Land and Environment Court of New South Wales CITATION : Warringah Shire Council v Koala-Ty Pizza Pty Ltd [1988] NSWLEC 5 APPLICANT Warringah Shire Council PARTIES : RESPONDENT Koala-Ty Pizza Pty Ltd FILE NUMBER(S) : 40185 of 1987 CORAM: Bignold J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Local Government Act 1919 Baulkham Hills Shire Council v. Iaria (1977) ; CASES CITED: Miah v. The Secretary of State for the Environment (1986); Fens Ltd. v. Rutland County Council (1950) DATES OF HEARING: DATE OF JUDGMENT: 06/21/1988 LEGAL REPRESENTATIVES: JUDGMENT: Bignold J.: In these class 4 proceedings the Applicant seeks a declaration and injunction to enforce compliance with a condition of development consent granted by the Applicant on 12th March, 1985 to the use of a shop within a small neighbourhood shopping centre situate at the corner of Pound Avenue and Yindella Street, Davidson "for the purpose of a take-away pizza shop". The relevant condition of consent is as follows:- "9. Operating hours being confined to Sunday to Thursday 11.30pm.: Friday and Saturday 12.30am". The dispute between the parties in relation to the attempted enforcement of this condition of development consent concerns exclusively the parties' different interpretations of the condition. The Applicant contends that it imposes a curfew on all operations conducted in the shop premises (including cleaning up after the shop has closed for trade) whereas the Respondent contends that it imposes a curfew on the evening trading hours. There is no dispute on the evidence and the Applicant concedes that if the condition is properly interpreted in the manner suggested by the Respondent then the evidence of occasional and insubstantial trading beyond the curfew would not justify injunctive relief. The evidence establishes that the Respondent does occupy the shop premises in the evening after closing hours to undertake washing up and cleaning operations and to undertake administrative paper work (eg recording the sales and counting the money). These "after trading" activities take on average up to 90 minutes, and have on occasions taken longer. Thus the question raised is one of construing the relevant development consent and the aforesaid condition. A further crucial question arose somewhat unexpectantly in the course of the Respondent's final address, which potentially renders entirely irrelevant and inutile any determination of the dispute concerning the proper construction of the development consent and relevant condition. This question queries the present day relevance of the development consent in view of the fact that after the consent was granted on 12th March, 1985 the relevant planning law was changed on 11th October, 1985 when the Warringah Local Environmental Plan 1985 was made: see Government Gazette No. 141 of 11th October, 1985. That plan repealed the planning instrument applicable at the date of the grant of the aforesaid development consent (vide 4). Relevantly cl.9 of the 1985 local environmental plan declared that in the Neighbourhood Business Zone (3C) (being the zoning of the subject land) "the purposes for which development may be carried out without development consent" were:- "Shops involving the use of buildings where the gross floor area of each shop does not exceed 500 square metres and not involving the erection, alteration, extension or rebuilding of those buildings." It is common ground that the Respondent's shop premises (having an area less than 100m2) fall within this category of permitted development. Although the Respondent in its final address originally submitted that the effect of the 1985 local environmental plan would operate in its favour in the exercise of the Court's judicial discretion this submission was later elevated to the more telling submission that the 1985 plan (and the express permission granted by cl.9 to the use of the subject shop premises) operated as a complete defence to the Applicant's claim. Since I have come to the conclusion that the latter submission is correct I propose to first consider it and having done so to consider the disputed question of construction, in case I be wrong on the more fundamental submission. Although it is not disputed that a breach of a condition of development consent is a "breach of the Act" within the meaning of Division 3 of Part VI of the Environmental Planning and Assessment Act 1979 the question raised by the Respondent's defence is whether the manner in which it conducts the subject shop, (assuming it to be in breach of the aforesaid condition) is nonetheless not in breach of the Act by virtue of the express permission for the use of the shop (without limitation on the hours of operation) granted by cl.9 of the Warringah Local Environmental Plan 1985. In other words if, as appears to be beyond dispute, the Respondent's use of the shop is expressly sanctioned by the 1985 plan (see also s.76(1) of the Environmental Planning and Assessment Act) can that very use nonetheless be held to be a breach of the Act, by virtue of it being in breach of a condition of a prior development consent? Does the prior development consent continue to apply in relation to the regulation of the use of the subject shop notwithstanding the material change subsequently made to the planning law? In terms of legal principle the position appears to be perfectly clear and can be demonstrated as follows. An activity is restricted under law A. That law is subsequently repealed by law B whereupon the same activity becomes unrestricted. Under the regime of law B the restriction hitherto operating under law A ceases to be relevant or binding to the continuance of that same activity. In my opinion that type of legal reasoning is applicable to the present case. Before the making of the 1985 Warringah Local Environmental Plan the use by the Respondent (or its predecessor in title) of the subject shop was regulated by the terms of the development consent and s.76(2) of the Environmental Planning and Assessment Act. Any breach of the condition was enforceable by proceedings brought under s.123 of the Act. After the 1985 Local Environmental Plan was made the use (including the continuing use) by the Respondent (or its predecessor in title) of the subject shop was expressly sanctioned without any limitation (as to hours of operation or otherwise) s.76(1) thereupon governed that use. Relevantly, because no other provision was made by the 1985 plan development for the purpose of the shop became unrestricted. Accordingly such use as a shop could not constitute a "breach of the Act" within the meaning of Division 3 of Part VI of the Environmental Planning and Assessment Act. The Applicant desperately sought to avert this seemingly obvious legal result by invoking the provisions of s.34(4) of the Environmental Planning and Assessment Act which is in the following terms:- "(4) The amendment or the alteration, variation or repeal, whether in whole or in part, of any environmental planning instrument does not affect - (a) the previous operation of the instrument or anything duly suffered, done or commenced under the instrument; (b) any right, privilege, obligation or liability acquired, accrued or incurred under the instrument; or (c) any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation or liability, and any such investigation, legal proceedings or remedy may be instituted, continued and enforced as if the amendment, alteration, variation or repeal had not occurred." In my opinion this statutory provision (which enacts in familar terms the doctrine of accrued rights and obligations) does not avoid the conclusion I have stated. The present proceedings were commenced on 3rd September, 1987 (nearly 2 years after the repeal of the planning instrument which applied to the subject land when the relevant development consent was granted). The breaches of the Act alleged in the application and supported by the evidence adduced by the Applicant likewise refer to events well subsequent to the relevant change in the planning law. In any event s.34(4) operates to preserve the legal effects (rights and obligations) of past acts under the previous planning instrument. It does not operate as the Applicant's submission would have it, to give to that previous instrument a continuing present or future operation. A similar situation arose before Holland J. in Baulkham Hills Shire Council v. Iaria (1977) 38 LGRA 345, in an aspect of His Honour's decision which was not addressed in the subsequent appeals brought therefrom. There the Council had commenced civil enforcement proceedings alleging a breach of the provisions of a prescribed planning scheme. After the proceedings had commenced the prescribed planning scheme was suspended by action taken under s.342Y of the Local Government Act 1919 and the scheme was effectively replaced by an interim development order. When the proceedings came before His Honour the Plaintiff claimed additional relief in respect of contravention of the interim development order (p.347). After His Honour had concluded that the land use by the defendants was not unlawful under the interim development order (p.351) His Honour next considered the question whether relief should be granted for contravention of the planning scheme. In this respect His Honour referred at p.351 to s.342Y(4) of the Local Government Act which was not materially different from s.34(4) of the Environmental Planning and Assessment Act. His Honour deals with the question in the following passage at p.352:- "Even if previously justified, the specific relief sought is now inappropriate. Mr. Hemmings acknowledged this, but asked for a declaration that prior to the suspension of the scheme the defendants' user was in contravention thereof. To do this would be to declare what is now only history, and nothing has been put to me to show that it would serve any useful purpose. Therefore, I would decline to make such a declaration, and I do not think that by declining to do so I would be acting contrary to the rights of the plaintiff under s.342Y(4)(b); but the question whether, until the scheme was suspended, the proceedings were well founded is relevant on costs and, for this reason at least, I think I must deal with it." I would respectfully adopt His Honour's reasoning in holding that any attempt to enforce the relevant condition of the development consent in these proceedings would be to seek to enforce what is now ancient history and would serve no useful purpose. Accordingly I uphold the Respondent's defence based upon the express permission granted by the supervening 1985 Warringah Local Environmental Plan and would for that reason dismiss the application. In view of my conclusion that the application must fail I shall deal (for the sake of completeness) very briefly with the question of the proper construction of condition 9. The first matter to note is the condition is expressed cryptically. Obviously what is intended is the imposition of an evening (or early morning) curfew. That is how the parties have sensibly regarded the condition. The question at issue can be stated simply - does the expression "operating hours" mean 'trading or selling hours' as contended by the Respondent or does it have a wider application to cover all activities carried out on the premises including those activities undertaken after trading has ceased. The decision on this question is in my opinion ultimately one of impression. I have come to the conclusion that the expression has the meaning contended for by the Respondent. I do not deny that the condition raises difficulties. The decision of Woolf J. in Miah v. The Secretary of State for the Environment (1986 JPEL 756) demonstrates the latent ambiguity in a condition of development consent limiting the times that a restaurant should be open to the public. The condition stated that the restaurant "should not be open to the public after 12 midnight". Did this condition mean that customers had to leave the restaurant by midnight (as the Inspector had held particularly because of the proximity of residential development) or did it mean that the members of the public must not have access to the restaurant after midnight (so that patrons already on the premises at that time might finish their meal) as was contended by the Applicant? The report states His Lordships conclusions at pp.758/759:- "He did not think it was helpful to interpret this condition by examining whether doors were closed or secured in some other way. That was an unrealistic approach to a restaurant. Equally, he did not think it was right to regard this condition as having the effect of preventing any member of the public being on the premises one minute after midnight. What was intended by this condition was that the premises should be closed at midnight. That was to say that the restaurant should cease to be open to the public for the serving of meals after that time. However, if, when midnight struck, there were persons in the restaurant who were already fully engaged in eating a meal, that did not mean that they forthwith - rather like Cinderella - had to leave the restaurant irrespective of the state of the table at that moment. The restaurant was not open to the public within the meaning of the condition if those persons had a reasonable time in which to finish their meal. He was not reading into the condition any implied term, but merely giving effect to the words "open to the public." In the same way as after a store was closed some members of the public would take a little while to leave the premises and the premises were not open to the public, so a restaurant was not open to the public if it allowed those persons a short time in which to finish their meal upon which they were engaged when midnight struck. However, the effect of this did not permit what was happening in those premises to occur where there were still members of the public present, making a noise, between two a.m. and three a.m. That was something wholly different. The general effect of the condition was to require the premises to close at 12 o'clock on weekdays and not to be open at all on Sundays." I cite this case merely as an illustration of the difficulties that can be created by an apparently simply worded condition. In the present case the Applicant made much of the fact that the condition used the term "operating hours" instead of "opening/closing hours" or "trading hours". I do not think this choice of wording carries the significance that the Applicant would have attributed to it. It may be accepted that the term "opening and closing hours" is more commonly employed in relation to shops etc. - see Division 3 of Part IV of the Factories Shops and Industries Act 1962. However I do not consider that the term "operating hours" as employed in the present case either in its intent or effect means anything more than trading hours or selling hours or opening/closing hours. The Applicant urged its interpretation in preference to that contended by the Respondent because the former would enhance or protect residential amenity of the neighbourhood. I think this would inevitably be the result. However whereas it may be accepted that in construing the relevant development consent and condition the legitimate interests of the general public must be regarded and there is no room for the application of the contra proferentes rule of construction - see Crisp from the Fens Ltd. v. Rutland County Council (1950) 1 P & CR 48 at p.57 (per Singleton LJ) I do not think that it is legitimate under the guise of undertaking the task of statutory interpretation to arrive at a result which was not intended or effected by the words employed. Finally the Applicant sought to support its interpretation of the condition by relying on a number of meanings of the word "operating" supplied by the Macquarie Dictionary - especially meanings 1 and 9. I do not think this reliance sustains the argument. In my opinion in the context of the grant of a development consent for a take-away Pizza Shop the term "operating hours" plainly relates to trading hours, ie hours during which customers can order and receive pizzas in the course of trading. This in my opinion is the ordinary and natural meaning of the term in its present context. Finally I should mention that in the present case the task of construction has not been aided by reference to the development application (which was not in evidence) or any other extrinsic materials. Although the question is wholly a matter of statutory construction I note in passing that the construction of condition 9 I have adopted is consistent with the view expressed in the Applicant's letter to the Respondent's predecessor in title as far back as 23rd April, 1985. If I were wrong in each of the conclusions I have exopressed I would not, on discretionary grounds, have refused the relief claimed. Accordingly I order the application be dismissed, exhibits be return and costs be reserved. 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.