> Reported Decision : (2003) 126 LGERA 103 Land and Environment Court of New South Wales CITATION : Consumo Pty Limited v Fairfield City Council [2003] NSWLEC 143 APPLICANT Consumo Pty Limited PARTIES : RESPONDENT Fairfield City Council FILE NUMBER(S) : 10693 of 1998 CORAM: Cowdroy J KEY ISSUES: Question of Law :- modification of consent - amendment to local environmental plan - power under the applicable legislation to grant consent Environmental Planning and Assessment Act 1979, s 4, s 96, s 96AA Environmental Planning and Assessment Regulation 2000, cl 123A LEGISLATION CITED: Fairfield Local Environmental Plan 1994 Gaming Machines Act 2001, s 209 Land and Environment Court Act 1979, s 36(5) Land and Environment Court Amendment Act 2002 Houlton v Woollahra Municipal Council (1997) 95 LGERA 201; CASES CITED: Progress and Securities v North Sydney Municipal Council (1988) 66 LGRA 236; Valhalla Cinemas Pty Ltd v Leichhardt Municipal Council (1986) 60 LGRA 240 DATES OF HEARING: 18/06/2003 DATE OF JUDGMENT: 07/02/2003 APPLICANT Ms S. Duggan (Barrister) SOLICITORS Pike Pike & Fenwick LEGAL REPRESENTATIVES: RESPONDENT Mr J. Ritchie (Solicitor) SOLICITORS Kencalo & Ritchie JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10693 of 1998 Cowdroy J 2 July 2003 Consumo Pty Limited Applicant v Fairfield City Council Respondent Judgment Facts 1 A question of law has arisen in proceedings currently part heard before Commissioner Hoffman and was referred by the Commissioner to the Chief Judge pursuant to s 36(5) of the Land and Environment Court Act 1979. 2 On 4 March 1999 the Court granted development consent to the applicant for the use of premises known as shop 2, 485 Cabramatta Road West, Cabramatta West as a hotel comprising a public bar, a bistro and gaming area with a maximum number of 15 gaming machines ("the consent"). The consent related to land known as lot 100 in deposited plan 864126 which was affected by the provisions of the Fairfield Local Environmental Plan 1994 ("the LEP"). Pursuant to the LEP the subject land is within Zone 3(c) Local Business Centre in which the use of land for the purpose of a hotel is permissible with development consent. 3 By notice published in the New South Wales Government Gazette on 8 October 1999 the LEP was amended by Fairfield Local Environmental Plan 1994 (Amendment No. 45) ("the Amendment"). The Amendment prohibited the use of land subject to the LEP for the purpose of "gaming taverns" except for land in Zone 3(a) Sub-Regional Business Centre and Zone 3(b) District Business Centre. In consequence, "gaming taverns" became prohibited on the subject land but the use of land for the purposes of a "hotel" remained permissible. The Amendment is not retrospective. 4 The term "gaming tavern" is defined in the Amendment as follows:- Gaming tavern means a hotel which does not provide accommodation (other than caretaker's facilities) and includes more than 3 gaming machines. The term "gaming machine" is also defined in the Amendment as follows:- Gaming machine means any device declared to be an approved amusement device pursuant to section 158 of the Liquor Act 1982 , any approved amusement device as defined in the Registered Clubs Act 1976 , any approved gaming device as defined in the Liquor Act 1982 or the Registered Clubs Act 1976 , or any approved, authorised or established poker machine as defined in the Liquor Act 1982 or the Registered Clubs Act 1976 . 5 The LEP defines "hotel" as:- "Hotel" means a building or place specified or proposed to be specified in a hotelier's licence granted under the Liquor Act 1982. 6 On 7 November 2000 and 26 February 2001 the consent was modified pursuant to s 96 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). The subject matter of the modifications is not relevant in the present proceedings. 7 The applicant now seeks to modify the consent pursuant to s 96(2) of the EP&A Act to permit internal alterations to the building, to use part of the first floor of the building as a caretaker's residence and to provide toilet facilities for hotel patrons. The number of gaming machines remains the same. The application for modification of the consent was made and had not been determined prior to 10 February 2003. On this date s 96AA of the EP&A Act, which was inserted into the EP&A Act by the Land and Environment Court Amendment Act 2002, became operative. Accordingly the EP&A Act in force immediately before the commencement of the Land and Environment Court Amendment Act 2002 continues to apply: see cl 123A(2) of the Environmental Planning and Assessment Regulation 2000. 8 The concern of the learned Commissioner arises in consequence of the enactment of the Gaming Machines Act 2001 ("GM Act") which was assented to on 19 December 2001 and commenced its operation on 2 April 2002. Such Act therefore commenced its operation after the consent was granted and after the Amendment came into force but before the current application was made to the Court. 9 Section 209 of the GM Act relevantly provides:- 209 Relationship with Environmental Planning and Assessment Act 1979 (1) An environmental planning instrument (whether made before or after the commencement of this section) under the Environmental Planning and Assessment Act 1979 cannot prohibit or require development consent for, or otherwise regulate or restrict, the installation, keeping or operation of approved gaming machines in hotels, registered clubs or any other premises. (2) If an environmental planning instrument contains any provision in contravention of subsection (1), the provision is taken to have no effect. 10 The question of law asked of the Court is as follows:- Is there power under the applicable legislation to grant consent to the application? Findings 11 The objects of the Amendment are stated in cl 2 as follows:- 2. The objectives of this plan are: (a) to allow, with Fairfield City Council's consent, the use of land zoned Sub-Regional Business Centre and District Business Centre under Fairfield Local Environmental Plan 1994 for the purpose of gaming taverns and to prohibit that use in all other zones under that plan; and (b) to maintain the prohibition of hotels (both with or without accommodation) on land in Zones 1(a), 1(b), 2(a), 2(a1) 2(b), 4(a), 4(b), 4(c) and 6(c) under Fairfield Local Environmental Plan 1994 within the City of Fairfield. 12 The Amendment, by virtue of cl 3 thereof, applies to the following land:- 3. To the extent that this plan affects definitions, and controls the use of land for the purpose of gaming taverns generally, it applies to all land in the City of Fairfield under Fairfield Local Environmental Plan 1994. 13 Relevant to these proceedings the Amendment permits, with development consent, the use of land for the purpose of gaming taverns in Zone 3(a) Sub-Regional Business Centre and Zone 3(b) District Business Centre under the LEP and to prohibit such use in all other zones under the LEP. Clause 5(a) of the Amendment prohibits gaming taverns in zones including Zone 3(c) Local Business Centre, in which zone the applicant's hotel is located. 14 The distinction between a "hotel" and a "gaming tavern" is solely predicated on the number of gaming machines. That is, if a "gaming tavern" had less than three gaming machines it would not be defined as a "gaming tavern" but would be classified as a "hotel". The Amendment thus regulates or restricts the installation, keeping or operation of approved gaming machines in hotels by virtue of the requirement of more than three gaming machines to qualify as a "gaming tavern". If the Amendment applied to the applicant's hotel, it would be prohibited because it contains 15 gaming machines and is located in Zone 3(c) Local Business Centre. But for the number of gaming machines the use authorised by the consent would be permissible. 15 The Amendment is a local environmental plan and accordingly is an "environmental planning instrument" as defined in s 4 of the EP&A Act. The Amendment regulates or restricts the number of gaming machines. Accordingly the Amendment contravenes s 209(1) of the GM Act. It follows that pursuant to s 209(2) of the GM Act, the Amendment has no force or effect and may be ignored for the purposes of the application for modification of the consent. Alternative submission 16 The Court has also considered the applicant's alternative submission and will state its conclusions. 17 In accordance with the principle referred to by Bignold J in Houlton v Woollahra Municipal Council (1997) 95 LGERA 201 the applicant submits that the Amendment cannot affect an application made under s 96(2) of the EP&A Act for a modification of an existing consent which is validly granted pursuant to a local environmental plan. At p 203 Bignold J, considering s 102(3A) of the EP&A Act (now section 96(3) of the EP&A Act), determined that subsequent changes to planning laws did not impact upon the validity of a consent and said:- An interpretation of s 102(3A) such as I have adopted is not only consistent with the context and content and purpose of the modification power conferred by s 102(1) of the EP&A Act but is consistent with the clear policy of the Act that recognises the integrity and continuing effectiveness of a validly granted development consent despite subsequent changes in the planning law. 18 Bignold J's observations are consistent with the findings of Cripps CJ in Valhalla Cinemas Pty Ltd v Leichhardt Municipal Council (1986) 60 LGRA 240 where His Honour said (referring to s 102(4) of the EP&A Act, now s 96(4) of the EP&A Act) at p 246:- Section 102(4) provides that a modification of a development consent is not to be construed as the granting of development consent but a reference in the Environmental Planning and Assessment Act (or any other Act) to a development consent shall be a reference to the development consent as modified. It follows, therefore, that the development consent if modified would not be in breach of any consent in force under the Act if the land was used in accordance with the modified consent. 19 One of the purposes of s 96 of the EP&A Act was to avoid the necessity of obtaining a further development consent where an application for modification of an existing consent is sought: see Progress and Securities Pty Ltd v North Sydney Municipal Council (1988) 66 LGRA 236 per Bignold J at p 242. 20 Accordingly the Court finds that the statutory right of the applicant to seek a modification of the consent pursuant to s 96(2) would not be affected by the Amendment. 21 For the above reasons the Court determines that it has power to grant the modification of the consent sought by the applicant. Orders 22 The Court orders that the proceedings be remitted to Commissioner Hoffman for further consideration. 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