Revilla Pty Limited v The Council of the City of Sydney

LEGAL REPRESENTATIVES: RESPONDENT: Mr A E Galasso (barrister) SOLICITORS: City Prosecutor's Office Council of the City of Sydney

JUDGMENT:

• 7 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

REVILLA PTY LIMITED v THE COUNCIL OF THE CITY OF SYDNEY [2004] NSWLEC 529

JUDGMENT (No. 2) Introduction 1 The applicant operates a hotel known as the "Pavilion Hotel" from premises at No. 580 George Street, Sydney. Until late 2003, the applicant held an approval under s 68 of the Local Government Act 1993 ("the LG Act") to permit the use of the premises as a place of public entertainment. In or about August 2003 the applicant applied to renew that approval, but the council determined not to renew it. In October 2003, the applicant appealed to this Court against the council's refusal to renew the approval. In those proceedings the respondent sought to raise matters in its statement of issues concerning the management of the premises and the behaviour of its patrons. In Revilla Pty Limited v The Council of the City of Sydney [2003] NSWLEC 343 ("Revilla (No. 1)"), I ordered that certain paragraphs of the statement of issues be struck out. The appeal proceeded to be heard before Commissioner Bly, who determined that the renewal application be refused. 2 On 19 March 2004, the applicant made an application for the grant of a fresh approval under s 68 of the LG Act. The applicant has now appealed to the Court against the council's deemed refusal of its application. The statement of issues filed by the council in relation to these proceedings raises allegations of patron misbehaviour and of inappropriate staff responses thereto at the applicant's premises. The applicant again seeks orders that certain paragraphs of the statement of issues raising these allegations be struck out. 3 Section 68 of the LG Act states that a person may carry out certain specified activities only with the prior approval of the council. Among the specified activities is the use of a building as a place of public entertainment. Section 94 states that the council may determine an application by granting approval either unconditionally or subject to conditions, or by refusing the application. The argument has focussed, however, on s 89 of the LG Act which is headed "Matters for Consideration", and whether the consent authority is limited in its consideration to the matters set out in that section. 4 Section 89 of the LG Act states: 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 ecological 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. 5 There is no relevant local policy as described in sub-s (1)(b). There is, however, a relevant regulation consistent with sub-s (1)(a), such that sub-ss (2) and (3) do not apply in this instance. Part 2 of the Local Government (Approvals) Regulation 1999 ("the LG Regulation") sets out the matters which are required to be taken into account by a council in the determination of an application for approval under s 68 of the LG Act. In particular, cl 7 states: 7 Matters to be taken into consideration by council in determining whether to approve the use of a building or temporary structure as a place of public entertainment (1) In determining an application for approval to use a building or temporary structure as a place of public entertainment the council must take the following matters into consideration: (a) whether any consent required under the Environmental Planning and Assessment Act 1979 for the use of the building or structure for the purpose has been given, (b) whether the use of the building or structure for the purpose contravenes provisions of that Act or of any environmental planning instrument within the meaning of that Act, in so far as the Act or instrument applies to the land. (2) If the application relates to an existing building or temporary structure, the council must not approve the use of the building or structure as a place of public entertainment unless the council, having regard to the circumstances of the case, is of the opinion that the building or structure, with such alterations as it may require: (a) will be structurally sound and capable of withstanding the loadings likely to arise from the use, and (b) will contain reasonable provision for the safety of persons proposed to be accommodated in the building or structure, in the event of fire, particularly in relation to egress, and (c) will contain reasonable provision for the prevention or suppression of fire and the prevention of the spread of fire. 6 Where approval is granted, it is subject to the deemed conditions set out in Schedule 1 of the LG Regulation, which deals with operational matters specifically related to the matters in cl 7(2). The parties' submissions 7 Mr A Hatzis, appearing for the applicant, relies upon the following submissions. (a) The legislative provisions do not empower the consent authority, in determining an application for a place of public entertainment, to consider matters falling outside the scope of s 89(1) of the LG Act and Pt 2 of the LG Regulation . (b) The prescription in the regulations of requirements contemplated under s 89(1)(a) specifically and expressly excludes the wider considerations which might otherwise be taken into account under s 89(2) and (3) of the LG Act . The consent authority is limited to a consideration of the matters contained in the LG Regulation ( Revilla (No. 1)) . (c) Section 89(1) of the LG Act contains clear and unambiguous terms that cover the field and set out the scope of the matters to be considered. (d) A proper construction of s 89(1) in its statutory context demonstrates that the subsection is exhaustive of the matters that may be considered. (e) The wider issues sought to be litigated by the respondent, are irrelevant and extraneous to the exercise of the discretion conferred under s 68 of the LG Act . 8 Mr A Galasso, appearing for the respondent, relies upon the following submissions. (a) The judgment in Revilla (No. 1) does not determine the present motion for the following reasons: (i) it was concerned with a renewal application, not a fresh application; and (ii) on a proper analysis, with respect, was not correctly decided. (b) Although s 89 is entitled "matters for consideration", that heading does not accurately represent the essential legal character of the provision, nor does it form part of the LG Act (LG Act s 6; Interpretation Act 1987 s 35(2)). Section 89(1)(a) imposes a constraint on the exercise of power and is not concerned with matters to be taken into account by a decision-maker (compare with LG Act s 89(1)(b) & (c) and s 89(2)). (c) The discretion in s 94 is wide. (d) Section 89 does not purport to be an exhaustive list of the considerations that a council may take into account in determining an approval application. Neither does it refer to the matters that a council is forbidden to take into account in making a determination. The matters that are forbidden to be taken into account are to be derived from the subject matter, scope and purpose of the LG Act. The only function of s 89(2) is to specify additional matters that must be taken into account. (e) There is no legislative constraint on the matters to be taken into account by the decision-maker. It is for the decision-maker, therefore, to determine what matters are relevant for consideration (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985) 162 CLR 1 at 39-43). Consideration 9 I now turn to the question of whether s 89(1) is exhaustive of the matters the council can take into consideration in determining the application for approval in this instance. 10 In Revilla (No. 1), I examined the considerations that could be taken into account in determining an application for renewal. In holding that the considerations for an application for renewal could not be wider than those applying to the grant of an approval, I stated (at [14]): 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. 11 Section 89 applies to the determination of a fresh application in the same way that it applies to the determination of an application for renewal. As such, s 89(1) and Pt 2 of the LG Regulation expressly and specifically exclude any other considerations that might be taken into account. 12 An examination of the statutory context of s 89(1) reinforces this construction. Subsection (2) states that "[i]f 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" must take into account the other considerations listed therein. Consequently, consideration of these additional matters is confined to the situation where no requirements are prescribed and no criteria are adopted. This limitation reinforces the exhaustive nature of the matters prescribed in sub-s (1). 13 The consent authority, therefore, is limited to a consideration of the matters contained in the LG Regulation. Consequently, the issues of protection of public health, safety and convenience are matters that are irrelevant and extraneous to the exercise of the discretion under s 68 and must be struck out. They may, however, be properly matters for consideration on any necessary application for development consent under the Environmental Planning and Assessment Act 1979. Orders 14 The Court makes the following order: The following numbered paragraphs in the respondent's statement of issues dated 2 June 2004 be struck out: Paragraphs 6 (save and except as to the first sentence), 7, 8 (excepting subclauses b and c), 9 and 10. ********** I hereby certify that the preceding 14 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

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