Giddings v Ashfield Council

Land and Environment Court (NSW)|1999-09-21|Before: Lloyd J

This matter has been referred to me for the separate determination of a preliminary question of law pursuant to Pt 31 r 2 of the Supreme Court Rules which applies in this Court. The question as framed by the respondent is in fact a twofold question: (1) Is the proposed development an hotel?

(2) Is the proposed development prohibited development? 2. It seems to me that the twofold question is not a question of law at all, but a question of fact. The parties accepted that it was a question of fact. Nevertheless the parties saw some utility in the question being resolved as a preliminary question. I am satisfied that Pt 31 r 2 of the Supreme Court Rules gives me jurisdiction to do so.

The land to which the development application relates is subject to Ashfield Local Environmental Plan 1985 ("the LEP") under which it is within zone No 3(b) (Special Business zone). Item 2 of the zoning table lists a number of purposes for which development may only be carried out with development consent. Those purposes include, relevantly, " drive-in take-away establishments " and " taverns ". Item 3 of the zoning table lists prohibited development as: " Any purpose other than a purpose included in Item 2 ".

The LEP adopts, with certain exceptions which are not presently relevant, the Environmental Planning & Assessment Model Provisions 1980 ("the Model Provisions"). Clause 4(1) of the Model Provisions relevantly provides: 4(1) Except insofar as the context or subject-matter of the Local Environmental Plan otherwise indicates or requires: .... "Hotel" means the premises to which a hotelier's licence granted under the Liquor Act 1982 relates.

Clause 4(1) of the Model Provisions previously contained a definition of " tavern ", which was deleted by amendments made to the Model Provisions in 1992. The amendment also substituted the previous definition of hotel with the present definition, quoted above. The amendment was made by the Minister by order pursuant to s 33 of the EP&A Act. According to the explanatory note which accompanied the order, " the order omits the obsolescent defined term ' tavern ' (now covered by ' hotel' )" and updated the definition of " hotel ".

The deletion of the " obsolescent defined term ' tavern ' " followed the deletion of that term from the Liquor Act 1982 and which now makes no reference to the term " tavern ". The Liquor Act 1912 (now repealed) previously contained references to the term " tavern ".

The Liquor Act 1982 defines " hotelier's licence " to mean: A licence that, subject to the Act and the conditions of the licence, authorises the licensee to sell liquor by retail on licensed premises, whether or not for consumption on those premises . (Section 4)

The Liquor Act , apart from defining " hotelier's licence ", also defines ( inter alia ) the following licences: ' Off-licence ' means a licence that, subject to this Act and the conditions of the licence, authorises the licensee to sell liquor on the licensed premises, but only for consumption otherwise than on those premises.

' On-licence ' means a licence that, subject to this Act and the conditions of the licence, authorises the licensee to sell liquor on the licensed premises, but only for consumption on those premises .

A hotelier's licence may be granted without any need for the provision of residential accommodation in the premises to which the licence relates (s 49(2)). The holder of a hotelier's licence may apply to the Licensing Court to modify or dispense with a requirement or condition for the provision of accommodation. Provision is thus made for what previously were taverns under the 1912 Act.

It follows that a hotelier's licence allows the licensee to sell liquor for consumption on or off the licensed premises. An off-licence allows the licensee to sell liquor on the licensed premises, but only for consumption off the licensed premises. An on-licence allows the licensee to sell liquor on the licensed premises, but only for consumption on those premises.

A question arose during argument as to whether the proposed development could be the subject of either an off-licence or an on-licence subject to specified conditions, such as allowing the consumption of liquor on the premises in the case of an off-licence, or allowing take-away sales in the case of an on-licence. This would appear to be allowable under s 74A(1) of the Liquor Act and would obviate the need to obtain a hotelier's licence, which allows the sale of liquor for consumption both on or off the premises. Before such a conditional licence may be granted, however, the Liquor Administration Board must satisfy itself that no other licence under the Act is suitable for the purpose of conducting the business proposed to be carried on pursuant to a licence relating to the premises (s 74A(2)(a1)). In the present case it is clear that a hotelier's licence is suitable for the intended purpose of the development in this case, so that a conditional off-licence or a conditional on-licence would not be granted.

Mr S M Berveling, who appears for the respondent, submits that since the proposed development must be one for which a hotelier's licence under the Liquor Act must be granted, it comes within the definition of "hotel" (as noted in paragraph 5 above). A hotel is not one of the purposes listed under Item 2 of the Zoning Table as being permissible with development consent. A hotel comes under Item 3 of the Zoning Table, being a purpose other than a purpose included in Item 2: it is thus a prohibited use. Moreover, according to the submission, even if the proposed use could properly be described as a tavern, the fact that the purpose of use falls into two or more categories one of which is prohibited and one of which is permissible, then the purpose is prohibited. (Reference was made to C D Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA 270 at 271-272 and Egan v Hawkesbury Shire Council (1993) 79 LGERA 321 at 329.)

Mr M H Tobias QC, who appears for the applicant, made the following submissions. When the LEP came into force a tavern was a permissible use whereas as a hotel was prohibited and each was separately defined in the Model Provisions: the definitions were mutually exclusive. In 1992 the definition of tavern was deleted from the Model Provisions and a new definition of hotel was substituted. The amendments were clearly intended to bring those definitions into line with the 1982 Act and were not intended, by a side wind as it were, to effect a substantive, back-door amendment to the LEP by deleting taverns from the list of uses permissible with consent. The definitions in the Model Provisions do not apply where the context or subject matter otherwise indicates or requires (clause 4(1)). The present context, in which the zoning table expressly allows taverns with consent, otherwise indicates or requires that the ordinary meaning of tavern is to apply. So, too, does the ordinary meaning of " hotel " apply, being an innominate use. The ordinary meaning of tavern is a place which provides food and drink and the ordinary meaning of hotel is a place which provides accommodation. The proposed use not being a hotel but a tavern is thus permissible with consent.

I am inclined to the view that the submissions of Mr Tobias QC are to be preferred. I am inclined to this view for the following reasons.

In Bentham v Kiama Municipal Council (1986) 59 LGRA 94, Stein J was required to consider the defined meanings of " hotel " and " tavern " in the Model Provisions. Stein J (correctly in my respectful opinion) identified the problem as follows: The Liquor Act 1912 was repealed by the Liquor Act 1982 which commenced on 1 July 1983. The licence attaching to hotel premises under the 1912 Act known as a ' publican's ' licence became, by virtue of the 1982 Act, an ' hotelier's ' licence. Neither the 1912 nor 1982 Liquor Act contains definitions of ' hotel ' though it appears that to have a publican's or hotelier's licence it is necessary to provide some accommodation. However, this requirement may be dispensed with by the Licensing Court. While the 1912 Act (by virtue of 1972 amendments) provided for licences for taverns (s 26B) such licences were endorsed upon an existing publican's licence and the proprietor was not required to provide accommodation. All references to taverns disappeared in the 1982 Act however, whilst the holder of a hotelier's licence is required to provide accommodation, the Licensing Court may dispense with this and in effect grant the equivalent of a tavern licence. (at 97 )

Stein J went on to make the following observations (at 97-98): I must say that I find the definitions of ' hotel ' and ' tavern ' in the model provisions by cross-reference to the Liquor Act 1912 otiose and indeed such as can only produce difficulties of application to given situations. To my thinking it is time that such definitions are replaced by appropriate planning definitions. The ' premises ' specified in a publican's licence under the Liquor Act 1912 is a meaningless definition for planning law. A publican may have to provide accommodation (but not always) whilst a motel always does. An ' hotel ' is not required to have a liquor licence since it may not wish to sell liquor. A tavern does not include accommodation and, in any event, no longer exists by such name.

Stein J held (at 98) that because the definitions of " hotel " and " tavern " in the Model Provisions are of such limited assistance he was entitled to go outside them and seek what assistance he may from the common meaning of the words.

In Hunter Valley Vineyards Association v Cessnock City Council (7 October 1988, unreported) Cripps J was also required to consider the defined meanings of " hotel " and " tavern " in the Model Provisions. Cripps J held that since the commencement of the 1982 Liquor Act , the only sensible interpretation of the statutory provisions is that a " tavern " in the Model Provisions [defined as " any premises specified in a publican's licence endorsed as a tavern granted under the Liquor Act 1912" ] means a hotelier's licence modified to dispense with the requirement for the provision of accommodation. His Honour rejected a submission that the Model Provisions are to be read as if " taverns " became " hotels ". In his Honour's opinion a " hotel " meant any premises specified in a hotelier's licence but would not include a licence endorsed so as to obviate the requirement for accommodation. His Honour was alternatively prepared to adopt the reasoning of Stein J in Bentham .

As I have noted in paragraph 4 above, one of the purposes for which development may be carried out with development consent under Item 2 of the zoning table is " drive-in take-away establishments . A drive-through bottle shop is, in my opinion, a drive-in take-away establishment. Persons drive in and take away their purchases for consumption elsewhere. Mr Berveling sought to confine a " drive-in take-away establishment " to take-away food outlets. That, in my opinion, is to read into the phrase words which are not there. The phrase is equally inclusive of take-away drink outlets. The drive-through bottle shop, considered in isolation, would only require an off-licence under a Liquor Act. It would not be a hotel as defined in the Model Provisions. It follows that the drive-through bottle shop, considered in isolation, is permissible with development consent.

The tavern component, considered in isolation, would only require an on-licence under the Liquor Act. It would not be a hotel as defined in the Model Provisions. It follows that the tavern component, absent the drive-through bottle shop, would not be a hotel. Considered in isolation it would also be permissible with development consent.

It follows that if the drive-through bottle shop and the tavern were in adjoining but separate premises, each would be a use which is permissible with development consent since neither would be within the definition of " hotel " under the Model Provisions.

It is only the fact that the proposed use contains both a drive-through bottle shop and a tavern that the appropriate licence under the Liquor Act becomes a hotelier's licence. The absurd consequence, for which Mr Berveling contends, that the combined use is thus prohibited under the LEP, whilst separate but adjoining uses for a drive-through bottle shop and for a tavern are permissible, leads me to the conclusion that the context and subject matter of the LEP requires that the ordinary meaning of tavern and of hotel is indicated or required, as allowed by clause 4(1) of the Model Provisions. The zoning table in the LEP governs land uses. It could not have been intended that the zoning table would be governed solely by the classes of licence issues under the Liquor Act . It would be artificial in the extreme to say that a use such as that which is proposed here is prohibited and yet be permissible if an imaginary line of subdivision were to be drawn between the bottle shop and the tavern component of the development, both being permissible uses in themselves.

The conclusion to which I have come is that (a) for the reasons expressed by Stein J in Bentham v Kiama , (b) for the additional reasons expressed by Cripps J in Hunter Valley Vineyards Association v Cessnock City Council and (c) for the additional reasons I have expressed in paragraphs 20-23 inclusive above, the ordinary meanings of the words " hotel " and " tavern " apply. The ordinary meanings are as follows: Macquarie Dictionary Definitions :

tavern premises where food and alcoholic drink are served;

hotel building in which accommodation and food and usu. Alcoholic drinks are available; public house.

Inn House providing lodging, food etc, for payment, esp for travellers; tavern;

Public House establishment providing alcoholic liquors to be consumed on the premises;

Hotel house providing lodging, food, etc for payment.

The conclusion to which I have come is that for the abovementioned reasons, together with those advanced by Mr Tobias QC, a tavern is a place where food and alcoholic drink are served but no accommodation is provided, that is to say, it is premises to which a hotelier's licence relates but which is endorsed so as to obviate the requirement for accommodation; and a hotel means any premises specified in a hotelier's licence but which does not include a licence endorsed so as to obviate the requirement for accommodation. In the present case the proposed development is for the dual use of a drive-in take-away establishment and a tavern, both of which are permissible with development consent. The proposed development is not for the purpose of a hotel. The definition of hotel in the Model Provisions is not, in my opinion, intended to apply to a tavern. As I have said, a hotel, in my opinion, means premises specified in a hotelier's licence but does not include a licence endorsed so as to obviate the requirement for accommodation. This conclusion makes it unnecessary to consider Mr Berveling's further submission based upon C B Investments and Egan .

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Land and Environment Court of New South Wales CITATION: Giddings v Ashfield Council [1999] NSWLEC 238

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