. This evidence both before and after the relevant 1986 date, absent any evidence or available inference to the contrary, is sufficient to establish to the relevant standard that the Outdoor Terrace was not being used at the relevant 1986 date. 2. Having regard to the whole of the evidence, I accept that the Council has established to the relevant standard that the Outdoor Terrace was not used by hotel patrons for the occupation of the Outdoor Terrace or for the consumption of food and beverages at the relevant date in 1986. Thereafter, and from 2016, the evidence discloses (both from the resident's and the Applicants' plan of management at [36] above that the Outdoor Terrace has been made available for seating, consuming food and beverages and is serviced by the hotel staff. Accordingly, the current use of the Outdoor Terrace is either or both an enlargement or expansion of the existing use from the existing use at 1986. 3. In the alternative, even on the assumption (despite the lack of evidence) that the Outdoor Terrace had been used as a sun deck such use would comprise a use such as that defined in the Macquarie Dictionary (online) to mean: noun 1. a flat roof or platform adjoining a house, hotel, etc., used for sunbathing. 1. If the Outdoor Terrace had been used by persons resorting to the hotel for accommodation and even if those persons did consume food and beverages whilst taking the sun, I accept, as was contended by the Council, that the current use of the Outdoor Terrace would represents an intensification or enlargement of an existing use contrary to s 4.66(2)(c). The use by residents of the accommodation was limited in scope to a class of persons, being those in residence at the Hotel. Further, the use as a sun deck would be limited in time to daylight hours. 2. The current use has expanded the class of persons able to use the Outdoor Terrace to all patrons of the hotel for greater periods of time and not for the primary purpose of taking the sun. These changes can reflect in both an enlargement and an intensification of the use. Conclusion 1. For the reasons outlined above, I have concluded that the Applicants have failed to establish that the current use of the Outdoor Terrace is the continuation of an existing use within the meaning of s 4.66 of the EP&A Act. Accordingly, the Applicants have not established that they are entitled to the declaration of existing use that they have sought in the Summons. 2. Accordingly, the Summons should be dismissed. 3. In proceedings such as these the usual order is that costs would follow the event. In that circumstance the usual order would be that the Applicants would be ordered to pay the Council's costs of the proceedings. The parties have not addressed me as to costs. I propose to reserve costs, if either party wishes to contend that the usual order not be made notice is to be given to my associate within 7 days. Absent such notice being received I will make the usual order for costs. Orders 1. The Court orders that: 1. The Summons is dismissed; 2. Costs are reserved; 3. Any party that wishes to make an application for costs otherwise than the usual order for costs pursuant to r 42.1 of the Uniform Civil Procedure Rules 2005 must do so within 7 days. Absent such an application being notified within that time the Applicants will be ordered to pay the Council's costs of the proceedings; and 4. The exhibits are returned. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 March 2021