MEAGHER v BOTT and ANOR [1996] NSWCA 356

MEAGHER v BOTT

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, HANDLEY and COLE JJA 4 October 1996, 15 November 1996 [1996] NSWCA 356

CONSTRUCTION of s40 Liquor Act 1982 — Hill v King (1993) 31 NSWLR 654 considered.

Clarke JA Mr Anthony Whealy QC is a very clever barrister. He persuaded the Full Bench of the Licensing Court, despite the clear note of caution sounded by Smart J, and this Court in Hill v King (1993) 31 NSWLR 654 at 661 (and Smart J [10 June 1993 unreported p18]), to embark upon an enquiry whether a Development Consent granted by Blacktown City Council (the Council) was still in force and effective at the date the relevant licence applications were lodged, and were still effective at the time of the hearing. What is more he succeeded in securing from that Bench a ruling that the approval was not effective at the time of the hearing. That ruling led to a determination that the Licensing Court had no jurisdiction to grant the application despite the satisfaction of the Justices that there was no merit in the various objections taken and that, were it not for the jurisdictional ruling, the application would have been granted.

What makes the ruling even more surprising is that the Council was of the view that the development consent was effective at all relevant times and, acting on that view, the Council had issued building approvals on a number of occasions extending to 27 October 1994. As the Bench noted the applicant for the conditional grant could lawfully carry out the building works, at least as far as the Council was concerned, yet, because it took a different view, the applicant must fail before it.

What led the Full Bench to that conclusion? It seems that it was s40(1) of the Liquor Act 1982, which is in these terms:

"APPLICATION FOR CONDITIONAL GRANT