Land and Environment Court of New South Wales CITATION : Doncaster Operations Pty Limited v Randwick City Council [2005] NSWLEC 217 APPLICANT Doncaster Operations Pty Limited PARTIES : RESPONDENT Randwick City Council FILE NUMBER(S) : 11535 of 2004 CORAM: Moore C Development Application - Discretion :- KEY ISSUES: Proposal contrary to liquor licence condition . Liquor Act 1987 LEGISLATION CITED: Environmental Planning and Assessment Act 1979 . DATES OF HEARING: 3 and 4 May 2005 DATE OF JUDGMENT: 05/04/2005 EX TEMPORE JUDGMENT DATE : 05/04/2005 APPLICANT Mr C McEwen SC, barrister INSTRUCTED BY Staunton Beattie LEGAL REPRESENTATIVES: RESPONDENT Mr A Galasso, barrister INSTRUCTED BY Bowen & Gerathy JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES MOORE C 4 May 2005 04/11535 Doncaster Operations Pty Limited v Randwick City Council JUDGMENT 1 Commissioner: The application which is the subject this appeal envisages, inter alia, the construction of a first floor outdoor dining area at the Doncaster Hotel on the corner of Anzac Parade and Doncaster Avenue at Kensington. 2 The existing liquor licence for the premises, which would apply to the proposed first floor outdoor dining area, contains a provision that, at any adjacent residential premises, the noise at the boundary of the premises shall not exceed the background noise level plus 5 dB. 3 The condition reads: The LA10 noise level emitted from the licensed premises shall not exceed the background level in any Octave Band Centre Frequency (31.5 Hz – 8 kHz inclusive) by more than 5 dB between 07:00 am and 12:00 midnight at the boundary of any affected residence. 4 It is the agreed position of the applicant's acoustic expert, Mr Cooper, and the respondent's acoustic expert, Dr Tonin, that the proposed first floor outdoor dining area can comply with the condition of the licence up to 6 pm but that from that hour until the cessation of operation of the outdoor dining area, if operating at full capacity, that operation must necessarily result in non-compliance with this licence provision. 5 The liquor licensing provisions are imposed pursuant to the Liquor Act 1987 (the Liquor Act) and are enforceable, relevantly, through a process set out in s 104 of that Act. It is clear from the terms of those provisions that, although there is a discretion given to the Licensing Court not to enforce the condition or to vary the condition, nonetheless the condition is enforceable and a licensee who breaches it is potentially subject to sanctions as a consequence of a breach. 6 It is clear that I have jurisdiction to uphold the appeal and approve the application. It is also well settled that, in exercising its discretion, this Court can determine that an proposal, which is otherwise permitted under another regulatory regime such as the Liquor Act, is nonetheless unacceptable in a planning or environmental context. Thus, this Court can impose restrictions on a proposal that is otherwise permitted by another regulatory regime. However, I am not satisfied that the converse is the correct position. 7 In the present instance, the granting of the application, as sought, would involve this Court in granting a consent which would have the effect of permitting a breach of the licensing conditions. 8 It has been submitted to me by Mr McEwen SC, barrister for the applicant, and Mr Galasso, barrister for the council, that I should undertake a merit assessment as to whether or not the proposed first floor dining area, at full capacity, would be acceptable when assessed against s 79C of the Environmental Planning and Assessment Act 1979. 9 I am urged that, if I were to conclude that it may be acceptable when so assessed, only then should I consider whether or not the licensing conditions should act as a reason for not granting a consent. 10 This approach assumes it is appropriate to consider exercising this Court's discretion in a fashion which would ignore an otherwise binding regulatory restriction imposed under another statutory regime. 11 I am satisfied that the correct question is whether, as a matter of discretion, it is appropriate for this Court to consider the underlying merits which would be involved in determining whether to give a consent to an application the granting of which would necessarily result in the breach of a condition imposed by another regulatory authority whose conditions have the force of law and which conditions are not amenable to amendment by this Court. 12 On reflection over night and after hearing and considering Mr McEwen's further submissions this morning, I have concluded that this is not the appropriate approach to this issue. 13 I am so satisfied because it is not appropriate for this Court, in effect, to be acting as a court of review of Licensing Court decisions where that court has effectively prohibited an activity now pursued before this Court. 14 As a consequence, I am satisfied that I should not, as a matter of discretion, consider whether or not, from a planning or environmental perspective, it would be acceptable to permit the first floor outdoor dining area to be used beyond one third of its capacity after 6 pm. 15 If the applicant were to approach the Licensing Court and have this licence condition amended so that the condition did not act as an impediment to the granting of such an application, a future application to modify any consent arising from the present proceedings or a fresh development application for a supplementary consent could be lodged. Absent such variation, it is not appropriate for this Court to consider approval of the application in its present form. 16 I have therefore concluded that, on this issue, the only basis on which the appeal could be upheld would be if operation of the first floor outdoor dining area were subject to a restriction on use so that such use was confined to one third of its carrying capacity after 6 pm. How that is to be implemented is a matter for discussion between the parties and, if agreement cannot be reached, can be dealt with by me on a future occasion. Tim Moore Commissioner of the Court 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. 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