Revilla Pty Limited v The Council of the City of Sydney

Introduction 1 The applicant, Revilla Pty Limited, has for several years had an approval, granted by the respondent, the Council of the City of Sydney ("the council"), for a place of public entertainment at the Pavilion Hotel, No. 580 George Street, Sydney. The applicant has applied for the renewal of that approval. The application for renewal was refused by the council and the applicant has appealed to the Court. 2 The applicant now applies by a notice of motion for an order striking out a number of issues raised by the council in its statement of issues on the ground that they are extraneous and irrelevant to the exercise of the discretion to renew an approval for a use of a building as a place of public entertainment. 3 The statement of issues filed by the council is a wide-ranging document which raises not only the physical suitability of the premises for the purpose, but also the way in which the venue is managed and the behaviour of persons who attend the premises. Many of these management and behavioural matters are the subject of a complaint by the council under s 104 of the Liquor Act 1982 and which is currently before the Liquor Administration Board. It is these matters that are said to be extraneous and irrelevant to a consideration of an application for the renewal of an approval of a place of public entertainment under s 107 of the Local Government Act 1993. 4 The question for consideration is: what are the relevant matters for consideration of an application under s 107 of the Local Government Act 1993 for the renewal of an approval for a place of public entertainment? This in turn requires a consideration of the relevant legislation. 5 Section 68 of the Local Government Act provides that a person may carry out an activity specified in the table to that section only with the prior approval of the council, except in so far as the Act, the regulations or a local policy allow the activity to be carried out without that approval. The table lists, inter alia, the use of a building as a place of public entertainment. 6 Section 89 of the Act sets out the matters for consideration in determining an application for an approval. It is as follows: 89 Matters for consideration (1) In determining an application, the council: (a) must not approve the application if the activity or the carrying out of the activity for which approval is sought would not comply with the requirements of any relevant regulation, and (b) must take into consideration any criteria in a local policy adopted under Part 3 by the council which are relevant to the subject-matter of the application, and (c) must take into consideration the principles of ecologically sustainable development. (2) If no requirements are prescribed for the purposes of subsection (1) (a), and no criteria are adopted for the purposes of subsection (1) (b), the council in determining an application: (a) is to take into consideration, in addition to the principles of ecologically sustainable development, all matters relevant to the application, and (b) is to seek to give effect to the applicant's objectives to the extent to which they are compatible with the public interest. (3) Without limiting subsection (2), in considering the public interest the matters the council is to consider include: (a) protection of the environment, and (b) protection of public health, safety and convenience, and (c) any items of cultural and heritage significance which might be affected. 7 In the present case, neither party has drawn the Court's attention to any relevant local policy as described in sub-s (1)(b). The Local Government (Approvals) Regulation 1999, however, prescribes certain requirements for the purposes of sub-s (1)(a). As a consequence, sub-ss (2) and (3) of s 89 do not apply. 8 Part 2 of the Local Government (Approvals) Regulation 1999 sets out the matters to be taken into consideration in determining whether to approve the use of a building as a place of public entertainment. These are: whether any consent required under the Environmental Planning and Assessment Act 1979 ("the EP&A Act) for the use of the building or structure for the purpose has been given; whether such a use contravenes provisions of the EP&A Act or of any environmental planning instrument within the meaning of that Act, whether the building will be structurally sound, whether the building will contain reasonable provision for the safety of persons in the event of fire and prevention of the spread of fire, whether the relevant provisions of the Building Code of Australia are complied with, and other provisions of a like nature. 9 Section 94 of the Act states that the council may determine an application by granting approval either unconditionally or subject to conditions, or by refusing approval. A condition may require that a specified aspect of the activity that is ancillary to the core purpose of the activity be carried out to the satisfaction of the council (s 98 of the Act). The consent authority cannot, however, impose conditions about anything, which is not related to the subject matter, scope and purpose of the Act.

10 Section 107(1) of the states: 107 Can approvals be extended or renewed? (1) The council may determine to extend or renew an approval (but without changing the terms of the approval) if satisfied there is good cause for doing so. 11 That section goes on to provide that certain procedural provisions apply to an application for extension or renewal, as they apply to an application for an approval. 12 Mrs J C Kelly, appearing for the council, submits that the words "if satisfied there is good cause" in s 107(1) have not been considered, but have been considered in the context of s 95A(2) of the EP&A Act (and its predecessor, the former s 99). Section 95A(2) (and its predecessor) allows a consent authority to grant an extension to the lapsing period for a development consent if satisfied that the applicant has shown "good cause". See, for example, Derodo Pty Ltd (in Liq) & Ors v Ku-Ring-Gai Municipal Council (1992) 77 LGERA 1 at 26, Green v Kogarah Municipal Council (1998) 99 LGERA 24 at 27 and CSR Ltd v Fairfield City Council (2001) 115 LGERA 361 at 371. Whilst these cases confirm the width of the expression, it was held by Pearlman J in CSR v Fairfield City Council that the exercise of the discretion does not involve a re-consideration as to whether or not the development consent should have been granted in the first place (at 372). 13 I am prepared to adopt the same approach in the application of s 107(1) of the Act as adopted by Pearlman J in CSR Ltd v Fairfield City Council. In particular, the comments of Pearlman J are reinforced by the limitation appearing within s 107(1) itself, under which the consent authority cannot change the terms of the approval. 14 I accept, therefore, the submission of Mr S B Austin QC, appearing for the applicant, that the considerations on an application for renewal of an approval cannot be wider than those which apply to the grant of an approval. The considerations on an application for the grant of an approval are, as noted above, those set out in s 89. Moreover, as noted above, where requirements are prescribed for the purpose of s 89(1), the consent authority cannot take into consideration the matters described in sub-ss (2) and (3). The consent authority is limited to a consideration of the matters set out in sub-s (1), which include those in Pt 2 of the Local Government (Approvals) Regulation 1999. That is to say, the consent authority cannot take into consideration such matters as protection of the environment, or protection of public health, safety and convenience. The issues to which the applicant makes objection fall within these kinds of issues. They are properly matters for consideration on any application for consent under the EP&A Act, or for the Liquor Admission Board in its consideration of the complaint under s 104 of the Liquor Act. 15 It follows that the disputed issues must be struck out. The formal orders are as follows:

The following paragraphs of the respondent's statement of issues dated 10 November 2003 are struck out: Paragraphs 2, 3, 4(a), 4(d), 4(e), 4(f), 5 and 6.
The question of costs is reserved.

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