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 40. (1) An Application: (a) for a licence; (b) for removal of a licence; (c)... (d)... (e)... may be made as a conditional application if the premises to which the licence will relate, or to which the licence is removed, are premises proposed to be erected, or premises proposed to be added to or altered, in accordance with an approved plan lodged with the application or are premises already erected in respect of which there is lodged with the application any consent required under another Act for the proposed use, of the premises." An approved plan is defined in s40(6) to mean a plan of the proposed alterations with relevant consents and approvals under the Local Government Act 1919 (1993) (LGA) and the Environmental Planning and Assessment Act 1979 (EPA). 2 UNREPORTED JUDGMENTS It is to be observed that there is nothing in s40(1) and s40(6) which imposes an obligation upon an applicant to establish that an approval remains effective until the final determination. Nor is there expressed in those subsections any requirement that an applicant establish, at the time of lodging an application or at the hearing, that, for instance, a development approval granted more than two years prior to the lodging of the application in the Licensing Court remained effective as a consequence of the commencement of the development or a longer grant under s99(1)(a) of EPA. All that the section requires is that the applicant lodge its plans and the relevant approvals for the carrying out of the work shown in the plans. Once the applicant does that it satisfies its obligation under s40. Further, there is nothing in s40 which, expressly or impliedly, requires that the Licensing Court inquire into the validity or continued effectiveness of the approvals. That view is consistent with the relevant legislative purpose underlying the amendments to the Liquor Act (of which s40 was one) in 1990. That purpose was to reduce the duplication arising from the operation of the earlier Act resulting from the need to obtain approval for building works, whether they involved the erection of new premises or alterations to existing licensed premises, from both the Licensing Court and the Local Council. Henceforth responsibility for granting those building approvals was placed squarely on the shoulders of councils who also had the responsibility of ensuring compliance with LGA and EPA. Of course the Licensing Court was not completely uninterested in the state of licensed premises. Its power to ensure that licenses were not granted in respect of unsuitable premises was secured by s40(5) (the effect of which is to require an applicant to obtain a further approved plan showing amendments required by the Court) and the grounds of objection in s45 (including s45(3)(c)). In removing duplication and in dividing the supervisory roles in this way the Legislature left it to the local councils to carry out those administrative local government and environment roles and the Licensing Court to ensure the efficient administration of the Liquor Act, which involves, among other things, ensuring that the premises are suitable as licensed premises. Nowhere in the liquor Act is there to be found a direction to that court to superintend, or double check as it were, the work of local councils. On the other hand, as s40(5) and s45(3)(c) make clear, the fact that approved plans had been lodged did not remove the power of the Licensing Court to refuse to grant a licence because the proposed premises were unsuitable. Mr Whealy's answer to these propositions fastened on s58 of the Liquor Act which read: "DURATION OF CONDITIONAL GRANT 58. If an application is conditionally granted under s40, the grant has effect only while an approval or consent required by another Act for the use, erection, addition or alteration to which the grant relates has effect." He submitted that the legislature couldn't possibly have contemplated that the Licensing Court might be required fully to hear out and grant an application for a conditional licence only to find it had wasted its time because the relevant approval had ceased to have effect - either because it had lapsed or been reversed by the Land and Environment Court. I am not impressed by that argument. S58 is relevant only after the grant of a conditional licence. More to the point there are, relevantly, two regulatory bodies governing the carrying out of developments, being the construction of, or URJ MEAGHER v BOTT (Handley JA) 3 alterations to, premises intended to be used as licensed premises, and they complement each other. Whether an approval has ceased to be effective is no concern of the Licensing Court in determining whether to grant a conditional licence. If the approval has ceased to be effective then the proposed building works would be unlawful and the relevant council would prevent their execution. In that case a final grant could not be made because of s60(2) of the Liquor Act. What is more s58 is expressed in terms which indicate that it has an ambulatory effect. If, for instance, a development approval granted by a council was reversed by the Land and Environment Court after a conditional grant had been made that grant would cease to have effect. If, then, this Court reversed the Land and Environment Court decision and reinstated the approval the conditional grant would again have effect. It is not to be supposed, for instance, that, if the Land and Environment Court decision was delivered while an application was part heard in the Licensing Court, that court would immediately dismiss the application against the protests of the applicant. The two regimes traverse their respective paths and the provisions of the relevant legislation ensure that licenses are not granted in respect of premises not approved, for local government and environmental purposes, by the local council or not approved, for licensing purposes, by the court. It may be that on occasion a conditional grant will be made after a lengthy hearing but, because of developments after the making of an application, the proposed development of the premises can't proceed. That may occur because the development approval lapses and the council will not reinstate it. Similarly, an applicant for a conditional licence may succeed, after a lengthy hearing in the Land and Environment Court, in obtaining a development approval but fail to obtain a licence because, for instance, the Licensing Court is not satisfied that the proposed premises are suitable. These are, as it seems to me, possibilities that arises inevitably from the complementary processes but that is no reason to find implied in the Liquor Act a requirement that the Licensing Court satisfy itself that the Local Council is doing its job properly. In my opinion Abadee J was correct. The Full Bench erred and the appeal should be dismissed. I would add that I agree, in general, with Cole JA's judgment except insofar as I would wish to reserve my opinion on the manner in which the Full Bench conducted the joint hearing of the applications. I agree with the orders proposed by Cole JA. Handley JA In this appeal I have had the benefit of reading in draft form the reasons for judgment of Clarke and Cole JJA. They have set out the facts, the history of these proceedings, and the relevant legislative provisions and I need not repeat these matters. This appeal turns on the effect of s40(1) and s40(6) of the Liquor Act. In particular it turns on the requirement in s40(1) that "an approved plan" be lodged with applications such as that by Mrs Szubert for the grant of a conditional off-licence (retail), and by Mr Bott for a conditional removal of such a licence. S40(6) defines an approved plan as follows: "\.. approved plan... means a plan of the proposed premises, or of the proposed addition or alteration. that is accompanied by: (a) each approval that, by the Local Government Act 1993, or any other Act, is required for the carrying out of any work represented by the plan; and (b) any consent required under the Environmental Planning and Assessment Act 1979 for the carrying out of that work". 4 UNREPORTED JUDGMENTS S40(1) also applies to applications in respect of existing premises which require no alteration, but in such cases there must be lodged with the application "any consent required under another Act for the proposed use, or proposed change of use, of the premises". Thus the expression "required" is found in both provisions. The application for the grant of a conditional off-licence (retail) for the Plumpton premises was made on 16 March 1993. It was accompanied by a development consent of 26 June 1991 and a building permit of 22 January 1993 granted by the Blacktown City Council, both of which were then current. No question was raised as to the initial validity of this application. The application for the conditional removal of an existing off-licence (retail) to the Plumpton premises was lodged at Forbes on 18 January 1995. It appears from the reasons of the Full Bench of the Licensing Court that the original development consent of 26 June 1991 was lodged with this application, but it is not clear whether any other documents were lodged at the same time in purported compliance with the requirements of s40(1). A building approval issued on 27 October 1994 may have been lodged. This was not referred to in the reasons of the Full Bench perhaps because there was no challenge to the validity of the application in this respect. The appellant took two legal objections to the removal application before the Full Bench. The first was that s40(1) had not been complied with because the consent that was lodged had lapsed before the application was made. The second was that the applicant had to establish not only that the requisite consent and approvals had been lodged with the application, but that they were still in force when the application was heard and determined. The Licensing Court upheld both objections. I am satisfied for the reasons given by the other members of the Court that an applicant who has complied with s40(1) need not establish that any development consent or building approval lodged with the application remains in force at a later date. A conditional grant under s40 can only be availed of by the grantee if he holds all other licences, consents and approvals required for its effective use. See Commercial Radio Coffs Harbour Ltd u Fuller (1986) 161 CLR 47. In my opinion this is the true and only effect of s58 of the Liquor Act. The section has an ambulatory operation so that a conditional grant ceases to have effect on the lapse of any necessary approval or consent, but will revive if a further approval or consent is obtained. The consent lodged with the application was dated 26 June 1991. S99(1)(a) and s99(2)(a) of the Environmental Planning and Assessment Act. as then in force, provided that a consent should lapse after 2 years unless the development, the subject of that consent, was physically commenced within that period. Provision was made by s99(3) for this period to be extended to 3 years in certain circumstances, but no application for such extension appears to have been made. The consent therefore lapsed on 25 June 1993 unless the development had been commenced in the meantime. On 8 June the Local Government (Consequential Provisions) Act 1993 was assented to. Schedule 2 in CL8 provided that consents should remain in force for 5 years, but it did not commence until 1 July. Schedule 3 cll provided that existing consents which had not lapsed before the commencement of Schedule 2 should remain in force for 5 years. The consent of 26 June 1991 was not extended by the new Act. URJ MEAGHER v BOTT (Handley JA) 5 The Council granted a fresh building approval on 27 October 1994. It also stated in letters dated 23 July 1993, 28 June 1994 and 10 August 1995, which were tendered before the Licensing Court, that in its opinion no fresh development consent was required because construction work relating to the development had been physically commenced within the 2 years. The Licensing Court however found that relevant construction work had not been physically commenced before 25 June 1993, and that the consent had lapsed. The Court therefore held that it had no jurisdiction to grant the application for conditional removal. A tribunal of limited jurisdiction cannot deprive itself of jurisdiction by an erroneous finding of fact or law. Such jurisdictional findings can be reviewed in proceedings in the nature of mandamus, and if they were erroneous the tribunal can be directed to exercise its jurisdiction according to law. See The King v Blakeley (1950) 82 CLR 54 at 90-3 per Fullagar J. An applicant wishing to challenge findings of jurisdictional fact by the Licensing Court has no effective remedy in an appeal under s146 of the Liquor Act which is limited to questions of law. Proceedings for judicial review in the nature of mandamus are the only effective remedy for an applicant in such a case, just as in the converse case proceedings in the nature of prohibition will be the only effective remedy for an objector. In my opinion the comments of this Court in Hill v King (1993) 31 NSWLR 654 directed against the abuse of judicial review proceedings by objectors prevailing at that time have no application where such proceedings are the only effective remedy. Mr Bott elected to pursue his right of appeal under s146 but on that appeal the Supreme Court had no power to review the finding by the Licensing Court that relevant work had not been physically commenced before 25 June 1993. I would add the applicant has never contended that the building approval of 27 October 1994 operated as a fresh development consent. Abadee J held that the Licensing Court had no jurisdiction to determine for itself, contrary to the views of the Council, that relevant construction work had not been physically commenced before 25 June 1993. Abadee J and my brethren consider that this result follows from the dicta of this Court in Hill u King above. I was a party to that decision and remain of the views there expressed. However I have the misfortune to differ from the other members of the Court in thinking that the present case raises a different question. In that case the objectors sought to challenge the validity of a building approval on the ground that development consent was also required but had not been granted. The local Government Act 1919, as it then stood, required the Council to satisfy itself of the planning position before granting building approval. S314(1)(b) in terms required the Council to be satisfied that the proposed building, if erected, would comply with the Environmental Planning and Assessment Act before granting building approval. $314(4) further provided that a building application relating to development which required consent under the Environment Planning and Assessment Act "shall not be approved" unless consent had been granted. In Hill v King the building approval was valid on its face. The challenge propounded by the appellant in that case would have required the Licensing Court to determine on Wednesbury principles whether the decision of the Council to grant the building approval within that legislative framework was totally unreasonable or was vitiated by legal error. See generally Minister for aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. 6 UNREPORTED JUDGMENTS The Land and Environment Court has jurisdiction in Class 4 proceedings to review the exercise of a function conferred by a planning or environmental law and to make declarations of right. See Land and Environment Court Act s20(2)(b), s20(2)(c). Those laws included Ptl1 (Building Regulation) of the Local Government Act 1919 and currently include the equivalent provisions of the 1993 Act. S71(1) confers jurisdiction on the Land and Environment Court in such cases which is exclusive of the original jurisdiction of the Supreme Court. Although the jurisdiction of the Land and Environment Court is not in terms made exclusive of any jurisdiction possessed by other courts to entertain collateral challenges, on judicial review grounds, to a building approval etc, it is arguable that this is implied. In any event a building approval granted by a council apparently in force would remain in force for practical purposes whatever opinion might be formed and expressed by the Licensing Court. See Calvin v Carr (1980) AC 574 at 589-90. The Land and Environment Court was the only court that could grant relief by declaration or injunction which would strip the council's decision of operative effect. In the circumstances in Hill v King it would have been appropriate for the Licensing Court to decline to entertain any collateral challenge leaving the objector to his right to propound such a challenge in the Land and Environment Court itself. See Environmental Planning and Assessment Act s123 which enables any person to bring proceedings in the Court to restrain a breach of the Act. The position in the present case is radically different. The applicant lodged a development consent which on its face had expired. The applicant asserted that a new consent was not required because construction work relating to that development had been physically commenced. This did not involve a collateral challenge, on judicial review grounds, to a development consent which on its face was valid and in force. Moreover the commencement of the Local Government Act 1993 has significantly altered the powers of a council to grant building approval. See Local Government Act 1993 s89. Chapter 7 does not include any provision equivalent to s314 of the repealed Act. In these circumstances the building approval granted under the new Act on 27 October 1994 did not necessarily import a decision by the Council that development consent was not required for the carrying out of that building work. The Council's opinion that a further development consent was not required conveyed in its various letters was no more than that. The Council had made no decision having operative effect and, "political" realities aside, its opinion carried no more weight than that of any other person. The objection to the continued operation of the consent involved no collateral challenge to any decision of the Council having operative effect. S40(1) imposes a condition precedent to the jurisdiction of the Licensing Court. See Hill v King (above). An applicant must prove that this condition precedent has been satisfied and where a consent lodged with an application appears on its face to have lapsed in my opinion the applicant must establish that it remains in force. The Licensing Court is not bound to accept the opinion of the Council on such a question when that opinion has no operative effect under any relevant statute. It is not bound by the rules of evidence (Liquor Act s12(2)(a)). It was free, if it chose, to act on the Council's opinion, but it did not err in law in refusing to do so. URJ MEAGHER v BOTT (Cole JA) 7 In my opinion the Licensing Court, in the exercise of its discretion, should have informed the objector that it would act on the opinion of the Council unless the objector obtained a decision to the contrary from the Land and Environment Court if necessary adjourning the licensing application until the decision of the Land and Environment Court was known. If the objector was correct, the applicant was proposing to build in accordance with the 1994 building approval without obtaining development consent where that was required and in such a case the Land and Environment Court has jurisdiction to grant declaratory and injunctive relief. However in my opinion the Licensing Court did not err in law in investigating the validity of the Council's opinion and finding that the consent had lapsed. In my opinion the appeal to this Court should be allowed with costs, the order of Abadee J set aside, and the appeal to the Supreme Court dismissed with costs. Cole JA This is an appeal from the decision of Abadee J delivered 24 May 1996 in which his Honour reversed a decision of the Licensing Court delivered 25 September 1995. It is necessary briefly to state the material circumstances. Two applications are involved, the first by Miss Szubert for conditional grant of an off licence, and the second by Mr Bott for conditional removal of an off licence from Forbes. On 16 March 1993 a Miss Szubert lodged an application for a conditional grant of an off licence to sell liquor by retail in respect of certain premises at Plumpton. S40 Liquor Act 1982 provides: "(i) An application: (a) for a licence; (b) for removal of a licence; may be made as a conditional application if the premises to which the licence will relate, or to which the licence is to be removed, are premises proposed to be erected or premises proposed to be added to or altered, in accordance with an approved plan lodged with the application or are premises already erected in respect of which there is lodged with the application any consent required under another Act for the proposed use, or proposed change of use, of the premises. (vi) In this section: Approved plan", in relation to proposed licensed premises, or a proposed addition to or alteration of licensed premises, means a plan of the proposed premises, or of the proposed addition or alteration, that is accompanied by: (a) each approval that, by the Local Government Act 1993 or any other act is required for the carrying out of any work represented by the plans; and (b) any consent required under the Environment Planning and Assessment Act 1979 for the carrying out of that work" On 26 June 1991 Blacktown City Council had granted a development consent in respect of the subject premises. It also issued a building permit on 22 January 1993. S99 Environmental Planning and Assessment Act 1979 (the EPA Act), prior to the 1993 amendments, provided that a consent granted pursuant to Division 1, Pt4 lapsed after two years, subject to irrelevant exceptions, unless the development the subject of the consent was "commenced" within that time. $99(2)(a) provided: "Where development comprises the erection of a building or the carrying out of a work or the subdivision (involving physical work) of land (including, where applicable, the subsequent use of that building when erected, the work when 8 UNREPORTED JUDGMENTS carried out, or that land when subdivided) that development is commenced when building, engineering, or construction work related to that development is physically commenced on the land to which the consent applies." The development consent of 26 June 1991 and the building permit of 22 January 1993 were thus both current on 16 March 1993 when the application for conditional grant for an off licence was lodged. The appropriate consents were lodged with the application. It is established that fulfilling the requirements of s40 is a condition precedent to the Licensing Court having jurisdiction.! Having complied with s40, the application by Miss Szubert for a conditional grant of an off licence was valid and the court had jurisdiction. The court exercised that jurisdiction. In September 1993 the Licensing Court heard evidence concerning the conditional grant application, dealing only with one aspect of objections to the application, namely, whether an objection on the ground that the needs of the public in the neighbourhood of the premises to which the application related could be met by facilities for the supply of liquor existing in, and outside, the neighbourhood, had been established.? Such an objection had been taken by Liquorland. On 20 December 1993 the Licensing Court held that the objection had not been established. The balance of proceedings were adjourned by consent, including an issue raised by an objector in accordance with s18(10) that the court was not authorised to grant the sought off licence unless it was satisfied that an existing off licence of the kind sought is not available for a reasonable market price for removal to the premises or proposed premises to which the application for the new licence related. On 18 January 1995, the first respondent, Steven Bott, lodged the second application. It was an application for conditional removal of an off licence at Forbes to the proposed premises at Plumpton in respect of which Miss Szubert had a valid part heard application for conditional grant of an off licence. This second application was also made pursuant to s40. Each of the applications of Miss Szubert and Mr Bott were ordered to be heard together. The order that the two applications be heard together was made pursuant to reg32(2). That regulation provides: "(2) Without prejudice to the generality of subcl(1), a licensing magistrate or the court may direct that an application be heard and determined with any other application specified in the direction, and such a direction may be given notwithstanding that applications to which the direction relates: (a) are in respect of premises situated in different neighbourhoods; (b) are subject to objections that are based on different grounds; (c) are subject to objections that are based on the same grounds for different reasons; and (d) were made on different dates." Although reg32(2) does not expressly so provide, and no express order was made by the licensing court, it is implicit in an order that both matters be heard together that the evidence called in that joint hearing will, so far as it may be relevant, be evidence in each application. That does not, however, permit the re-opening of matters previously determined by the court, without an order permitting such a course. Nor does an order that two applications be heard 1. Minahan v Baldock (1951) 84 CLR 1; Hill and Ors v King and Ors (1993) 31 NSWLR 654 at2. $45(2) Liquor Act 1982 URJ MEAGHER v BOTT (Cole JA) 9 together make an objection to the second application an objection to the first. It follows, in my view, that the direction that both applications, one part heard and the other new, be heard together did not, absent an appropriate order, permit re-opening of the part-heard grant application regarding needs of the neighbourhood in respect of which the court had already decided that the needs objection based upon s45(2) had not been established. The reality was, however, that if the conditional removal application was granted, Miss Szubert would not need to proceed with her application for conditional grant of a licence. Indeed, if the removal application was granted the objection to grant of a licence provided by s18(10) would be established and the court would not be authorised to grant the of licence sought by Miss Szubert, she having apparently purchased Mr Bott's licence for what she regarded as a reasonable price. Nonetheless it seems that Woolworths, by its controller, Mr Meagher, being an objector to the removal application of Mr Bott but not to the grant application, was permitted to raised the needs objection, and it was treated as an objection to the grant application as well as to the removal application. However, in the event that objection was not established. Regarding the removal application, there was lodged with it in accordance with the requirements of s40 a copy of the Notice of Determination of Development Application made by Miss Szubert dated 26 June 1991 by the Blacktown City Council. Although it is not clear whether they were also lodged with the removal application, there was tendered to the licensing court the building permits issued by the Blacktown City Council dated 22 January 1993 and 27 October 1994. In relation to the removal application of Mr Bott, Woolworths contended that the requirements of s40(1) of the Act had not been complied with and thus there was no jurisdiction, not because the appropriate consents had not been lodged with the application but because any consent granted by the Blacktown City Council concerning the premises to which Mr Bott's licence was sought to be removed had lapsed. It seems that not only had Blacktown City Council granted the development consent to which I have referred on 26 June 1991, and the building permit on 22 January 1993 but on 28 June 1994 it had confirmed that the development consent was still current, and on 27 October 1994 issued a further building permit. On 28 June 1994 the Council wrote to the developer stating that: 'The development consent has been substantially commenced by the dedication of the Open Space, and Drainage land and creation of Lot 42 (see condition of the Notice of Determination); and the physical commencement of the development has been satisfied by the diversion and extension of the sewer line onto the subject property." On 10 August 1995 the Council wrote to the applicant's solicitors confirming that the development consent had not lapsed. The Licensing Court concluded: "Whether the Council's opinion is right or wrong it is of the view that the consent was still current on 23 July 1993, 28 June 1994, 27 October 1994 (being the date of the second building permit) and 10 August 1995. Consequently it is reasonable to assume that the applicant could carry out the various building works authorised by the development consent and building approval without any fear that the Council would object to the undertaking of those works." Woolworths submission before the Licensing Court had two aspects. The first was a contention that, at the hearing of, presumably, both applications, it was necessary for the applicants to establish that necessary development and building 10 UNREPORTED JUDGMENTS consents previously granted remained in force at the date of hearing, and, second, assuming that to be so, as a matter of fact the development consent granted by the Blacktown City Council had lapsed for want of commencement. The applicants, on the other hand, contended that the Licensing Court should not go behind apparently valid consents or expressions of opinion by Council that consents were valid and continued to exist. It argued that the relevant obligation under the Liquor Act was to lodge with the application the consents required by s40(1): there was no obligation to prove the continued validity or existence of those consents at the hearing. It relied upon the dicta of this Court in Hill and Ors v King and Ors? where the Court, in dealing with an objector's attack on the validity of a building approval said: "Although we will deal with this issue we would not wish to give any encouragement to the view that objectors are entitled to require the Licensing Court to entertain collateral challenges to the validity of building approvals and development consents." With this in mind the Licensing Court held: "This Court is also of the view that it is not the appropriate court to determine the validity or otherwise of consents and permits issued by the local authority. The Land and Environment Court has been vested with jurisdiction in relation to such matters and prima facie it appears to be the court in which any such issues should be litigated. However notwithstanding that expression of opinion it seems that the requirements of s40 require this Court to very reluctantly become involved in such issues." It seems that the court upheld a submission put to it by Mr Whealy QC for Woolworths that determining whether a consent continued to exist because of absence of commencement differed from a "collateral attack" upon the validity of the initial consent. The Licensing Court thought that its view was supported by s58 of the Liquor Act which provided: "If an application is conditionally granted under s40, the grant has effect only while an approval or consent required by another Act for the use, erection, addition or alteration to which the grant relates has effect." The Licensing Court said: "Tt would be anomalous if upon an application being made for final order to a conditionally granted application objection could be taken which would require the court to determine whether the consent was still in force yet, as it is argued, at the time the court is considering the application for the conditional grant there is no entitlement or power to consider that. Thus the court held that the applicants must establish "not only that they hold the requisite consents and approvals but that such consents and approvals remain in force". Reviewing the evidence called before it, the court determined that there had not been commencement, and thus the effect of s99 EPA 1979 which provided that development consent lapsed after two years unless there had been such commencement, resulted in there being no existing consent in August 1995 when the applications were heard and accordingly the court had no jurisdiction. It was that decision which Abadee J reversed being of the view that s40 did not require the applicant to establish an existing valid consent at the date of hearing. Ultimately, the obligations upon the applicants depend upon an interpretation of the requirements of the Liquor Act 1982. However, before addressing that matter, I wish to endorse and reinforce the expression of opinion in Hill v King 3. (1993) 31 NSWLR 654 at 661 URJ MEAGHER v BOTT (Cole JA) 11 that it is not the function of the Licensing Court to entertain collateral challenges to the validity of building approvals and development consents. S$104A Environmental Planning and Assessment Act 1979, as amended provides: "In the event that public notice of the granting of a consent is given in accordance with the regulations by a consent authority the validity of the consent shall not be questioned in any legal proceedings except those commenced in the Court by any person at any time before the expiration of three months from the date on which public notice was so given." S104 requires councils to keep a register of consents granted under Division 1, Pt4, which relates to development applications. The reasoning behind a provision such as 104A was explained by Else-Mitchell J in 1970 in Ryde Municipal Council v Royal Ryde Homes* where his Honour said: "Tt must not be overlooked that a consent to the development of land under a prescribed planning scheme is not personal to the applicant but enures for the benefit of subsequent owners and occupiers, and in some respects a consent is equivalent to a document of title." Hope J referred to this notion in Auburn Municipal Council v Szabo where his Honour said "It is apparent from these decisions that in determining what a council has approved, one primarily looks at the document constituting the approval, and construes it. The necessity to do this arises, inter alia, from the fact that a development approval does not enure only for the benefit of the applicant. It enures for the benefit of all future owners or occupiers, and it would create a confusing and difficult, if not impossible, position if in order to determine what a council had approved one had to go to a whole series of documents and try to determine which of the documents and which part of any particular document council intended to incorporate in its approval."6 Whilst it may be true that determining whether a consent has lapsed, or because of commencement enures indefinitely, may raise slightly different considerations, it remains clear that it is the responsibility of the relevant council to determine whether 0 maintained there was an existing valid consent and where a building approval had been granted at a time after which the development consent would have lapsed had there not been commencement. The argument addressed by Mr Whealy QC on behalf of the appellant to this Court was much the same as that put to and accepted by the Licensing Court, but rejected by Abadee J. First, it was argued that s40 required an applicant to lodge a consent which was current. It must be current on its face both at the time of the application and at the time of hearing of the application. If due to the effluxion of time or some changed circumstance, the consent did not appear on its face to be current and valid at the time of both lodgment and hearing, the applicant must prove to the Licensing Court that it was so valid. S58 reinforced this view for it could not have been the intention of the legislature for the court to grant a licence and for it instantaneously to lapse because the necessary consent had lapsed. This was put as a continuing jurisdiction point - it was contended the Licensing court 4. (1970) 19 LGRA 321 at 324 5. (1971) 67 LGRA 427 at 433-434 6. See Hubertos Schuetzenverein Liverpool Rifle Club Ltd v Commonwealth of Australia (1994) 85 LGERA 37, and cases collected therein at 44-46 12 UNREPORTED JUDGMENTS had no jurisdiction to grant the licence if, at the hearing and irrespective of the position at lodgement of the application, it was not established by evidence that at that time the consents were valid. Second, it was contended that this combined effect of s40 and s58 meant that the Licensing Court was empowered to determine at the hearing whether a consent was valid. It could form its own view and was not bound by the decision or opinion of the council. It had determined, as a fact, that there had not been commencement, and there was no appeal from that factual finding. Abadee J and this Court were bound by that factual finding. In my opinion the submissions are in error in two essential respects. First, s58 is to be given an ambulatory interpretation. It operates only after an application brought pursuant to s40 has been conditionally granted. It at the time of grant or thereafter, the necessary approvals or consents under the Environmental Planning and Assessment Act or the Local Government Act, lapse, the conditional grant also ceases to have effect. However, if the holder of the conditionally granted licence regains consent, the conditionally granted licence again has effect. There is nothing in the wording of s58 which determines permanently a conditionally granted licence: the section simply provides that such a licence is effective whilst the necessary consents are effective. This interpretation means that it is not necessary for an applicant to show, or the Licensing Court to determine on the hearing of an application, whether the consents required under the Environmental Planning and Assessment Act and the Local Government Act are then valid. Jurisdiction is conferred if they were valid at the date of lodging of the application. Second, jurisdiction is not to be determined by the state of affairs at the date of hearing, but rather at the date of lodging the application. Jurisdiction is conferred on the Licensing Court if s40 is complied with and it speaks only of the requirements of documents "lodged" with the application. Accordingly the Licensing Court must satisfy itself that the requirements of s40 are satisfied at the date of application. In so doing it is not the function of the Licensing Court to itself determine, contrary to the views of the responsible authority under the Environmental Planning and Assessment Act' and the Local Government Act whether at that date the consents are valid. As the Chief Secretary and Minister for Tourism made clear in the second reading speech to the Liquor (Amendment) Bill and the Local Government (Liquor) Amendment Bill one of the functions of the amendments was to remove duplication in the roles, inter alia, of the Licensing Court and local councils. The Minister said: "The amendments proposed by the bills will overcome much of this duplication by requiring applicants for new licences to present development and building approvals from local councils to the court. This will mean approvals must be obtained from councils prior to lodging an application with the court." It is implied that the licensing Court is to accept the decision of the council as the responsible authority, regarding whether at the relevant date of application, a valid consent has been granted and continues to exist. If on its face the consent lodged does not continue as being within two years, or now five years, of grant of consent, that situation is determined by the filing of appropriate evidence from the council that the consent continues to council's satisfaction because of commencement. It is not for the Licensing Court to determine that question of fact. URJ MEAGHER v BOTT (Cole JA) 13 Pt3 of the Liquor Act 1982 deals with licences. Division 1 deals with classes of licences, Division 2 conditions of licences, Division 4 making of applications, Division 4A investigation of applications, Division 5 objections to applications and Division 6 grant of applications. S40 is in Division 4. Accordingly one looks there to find the obligations upon an applicant for a licence. One does not look in Division 4 to find that which must be established at the hearing before the court may grant the application. That is to affirm, rather than to deny, that compliance with the mandatory requirements of s40 in the making of an application is necessary before jurisdiction is conferred upon the licensing court to grant the application.7 The terms of s40(1) are in my opinion clear. An applicant for a licence in respect of premises to which the licence will relate or to which it will be removed, which are premises yet to be erected, added to or altered in accordance with approved plans lodged with the application, or in respect of premises already erected which require consent to the proposed use, must lodge with the application each approval or consent required under the Local Government Act or Environmental Planning and Assessment Act 1979 relating to the approved erection, addition, alteration or change of use. Having done so the court has jurisdiction subject to any other necessary statutory requirements. Subject to the "lapsed" argument, it was not challenged in the Licensing Court, before Abadee J or before this Court that those requirements had been complied with at the time of lodging the application. The Licensing Court was in error if its decision is to be understood as finding that it had no jurisdiction because, at the date of hearing, a consent did not continue to exist. Its jurisdiction depended upon the appropriate consents being lodged with Mr Bott's application. It was not in issue that they were so lodged, subject to the argument that the consent had lapsed at the date of filing of the application because of lack of commencement within two years. When the matter came before the licensing Court in August 1995 the issue was whether the conditional applications for grant and removal should be granted. One turns to s18 in Division 1 of Pt3, and to Division 6 for the statutory provisions relating to such grants. S18(1) empowers the court to grant various licenses. $18(2)(b) empowers the court to grant an off licence of various types, including pursuant to s18(3)(a) a licence to sell liquor by retail. $18(10) restricts the power conferred by s18(1) and s18(2) in that the Court may not grant a new off-licence to sell liquor by retail unless it is satisfied that an existing off licence of that kind is not available at a reasonable market price for removal to the premises to which the application for the new licence relates. That is why the application for removal of the off licence from Forbes to the subject premises was heard with the application for grant. S48, which commences Division 6 entitled "Grant of Applications", provides that: "(1) Subject to s58 and s60, the provisions of this Division apply to and in respect of the conditional grant of an application in the same way as they apply to and in respect of the unconditional grant of an application of the same kind. (2) The requirements of this Division relating to premises apply to and in respect of a conditional application as if the premises to which the conditional application relates had been erected or as the case may be, added to or altered, in accordance with the plans upon which the application is based." 7. Minahan v Baldock (1951) 84 CLR | at 11 14 UNREPORTED JUDGMENTS S58 and s60 deal with the effectiveness of a conditional grant and the final grant of a conditional grant. In Division 6, there are set out restrictions upon the grant of various forms of licence, or conditions which must be satisfied before licences of various types may be granted. Hotelier's licences (s49), on licence at airports (s50), at functions (s51) in public halls (s54), at universities (s54A), and motel licences (s53A) and caterer's licences (s54B) are each addressed. So also is the removal of an off licence (s57). There is no specific provision regarding the grant or restriction upon the grant of an off licence of any type. Just as s45(2) provides for objection to be taken to the grant of an off licence to sell liquor or removal of an off licence on the ground that the needs of the neighbourhood in which the premises to which the licence will relate can be met by existing facilities, so s57(1) prohibits the grant of an application to remove an off licence from premises if the removal of the off licence will detrimentally affect the neighbourhood which the licence presently serves. Notwithstanding the terms of s58 ("if any application is conditionally granted under s40"), or s60 ("an application conditionally granted under s40"), both of which expressions must be read to mean an application made pursuant to s40 and conditionally granted, the power to grant a conditional application for a licence or removal of a licence made pursuant to s40 is found in s18, not s40. There is no provision either in s18, s40, or elsewhere which requires an applicant for such a conditional licence or conditional removal of a licence to establish that consents which existed at the time of lodging of the application continued to exist at the date of grant of the conditional application. Subject to s57, pursuant to s18 the Court may grant a conditional application to remove an off licence for sale of liquor by retail. The effect of s58 is that such a grant continues only during the currency of any required consent to the use, erection, addition or alteration to the premises to which the conditional grant applies. When application is made for final grant, in accordance with s60, the court may require to be satisfied that works done accord with approved plans upon which the application was conditionally granted. Such a grant is not to be finalised unless the applicant establishes to the satisfaction of the registrar that "the work of erection, addition or alteration has been completed substantially in accordance with the approved plan on the basis of which the conditional application was granted". That does not involve any challenge to a development consent: rather it requires the registrar to be satisfied that building plans lodged with the conditional application no doubt pursuant to a prior existing consent, if one be necessary. have been substantially implemented. It follows that the Licensing Court had jurisdiction to hear the two applications. Accordingly the appeal should be dismissed with costs. Appeal dismissed with costs (by majority). Counsel for the appellant: AG Whealey QC/M Heath Solicitors for the appellant: KH Kinninmont Counsel for the respondent: IJ Lawry Solicitors for the respondent: Shaddick Baker and Paull