McREDMOND v TASSELL [2002] NSWSC 1163

New South Wales Supreme Court

CITATION : McREDMOND v TASSELL [2002] NSWSC 1163 FILE NUMBER(S) : SC 13634/01 HEARING DATE(S) : 8 April 2002 JUDGMENT DATE : 5 December 2002

PARTIES : Plaintiffs: John McRedmond & 3 ors Defendant: Sean Garnet Tassell JUDGMENT OF : Hulme J at 1

LOWER COURT Licensing Court of NSW JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER :

COUNSEL : Plaintiff: J Kildea Defendant: SB Austin QC SOLICITORS : Plaintiff: Slater & Elias Defendant: Back Schwartz Vaughan DECISION : The Summons is dismissed with costs

- 17 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HULME J Thursday, 5 December 2002

13634/01 John McREDMOND AND ORS v Shaun Garnet TASSELL JUDGMENT 1 HULME J: By Summons filed on 23 November 2001 the Plaintiffs seek the following orders:- 1. A declaration that the Licensing Court of New South Wales erred in law in granting the application by the Defendant for the conditional removal of a Hotelier's Licence from Stephen Street, Urana to premises at 320 Hillsborough Road, Warners Bay. 2. An order that the application for conditional removal be refused. 3. Alternatively, an order that the matter be remitted to the Licensing Court of New South Wales to be heard and determined in accordance with the law. 2 At the hearing before me the Plaintiff's complaints were advanced under 6 headings. It is convenient to deal with them generally seriatim.

A. Amended Plan 3 The first complaint was that at the hearing before the Licensing Court the Defendant was allowed to proceed on the basis of an amended plan of the proposed licensed premises. 4 The application to the Licensing Court was lodged on 18 April 2002. At that time the premises to which removal was sought were of the nature of a large rustic barn and it was proposed that before removal was effected, there be extensive modifications and extensions to that building, the construction of a freestanding bottle shop and storage "shed" and a freestanding 50 suite motel and the provision of substantial car parking. Plans showing what was proposed accompanied the application and those plans had been approved by the Lake Macquarie Shire Council on 30 March 2000. 5 Subsequently, the Defendant sought to amend the plans and on 7 December 2000 the Shire Council approved the amended plans. However, the Council's notation of approval is dated 30 March 2000, an approach taken apparently with the intent of ensuring that the life and period of the original consent was not extended by virtue of the consent to the modified plan. The approach also reflects section 96(4) of the Environmental Planning and Assessment Act 1979 which provides:- "Modification of a development consent in accordance with this Section is not to be construed as the granting of development consent under this Part but a reference in this or any other Act to a development consent is a reference to the development consent so modified." 6 Although it is not, I think, necessary to record all of the changes in detail, they are described in an Affidavit of George Smith which was tendered in the proceedings before me as including an increase in floor area of some 225 square metres in one place, the covering of another 100 square metres by a "pergola with polycarbonate sheeting", the addition of some covered walkways between the motel and the original building, a decrease in the size of one internal room and a corresponding increase in another and the paving of what was originally depicted as a landscaped and treed area. 7 In support of their application the Plaintiffs relied on the terms of s40 of the Liquor Act which, so far as is presently material, provides:- "(1) An application… 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. (3) Upon the prescribed notice being given to any objectors to an application that has been conditionally granted, and upon such terms as the court thinks fit, the court may hear and determine an application: (a) to amend a conditional grant, or (b) … (5) Before granting a conditional application, the court may require to be lodged with the court a further approved plan that shows an amendment required by the court to be made to the approved plan or plans previously lodged in relation to the application. (6) 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 any development consent required under the Environmental Planning & Assessment Act 1979 for the carrying out of the work represented by the plan, or evidence that such consent is not required." 8 It was submitted firstly, that the terms of the section did not permit the application to proceed on the basis of a plan other than that lodged at the time the application was made; secondly, that as the plan on which the Defendant proceeded was not in existence at the time the application was made, he was not entitled to proceed on the basis of that document; and thirdly, while s40(5) contemplated an amended plan, it was only a plan which the court required to be amended. Inter alia, reliance was placed on the requirement in the Liquor Act for applications to be advertised – an object which, so it was said, was liable to be defeated if amendment by an applicant was permitted. 9 For his part, the Defendant placed reliance on a decision of Smart J in Hill v King (unreported, 10 June 1993) at p 16-17 to the effect that while there must be an approved plan at the time of an application, it is sufficient if it be lodged with the court prior to the court's making of any decision. Jurisdiction having been conferred because there was such a plan at the time the subject application was lodged, it was a matter for the discretion of the Licensing Court whether to permit an amendment. Reference was made to the terms of s15 of the Act and reliance also placed on Haworth v Cook (1976) 1 NSWLR 153 as demonstrating the width of the power of amendment which the Licensing Court has. Section 15 provides:- "On the hearing of an application under this or any other act, the court may, of its own motion or, on such terms as to costs or adjournment as it thinks fit, on the application of a party to the proceedings: (a) Permit the lodging or amendment of any notice or of any document or instrument necessary to the proceedings before the court, and (b) Disregard any omission, error, defect or insufficiency in any such notice, document or instrument…" 10 The width of that section leads to the conclusion that the court had power to permit the Defendant to rely on the amended plan. I acknowledge that there are indications in s40 itself and in the matters to which the Plaintiffs referred which argue against this conclusion. Thus if notice under sub-section (3) is required before an application to amend a conditional grant is heard, why should amendment of the original application by amendment of the plan proposed be permitted without notification to those whose interests might be affected? On the other hand, in the situation envisaged by sub-section 3, the objectors are person who have in effect become parties to the proceedings. It would, I suspect, be a fairly rare case where the alterations were likely to inspire objections by others who were not disposed to become objectors otherwise though that possibility is, no doubt something that the Court would bear in mind before permitting any amendments and in deciding whether terms as to further advertisement should be imposed. 11 In any event the terms of s15 are broad and clear and I find it impossible to regard the indications on which the Plaintiffs rely as displacing the full operation of those terms. This ground fails.