Land and Environment Court of New South Wales CITATION: Auswild & Ors V Blacktown City Council [1999] NSWLEC 67 PARTIES Applicant Auswild & Ors Respondent Blacktown City Council NUMBER: 10834 of 1998 CORAM: Cowdroy AJ KEY ISSUES: Development :- Development consent - existing use - intensification of use - application for extension of hotel operating hours - no restriction of trading hours in consent - subsequent planning instrument - s 109B rendering further consent unnecessary Environmental Planning & Assessment Act 1979 ss36(5), LEGISLATION CITED: s 106, s 107, s 108, s 109, s 109B DATES OF HEARING: 03/11/1999 DATE OF JUDGMENT DELIVERY: 03/23/1999 Applicant Mr S Austin QC (Barrister) Solicitors Freehill Hollingdale and Page LEGAL REPRESENTATIVES: Respondent Mr J Kildea (Barrister) Solicitors Taylor Kelso JUDGMENT: IN THE LAND AND MATTER No. 10834 of 1998 ENVIRONMENT COURT CORAM: Cowdroy AJ OF NEW SOUTH WALES DECISION DATE: 23/03/99 AUSWILD & ORS Applicant v BLACKTOWN CITY COUNCIL Respondent JUDGMENT The Question 1. This matter comes before the court upon a determination of law pursuant to s36(5) of the Land & Environment Court Act ("the Act") as amended. 2. On 27 January 1971 by Permit no. 1221 the respondent council ("the council") granted consent ("the consent") to an associated company of the applicant for use of premises at Lot 23DP24189, situated on the corner of Jersey Rd and Popondetta Road Emerton, for use as a hotel/motel, subject to numerous conditions. 3. No condition of the consent restricted the hours of operation of the hotel/motel. 4. The hotel/motel has been operating pursuant to the consent and now wishes to extend its trading hours. Such extension is opposed by the council which claims that consent is required pursuant to the Blacktown Local Environmental Plan 1988 which was gazetted on 28 October 1988. 5. Extension of the operating hours of a hotel has been held to constitute intensification of a use (see South Sydney City Council v Spiro Houlakis and Anor (unreported: CA 40295 of 1996: 14 November 1996). The issue is whether in the events which have happened, there is any requirement for the applicant to obtain consent for the extension of hours, and the following question is raised for determination:- Is the extension of trading hours protected from the need to obtain development consent by virtue of section 109B of the Environmental Planning and Assessment Act 1979? Nature of the Existing Use 6. Part 4 Division10 of the Act makes provision for existing uses and for uses which may lawfully be conducted after the commencement of operation of a planning instrument. Section 109(1) of the Act provides:- "109 (1) Nothing in an environmental planning instrument operates so as to require consent to be obtained under this Act for the continuance of a use of a building, work or land for a lawful purpose for which it was being used immediately before the coming into force of the instrument or so as to prevent the continuance of that use except with consent under this Act being obtained." Sub paragraph 109(2)(c) contains certain exceptions which relevantly provides as follows:- "Nothing in sub-section (1) authorises: (c)....any enlargement or expansion or intensification of the use therein mentioned." 7. Section 109B for the Act provides:- 109B (1) Nothing in an environment planning instrument prohibits, or requires a further development consent to authorise, the carrying out of development in accordance with a consent that has been granted and is in force. (2) This section: (a) applies to consents lawfully granted before or after the commencement of this Act, and (b) does not prevent the lapsing, revocation or modification, in accordance with this Act, of a consent, and (c) has effect despite anything to the contrary in section 107 or 109. 8. The applicant contends that it has a valid consent to carry on the business of a hotel/motel and any activity conducted on the premises as part of the consent granted in 1971 is a lawful exercise of the "carrying out of development". Accordingly the applicant submits that it is fully protected by s109B and there is no need to obtain any consent from the council in respect of the proposed extended hours of operation. 9. The council submits that there is a distinction between the two sections referred to above. It claims s109(1) is directed to the circumstance of the continuance of a use of a building, work or land whereas s109B is directed to the dispensation for a further consent in the circumstance that a development may be incomplete at the date of the commencement of the environmental planning instrument. 10. The decision of the NSW Court of Appeal in South Sydney CC v Spiro Houlakis (supra) is not of relevance in view of the fact that the hotel in question did not have any development consent and relied for its operations solely upon existing use rights. However, in South Sydney City Council v M & D Cooper (unreported: 40020 of 1997: 28 May 1997), Bignold J held that a development consent for a hotel which contained no restriction as to hours of operation enabled it, by virtue of the provisions of s109B, to extend its trading hours without the need to obtain a further consent. 11. In Auburn Council v Nehme (unreported: 40241 of 1997: 15 April 1998), Bignold J applied his previous decision in South City Council v M & D Cooper (supra). In Nehme, His Honour drew the distinction between "existing use" as defined in s106 of the Act and "development consent" which was unique to s109B. 12. Section 109 does not specifically address the circumstance in which a development consent has been obtained but rather one where a use was "lawful" immediately before the operation of the new planning instrument. The attempt by the council to rationalise s107, s109 and s109B of the Act is predicated upon an interpretation being read into s109B. It submits that the section applies to a development for which consent has been obtained but not yet implemented. No such limitation is implied in the section and Bignold J rejected such interpretation in Nehme . His Honour's reasons were reinforced by s109B(2)(c) which provides that the section "has effect despite anything to the contrary contained in s107 or s109". I agree with His Honour's reasons and determine that s109B has specific application to the circumstance in which a development consent has been already granted, irrespective of whether the development has been carried out or only partly carried out. 13. The applicant also submits the extension of hours is but part of the "development" of the hotel. It is not necessary to determine this submission as a separate issue, since I agree with the reasoning of Bignold J, and of His Honour's observation in Moto Projects (No 2) Pty Limited v North Sydney Council (unreported: 10714 of 1997: 11 September 1998) that "intensification" of a use for which a consent exists is not a relevant consideration under s109B of the Act. In Penrith City Council v Penrith Waste Services Pty Limited (unreported: 40156 of 1994: 19 December 1995) Talbot J observed that s109B(2) had the effect of negating the provisions of s107(2) in respect of an existing use where it could be proved that "the carrying out of the development is in accordance with a consent that has been granted and is in force." The New South Wales Court of Appeal in Penrith Waste Services Pty Limited v Penrith City Council (unreported: CA 40447 of 1976 and CA 40448 of 1996: 6 November 1998) upheld the approach of Talbot J. 14. As a second argument, council submitted that the consent implicitly included all of the restrictions, including hours of operation, prescribed by the Liquor Act 1912 in respect of a hotel. Such a submission has obvious difficulties. This submission was raised in South Sydney Council v M & D Cooper (supra) and rejected. I concur with this result. No restriction appears in the consent which, being a public document operating in rem, is to be given effect according to its provisions (see Sydney Serviced Apartments Pty Limited v North Sydney Municipal Council [No 2] (1993) 78 LGERA 404; Auburn Municipal Council v Szabo and Another (1989) 67 LGRA 427; Byron Shire Business for the Future Inc v Byron Council and Haliday Villages (Byron Bay) Pty Limited (1994) 84 LGERA 434. The application for consent was tendered in evidence, but it does not assist the council's submission. The alleged restriction is without foundation. 15. Accordingly, in relation to the requirements of planning legislation it is unnecessary for the applicant to seek further development consent for its proposed extended trading hours. Orders 16. I make the following Orders: 1. The question of law posed by the parties is answered in the affirmative. 2. Exhibits be returned. I HEREBY CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE ACTING JUSTICE DENNIS A COWDROY OAM ASSOCIATE 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.