Sally-Anne Maree Fagin v Australian Leisure and Hospitality Group Pty Limited

Background

1. The matter has proceeded by way of a number of notices of motion filed by Ms Fagin and has been the subject of a number of directions and interlocutory hearings. The final hearing proceeded on 4 May 2017 during which Ms Fagin appeared without legal representation and Ms Reid of counsel appeared for Australian Leisure.
2. The background facts are relatively uncontentious and may be summarised as follows: 1. Approximately four years ago, Ms Fagin observed certain works taking place at the rear "open air beer garden" area of the hotel. These works included the installation of a "large video screen and audio speakers". She has since experienced both live and recorded music being played in the beer garden area, which she says has interfered with her enjoyment of her premises and has had a "negative effect" on her health. 2. Prior to the commencement of proceedings Ms Fagin had contacted the operators of the hotel, the police and Council on numerous occasions in relation to her concerns. In an affidavit sworn 23 August 2016, she stated that the conduct had ceased after the commencement of proceedings, however in a further affidavit sworn 4 December 2016, she stated that there had been a resumption of "music in the outdoor beer garden" on and from 3 December 2016. At the hearing, she stated that since commencement of these proceedings, she has heard "live bands" and "recorded music" being played in the beer garden on 3 December 2016, 26 January 2017 and 1 April 2017. 3. Ms Fagin attended the premises on 19 January 2017 and observed that, adjacent to the eastern wall of the beer garden, there were "three planter beds" containing palm trees. She also observed that, against the southern wall, three further planter beds had been built also containing palm trees. At that time, she took photographs. It is clear from the photographs (and the evidence of Ms Fagin, and her markings in manuscript on the photographs) that there are planter beds along the eastern (that is the rear) wall of the beer garden as well as further planter beds along the southern wall. 4. Historical material produced by Council pursuant to applications made on behalf of Australian Leisure under the Government Information (Public Access) Act 2009 (NSW), reveals, amongst other documentation produced, the following planning and development history in relation to the hotel which, according to Council correspondence of 9 September 2016 "…outlines all associated development applications, building certificates and private certifier applications for the property". 1. a building approval was given in 1952 for "Brick Hotel" (although further Council correspondence of 21 September 2016 noted that "…due to the age of the 1950's Building Certificates, Council no longer holds possession as they have been destroyed."); 2. on 16 December 1980 Council (in Development Consent DE80/341) approved internal works to the hotel, and the "endorsed" plans show an existing "beer garden" at the rear of the hotel; 3. in September 1992, Council received an application for a Building Certificate which included a Survey Report (and plan) dated 22 September 1992 certifying that, "On the land is a single and two storey brick building, in use as a hotel, together with a beer garden…"; the plan dated 22 September 1992 attached to the Survey Report depicted a "BEER GARDEN" at the rear of the "CHARLES HOTEL"; 4. on 6 October 1992, Council issued a Building Certificate pursuant to s 317A of the Local Government Act 1919 (NSW) identifying "HOTEL whole" and referencing "Survey Certificate 22/09/92"; 5. on 29 June 2006 a development application was lodged for "proposed alterations and additions", and consent was granted in November 2006 in respect of "internal alterations, enclosure of rear patio, awning over patio and part of beer garden, and use of beer garden" (the details of which will be discussed further below); and 6. in February 2016 Council granted development consent for development described as "Commercial - alterations and additions to existing Charles Hotel" (DA-2015/1535) subject to specific conditions that included "NSW Independent Liquor and Gaming Authority (ILGA) Criteria for Noise Control" (condition 20), "Noise Compliance" (condition 22) and "Noise Restrictions on Hotel Development" (condition 23). 1. Historical material produced by Liquor & Gaming NSW pursuant to a "Premises file archives and records request" made on behalf of Australian Leisure indicates that the hotel has held a "full hotel" liquor licence since at least 4 November 1958. The documents also comprise "plans approved by the Wollongong Licencing Court" - which indicate that there is presently a liquor licence which extends to and includes the beer garden at the rear of the hotel. 2. The development application lodged on 29 June 2006 was lodged by PRD Architects ('PRD') on behalf of the then owners of the hotel, "D and J Wakeford" ('Mr and Mrs Wakeford') (who later sold the hotel to Laundy Pty Limited on 29 January 2010), seeking consent for development described as "Proposed alterations and additions to existing hotel". 3. The development application was accompanied by various documents including a "Statement of Environmental Effects" and four plans styled "Site analysis and location plan DA 01A, 28.6.06"; "Ground floor plan DA 02A, 28.6.06"; "Elevation and Section DA 03A, 28.6.06" (each drawn by PRD) and "Beer Garden Structurals 051202/1 and 051202/3, Jan'06" (drawn by Formmen Pty Ltd, civil engineers). 4. The Statement of Environmental Effects accompanying the development application contained the following description: 3. PROJECT DETAILS 3.1 Design Rationale and Site Planning This proposal is for minor alterations and additions to the existing Charles Hotel. The additional area prepared [sic] is to the rear of the hotel and includes the enclosure of a rear patio area, with an extended awning cover as shown on the application drawings. The existing beer garden is being raised and resurfaced for easier access from the hotel and includes a new boundary wall with water feature to the south and a new disabled ramp to the north. Engineering drawings are included which show the works being undertaken. The addition is complimentary [sic] to the existing architecture of the building, with the awning providing some shaded area to the refurbished existing beer garden. 1. The plans accompanying the development application indicated the extent of the work the subject of the development application and noted: 1. on the "Site analysis and location plan - DA 01A" ('DA 01A'), an area described as "enclosed porch" and "proposed refurbished beer garden"; 2. on the "Ground floor plan - DA 02A" ('DA 02A'), details depicting "new perimeter walls 2m high", "new awning" and "1:14 ramp"; and along the southern wall of the beer garden, the plan showed various details styled "Water feature" and "Planter beds"; 3. on the "Elevation and Section - DA 03A" ('DA 03A'), depictions of a "New water feature", "new wall, planter and water feature" and "new ramp" (in the east elevation) and "new wall and planter" (in the cross-section). It is clear from these two depictions that the then proposal was for planter beds and a water feature along and adjacent to the southern boundary; and 4. on the "Beer Garden Structurals - 051202/1 and 051202/3" depictions of "existing roofed beer garden" and "proposed roofed beer garden", "new concrete floor to patio level" and, in "Section A", detail of a raised floor level and structural detail regarding "slab joints" and "wall joints". 1. At some time before 18 July 2006, and well before the grant of the 2006 Consent (which occurred in November 2006), certain works (otherwise provided for in the plans accompanying the development application) were carried out including the provision of footings, laying of a concrete slab, raising of the floor level and construction of a ramp and external walls. 2. On 18 July 2006, after receipt of the development application, Council wrote to PRD stating: An inspection of the Site and Council's records has found that some of the proposed works had already been constructed. These works include the footings, floor and external walls of the beer garden. Council is unable to give Development Consent to these works and requires that an application for a Building Certificate be submitted for the works that have already been undertaken. The application for a Building Certificate is to be supported by: - an identification of the works; and - Structural certification for all structural elements including footings, retaining walls and the slab. Only those works that have not been undertaken to date may form part of this Development Application. Accordingly you are requested to state in writing what works are outstanding and should a development consent be issued for the proposal it would be limited to those outstanding works. Consent will not be issued until a Building Certificate is issued. 1. On 9 September 2006, an application was made for a Building Certificate by PRD stating that "the part of the building… over which the certificate is required" is "footings, floor and external walls of beer garden at rear of hotel". The "owner consent" section of the application was signed by "D Wakeford". The application was accompanied by a letter dated 1 August 2006 (addressed to and prepared for Mr and Mrs Wakeford) from Formmen Pty Ltd, civil engineers, and a "Survey Report" dated 9 August 2006 (prepared for Mr and Mrs Wakeford by Craig Robson, registered surveyor). Relevantly: 1. the letter from the civil engineers stated: We confirm that the foundation excavations and reinforcement, floor slab preparation and reinforcement, and core filled block wall reinforcement, for the reconstruction of the beer garden at Charles Hotel were all inspected and approved as being in accordance with design documentation, and structurally satisfactory to our requirements. 1. the Survey Report noted: In accordance with your instructions, I have carried out a survey for information purposes of the recent refurbishment of the Beer Garden on that part of the land… at 98 Princes Highway Fairy Meadow… … Upon part of the subject land and wholly within the boundary stands an open Brick and Concrete Beer Garden being part of the existing Brick "Charles Hotel". 1. the Survey Report included a sketch upon which is marked "OPEN BRICK & CONCRETE 'BEER GARDEN'", "RAMP" and depicting walls on the south and east boundary - a copy of the sketch referred to in the Survey Report is reproduced: 1. On 9 October 2006, consequent upon the application made by PRD, Council issued a Building Certificate (BC-2006/221) under s 149D of the EPA Act noting under "Description of Building" the following: Floor and boundary walls of Beer Garden at rear of hotel. 1. On 14 November 2006 Council determined the development application lodged on 29 June 2006 and issued the 2006 Consent. The 2006 Consent expressly incorporated plans DA 01A, DA 02A and DA 03A (only) and described the development as: Description Internal alterations, enclosure of rear patio, awning over patio and part of beer garden and use of beer garden. 1. The 2006 Consent contained the following conditions: Approved Plans and Specifications [3] Construction Certificate A Construction Certificate must be obtained from Council or an Accredited Certifier prior to work commencing. … [5] Occupation Certificate A final Occupation Certificate must be issued by the Principal Certifying Authority prior to occupation or use of the development. In issuing an Occupation Certificate, the Principal Certifying Authority must be satisfied that the requirements of Section 109H of the Environmental Planning and Assessment Act 1979, have been complied with as well as all of the conditions of the Development Consent. Prior to the Commencement of Works [6] Appointment of Principal Certifying Authority Prior to commencement of work, the person having the benefit of the Development Consent and a Construction Certificate must: 6.1 Appoint a Principal Certifying Authority (PCA) and notify Council in writing of the appointment, irrespective of whether Council or an accredited private certifier is appointed (if Council is nominated as the PCA please use the attached form) and 6.2 notify Council in writing (on the attached form) of their intention to commence the erection of the building (at least two days notice is required). The Principal Certifying Authority must determine when inspections and compliance certificates are required. [7] Sign - Supervisor Contact Details Before commencement of any work, a sign must be erected in a prominent, visible position: 7.1 stating that unauthorised entry to the work site is not permitted; 7.2 showing the name, address and telephone number of the Principal Certifying Authority for the work; and 7.3 showing the name and address of the principal contractor in charge of the work site and a telephone number at which that person can be contacted at any time for business purposes. This sign shall be maintained while the work is being carried out and removed upon the completion of the construction works. [8] Enclosure of the site The site must be enclosed with a suitable security fence to prohibit unauthorised access, to be approved by the Private Certifying Authority. No building work is to commence until the fence is erected. … [17] Noise Control No live or recorded music or amplified sound is permitted within the beer garden. 1. The 2006 Consent also contained "Notes" including: [8] The developer is to note that this development consent does not approve the construction of the floor and boundary walls of the beer garden at the rear of the hotel. Building Certificate No. BC-2006/221 has been issued in relation to these works. 1. There is no evidence before the Court that a Construction Certificate or an Occupation Certificate have been issued in relation to the 2006 Consent.

Legislation

1. Given the importance of s 95 of the EPA Act, it is set out below: 95 Lapsing of consent (1) A development consent lapses 5 years after the date from which it operates. (2) However, a consent authority may reduce that period of 5 years in granting development consent. This subsection does not apply to development consent granted to a staged development application under Division 2A for development that requires a subsequent development application and consent. … (4) Development consent for: (a) the erection of a building, or (b) the subdivision of land, or (c) the carrying out of a work, does not lapse if building, engineering or construction work relating to the building, subdivision or work is physically commenced on the land to which the consent applies before the date on which the consent would otherwise lapse under this section. (5) Development consent for development other than that referred to in subsection (4) does not lapse if the use of any land, building or work the subject of that consent is actually commenced before the date on which the consent would otherwise lapse.

Applicant's submissions

1. Ms Fagin provided written and oral submissions. In summary, she submits that it is clear that after the development application was lodged in June 2006, but before its determination in November 2006, significant work was undertaken at the hotel including the laying of a concrete slab and the construction of perimeter walls of the beer garden. She submits that these works which had otherwise been the subject of the development application but which were undertaken before the granting of the 2006 Consent - in particular the laying of the concrete slab and construction of the perimeter walls - are works that were undertaken to facilitate the development the subject of the development application and therefore prevent the 2006 Consent from lapsing. Alternatively, she submits that the installation of planter boxes in the beer garden after the 2006 Consent are works relating to that consent. Accordingly, Australian Leisure's conduct being the erection of a large video screen and audio speakers, insofar as it facilitates the playing of live and recorded music, is in contravention of condition 17 of the 2006 Consent. Ms Fagin presents four discrete arguments: 1. First, the work undertaken prior to the Consent being granted - the raising of the concrete slab from the earlier beer garden floor, the construction of the ramp and the building of the "perimeter wall" around the beer garden amongst other works - are "physical works commenced in relation to the Development Consent". Ms Fagin submits that the ambit of the expression "relating to" in s 95(4) of the EPA Act depends upon the context in which it appears, (relying on Australian Competition and Consumer Commission (ACCC) v Maritime Union of Australia (2001) 114 FCR 472; [2001] FCA 1549 at [68]-[69]) and, in the circumstances, encompasses the works described above even if undertaken before the grant of the 2006 Consent. 2. Second, the EPA Act includes, in the definition of 'development', use of land. The 2006 Consent authorised the "use" of the land for the purposes of a beer garden, and the construction of the concrete slab and the perimeter walls are "physical works" commenced in relation to this use. Ms Fagin submits that constructing the concrete slab and the perimeter walls actually "created" the beer garden and that if the particular works were found by the Court not to "relate to" the consent, in particular regarding the use of the land, it would lead to an "absurd" situation where the developer has (unlawfully) built the substantive part of the beer garden before consent was granted, but is not bound by the conditions/restrictions placed on the consent. 3. Third, in addition to the work performed prior to the consent being granted, there was also physical commencement after the 2006 Consent was granted. Ms Fagin submits that the Survey Report (of 9 August 2006) provided to support the application for the Building Certificate shows only the floor and walls of the beer garden, a ramp and "nothing else". However, other plans, being the Elevation and Section plan and the Ground floor plan, show that the development application "applied to build the planter beds along the eastern and southern wall of the beer garden". In the circumstances where the evidence before the Court (in particular the annexures to her affidavit) show that planter beds had been installed, she submits that certain works specified in the 2006 Consent had been physically commenced after the consent was granted. 4. Fourth, Australian Leisure should be estopped from claiming the 2006 Consent has lapsed because of "unconscionable conduct on the part of the Respondent by building a substantive part of the beer garden before [consent] was granted". Ms Fagin further submitted that a failure of the Court to grant the relief sought would be in effect a reward for conduct which amounts to unconscionable behaviour, in that it would allow Australian Leisure to "have the beer garden they applied for… but allow [it] to escape the conditions imposed by Council for the use of said beer garden".

Respondent's submissions

1. In summary, Australian Leisure's position is that the 2006 Consent lapsed on 14 November 2011. Further, Australian Leisure submits that the video screen has not been in operation since May 2016 (a time prior to the commencement of proceedings) and was removed on about 25 January 2017, and that development consent was not required for installation of the audio speakers. Finally, Australian Leisure submits that the applicant bears the burden of establishing that the 2006 Consent applied to the hotel and that a breach of condition 17 has occurred, and Ms Fagin has not satisfied that burden. In any event, Australian Leisure submits that should the Court find against its submission, the Court should in any event exercise its discretion and not grant the relief sought. These submissions were developed as follows.

Works relating to the 2006 Consent

1. First, Australian Leisure submits that the 2006 Consent has lapsed as the work authorised by the consent was not undertaken. The effect of s 95 of the EPA Act, and in particular s 95(4), is clear and the 2006 Consent did not have any condition reducing the period before lapse pursuant to s 95(2). The 2006 Consent authorised "internal alterations, enclosure of rear patio, awning over patio and part of beer garden and use of beer garden" as depicted in the plans incorporated in the 2006 Consent. Plan DA 02A described the beer garden as "proposed refurbished beer garden". Additionally, plans DA 02A and DA 03A authorised: 1. The construction of a planter box and water feature on the southern wall of the beer garden; 2. Demolition of existing doors from the hotel to the beer garden; 3. Enclosure of the patio adjacent to the existing doors from the hotel to the beer garden and installation of new doors and windows; 4. Removal of internal partitioned walls adjacent to existing doors from the hotel to the beer garden; and 5. An awning extending three metres from the face of the enclosed patio over the beer garden; and the evidence before the Court shows that none of this work was undertaken.
2. Second, Australian Leisure submits that the 2006 Consent contained a number of conditions that were required to be satisfied before works pursuant to the consent could be commenced, and that these conditions were not satisfied. Specifically, condition 3 of the 2006 Consent required a Construction Certificate to be obtained "prior to work commencing", and conditions 6 to 10 of the 2006 Consent set out a number of further matters which were required to be satisfied. Australian Leisure points to the evidence that an application was made under Government Information (Public Access) Act 2009 (NSW) on 22 July 2016 seeking documents and records held by Wollongong Council relating or referring to the 2006 Consent, however no Construction Certificate or Occupation Certificate relating to the 2006 Consent was produced. A further application under the Government Information (Public Access) Act 2009 (NSW) made on 26 August 2016 which "explicitly sought copies of any Construction Certificate or Occupation Certificates relating to the 2006 Consent" similarly did not lead to Council producing any Construction Certificate or Occupation Certificate relating to the 2006 Consent.
3. Third, in relation to the works completed prior to the grant of the 2006 Consent, Australian Leisure submits that the Building Certificate of 9 October 2006 related to "floor and boundary walls of beer garden at rear of hotel" and thus the works the subject of that Building Certificate did not therefore form part of the works approved by the 2006 Consent. In the circumstances, that work does not "relate" to the 2006 Consent in accordance with s 95(4) as those works (the subject of that Building Certificate) were clearly completed prior to the issue of the 2006 Consent and "bore no relationship to the works the subject of the latter grant of consent".
4. Fourth, in relation to the planter boxes, Australian Leisure says that, to the extent that those works required development consent, they are unlawful works and cannot constitute works for the purpose of physical commencement (in accordance with the line of authority commencing with Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132 ('Iron Gates'). This is because, pursuant to condition 3 of the 2006 Consent and s 81A(2) of the EPA Act, construction of planter boxes were works that were required to be carried out after a Construction Certificate had been issued for those works. Again, Australian Leisure submits that searches of the Council's records show no record of any Construction Certificate or Occupation Certificate being issued in relation to 2006 Consent.
5. Fifth, Australian Leisure further submits that the planter boxes shown in the photographs taken by Ms Fagin are clearly configured and located differently to those on the approved plans such that the planter boxes could not have the effect of physically commencing the 2006 Consent.
6. Sixth, in addition, Australian Leisure submits that the evidence of Scott Barwick, consultant town planner (in his affidavit 15 December 2016 and photographs therein) indicating that the works approved in the 2006 Consent were never undertaken, was unchallenged. Mr Barwick examined the architectural plans incorporated in the 2006 Consent and formed an opinion that undertaking the works the subject of the 2006 Consent would have involved demolishing two sets of glass doors to the northern side of the beer garden and two sets of doors to the southern side which provide access to the gaming area in the "current configuration" of the hotel. His evidence that the works authorised by the 2006 Consent would have included the demolition of those doors as well as an internal partition wall, and his inspection (and internal and external photographs) of the subject site on 10 December 2016 revealed that there has been no demolition of the doors in the bar area and the beer garden, no new enclosure to provide a new alignment of the entry flush with the amenities, no new awning, and that the internal walls had not been demolished.

Use of the beer garden

1. In relation to Ms Fagin's position regarding the "use" of the beer garden, Australian Leisure points to the material produced by Council and submits that the evidence now before the Court demonstrates that the use of a beer garden generally in the location of the current beer garden existed prior to the issue of the 2006 Consent. This submission is supported by reference to the: 1. Development Consent DE80/341, of 16 December 1980, approving internal works which denotes an existing beer garden to the rear of the hotel. 2. Application for a Building Certificate made to Council on 22 September 1992, which included a survey showing the beer garden existing in the location generally consistent with the current beer garden. 3. Material from the NSW Independent Liquor and Gaming Authority, which confirms that the hotel has the benefit of a liquor licence issued on 4 November 1958 (which is further confirmed given the "plans approved by the Wollongong Licencing Court" include a licence over the beer garden to the east of the hotel).
2. Australian Leisure submits that in the circumstances where there is evidence before the Court that the Council has destroyed the original development consent or building approval granted in 1952 for the Charles Hotel, and that later documents demonstrate the existence of a beer garden, the Court would apply the presumption of regularity to draw the inference that the beer garden formed part of the lawful use of the site as a hotel prior to the grant of the 2006 Consent: see Manicaland Pty Limited v Strathfield Council No 10487 of 1997 [1997] NSWLEC 196.
3. Australian Leisure submits that, in any event, the use of the beer garden would have been authorised by the general hotel use of the land and could not therefore have the effect of "commencing" the 2006 Consent pursuant to s 95(5) of the EPA Act.

Video screen and audio speakers

1. In relation to the order sought in paragraph 2 of the Summons, Australian Leisure submits: 1. It was made plain at an early stage in the proceedings that the video screen was not in working order and that it would be removed (and a submission was made that it was removed on 25 January 2017). 2. The audio speakers erected on the "outside wall of the hotel" should not be the subject of any order as Ms Fagin has not filed any evidence as to the location of the speakers, any search for consent for the speakers, a requirement to obtain development consent for installation of the speakers, or the power of the Court to remove the speakers. 3. Notwithstanding the above, the speakers are an exempt development pursuant to the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW) ('SEPP'). Specifically, cl 1.15 of the SEPP defines exempt development and cl 1.16 of the SEPP sets out the general requirements for exempt development.
2. In addition to the above, Australian Leisure says it holds a Liquor Licence (no. LIQH400122063) ('Liquor Licence') in relation to the hotel and although there are no acoustic conditions proposed by the Liquor Licence or by the Liquor Act 2007 (NSW) or Liquor Regulation 2008 (NSW), the evidence is that the hotel has the benefit of a later development consent issued by Council on 17 February 2016 for "Commercial - alterations and additions to existing Charles Hotel" ('2016 Consent') which contains acoustic conditions relating to the hotel use of the site. Australian Leisure particularly refers to conditions 20 and 22 which provide that the development the subject of the 2016 Consent is subject to NSW Independent Liquor and Gaming Authority ('ILGA') Criteria for Noise Control and the evidence of Australian Leisure's compliance with these conditions.
3. Condition 20 of the 2016 Consent provides: NSW Independent Liquor and Gaming Authority (ILGA) Criteria for Noise Control are applicable for the proposal and they are: 20.1 The LA(10) noise level emitted from the licensed premises shall not exceed the background noise level in any Octave Band Centre Frequency (31.5Hz - 8kHz inclusive) by more than 5 dB(A) between 7.00am to midnight at the boundary of any affected residence. 20.2 The LA(10) noise level emitted from the licensed premises shall not exceed the background noise level in any Octave Band Centre Frequency (31.5Hz - 8kHz) between midnight and 7.00am at the boundary of any affected residence. 20.3 Notwithstanding compliance with the above, the noise from the licensed premises shall not be audible within any habitable room in any residential premises between the hours of midnight and 7.00am as the development consent permits.
4. Condition 22 of the 2016 Consent provides: Noise Compliance 22.1 Within 6 months of commencement of operation newly altered indoor and outdoor areas of the hotel, the Licensee shall engage an accredited acoustic consultant (who shall be a member of the Australian Acoustic Society or the Association of Australian Acoustical Consultants) to measure noise emitted from the premises in accordance with the conditions (give the consent numbers) stated above and to prepare an acoustic report setting out the results obtained. 22.2 Noise levels shall be measured between the hours of 8.00pm and midnight on a day when patronage is newly created indoor and outdoor areas is at or close to its maximum as evidenced by historical records kept by the Licensee. 22.3 The measurement procedures specified in the NSW DECW Industrial Noise Policy and CLGCA shall apply. The Licensee shall provide a copy of the acoustic report to the Council. 22.4 In the event that noise levels exceed the prescribed limits, the Licensee shall as soon as practical implement any reasonable recommendations made by the acoustic consultant to reduce noise levels to the prescribed limits. Within 1 month of implementation of those recommendations, the acoustic consultant shall undertake a supplementary noise measurement as specified in the previous paragraph to demonstrate compliance with Conditions (give the consent numbers) and a final acoustic report shall be provided to the Council.
5. In accordance with condition 22 of the 2016 Consent, Australian Leisure engaged Dr Renzo Tonin, an acoustic engineer, to carry out acoustic testing in relation to noise emanating from the hotel. Dr Tonin gave evidence in two affidavits dating 12 January 2017 and 15 February 2017, attesting that the premises complied with the ILGA Criteria for Noise Control. Accordingly, Australian Leisure submits that the 2016 Consent is the only consent applicable to the hotel and it is compliant with that consent. Australian Leisure submits that this addresses any of Ms Fagin's enduring concerns regarding noise affectation, and accordingly the Court would not exercise any discretion pursuant to s 124(4) of the EPA Act to limit the hotel use on the land.

Works "relating to" the 2006 Consent

1. Ms Fagin's primary argument is that the work which was undertaken prior to the 2006 Consent can be relied upon to trigger s 95(4). Her argument is that the expression "relating to" depends upon the context and, in the circumstances, it does not matter if the work was undertaken before the Consent was granted. I do not accept this submission.
2. It is clear that the words "relating to" are extremely wide. This was noted in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 ('Project Blue Sky') at [87] where the High Court (McHugh, Gummow, Kirby and Hayne JJ) observed: The words "relate to" are "extremely wide". They require the existence of a connection or association. (citations omitted)
3. However, it is also clear in my view that s 95(4) requires that the work relied on to physically commence a consent must relate to a consent in existence at the time the work was undertaken. In Hunter Development Brokerage Pty Ltd v Cessnock City Council; Tovedale Pty Ltd v Shoalhaven City Council (2005) 63 NSWLR 124; [2005] NSWCA 169 ('Hunter Development ') at [104] Tobias JA stated: I accept that the ambit of the expression "relating to" depends upon the context in which it appears: Australian Competition and Consumer Commission v Maritime Union of Australia (2001) 114 FCR 472 at 487-8 [68] and [69]. It involves, at the very least some real relationship or connection between the work and the subdivision in respect of which the consent has been granted. In my opinion, the required connection or relationship is satisfied if the relevant work is a necessary step in, or part of, the process required for, or involved in, the erection of the building, the subdivision of the land or the carrying out of the work (as the case may be) which is authorised by the consent. [Emphasis added.]
4. In context, s 95 is within "Division 7 - Post-consent provisions" of the EPA Act and specifically deals with "Lapsing of consent". It would be nonsensical that work undertaken before a consent is granted, even if that consent in some way "depended upon" such works, could be relied upon to trigger, in the sense of render operational, a development consent which was not in existence at the time the work was undertaken. Whilst Ms Fagin's submission can be understood in the light of a broad reading of "relating to", this is not the reading called for in the context of s 95.
5. Further, the manner in which Tobias JA in Hunter Development (with whom Santow and Stein JJA agreed) was considering whether certain work (even if "preparatory") could be work relied upon to render a consent operational, clearly related to a situation where a consent was in existence and had "authorised" the works. The works under consideration in Hunter Development were undertaken consequent upon a grant of development consent, which is clearly distinguishable from the present proceedings where the works primarily relied upon by Ms Fagin were undertaken prior to the grant of development consent.
6. Seen in a broader context, the planning regime established under the EPA Act provides for a developer to seek authorisation from a consent authority to develop land, and adopts a particular protocol for the consent authority to consider and if appropriate grant consent, usually with some element of advertisement and possible public participation. Such consent then authorises the development. It would be contrary to the whole regime otherwise enacted in Pt 4 of the EPA Act, when considering whether a consent has lapsed, to take into account work which was obviously undertaken prior to the grant of consent.
7. Accordingly, I find that the works completed prior to the grant of the 2006 Consent cannot be relied upon to prevent the consent from lapsing.

Do the post consent works constitute physical commencement?

1. Ms Fagin's further argument was that the construction of the planter boxes and associated "internal" works could be relied upon to render the consent operational. It is not clear what works Ms Fagin relies upon other than the planter boxes, and in any case, I do not accept this submission for the following reasons: 1. First, it is clear from the photographic and other evidence of Mr Barwick that the specific works authorised by the 2006 Consent (noted above at [9] and [14]) were not undertaken. This evidence was unchallenged. 2. Second, the only works that could be construed as being undertaken in relation to the 2006 Consent appear to be the installation of various planter boxes. Although there is some debate in relation to the proper interpretation of the plans forming part of the 2006 Consent, it is clear that to the extent that some planter boxes have been constructed, they are not wholly reflective of those which were provided for in the approved plans. This is clear from consideration of Ms Fagin's evidence and the approved plans and photographs taken by Ms Fagin - and confirmed in the evidence of Mr Barwick. 3. Third, if my above finding is incorrect and the planter boxes were constructed to reflect the approved plans, I am not satisfied that the installation of planter boxes are "works" that would require consent such that they can be perceived as being constructed pursuant to the 2006 Consent. The parties did not address this issue in detail and given my findings above it is not necessary to do so now. 4. Finally, even if the planter boxes do require consent, and accepting for the moment that they were intended to be built in accordance with the 2006 Consent, condition 3 of the 2006 Consent required a Construction Certificate to be obtained "prior to work commencing". Conditions 6 to 10 (extracted above) also provided a number of steps which were to be satisfied prior to commencement of work. There is no evidence before the Court that a Construction Certificate was ever obtained, or that conditions 6 to 10 were complied with. Accordingly, even if the planter boxes were constructed as part of the 2006 Consent they would be 'unlawful works', and it is well established that such works cannot constitute works for the purpose of physical commencement of a development consent; see K & M Prodanovski v Wollongong City Council [2013] NSWCA 202; (2013) 195 LGERA 23 at [12]-[20]; Green v Kogarah Municipal Council [2001] NSWCA 123; (2001) 115 LGERA 231; Detala Pty Limited v Byron Shire Council [2002] NSWCA 404; (2002) 133 LGERA 1.
2. For these reasons, I do not find that the construction of planter boxes can be relied upon to amount to work that "physically commenced" the 2006 Consent.

Did the use of the beer garden trigger the 2006 Consent?

1. In relation to Ms Fagin's argument that the "use" of the beer garden was itself sufficient to render the 2006 Consent operational, it is clear from historical planning documentation (in particular Development Consent DE80/341 issued by Council on 16 December 1980 and the approved plans), the survey of 22 September 1992 (supporting the application of Building Certificate BC92/1053) and the material provided by the NSW Independent Liquor and Gaming Authority, that the area generally to the rear of the hotel and generally in accordance with what is presently licenced was used as a beer garden for a significant period of time - at least since December 1980 (and likely for some significant time beforehand). This does not mean that there has not been some change in configuration over a period of time however I am prepared, based upon the evidence before the Court, to draw an inference that the beer garden forms part of the lawful use of the hotel and was used as a beer garden well prior to November 2006.
2. In addition, the absence of an Occupation Certificate, as required under condition 5 of the 2006 Consent, further suggests that the use (as a beer garden) was not "actually commenced" pursuant to the 2006 Consent.
3. In these circumstances, I find that the use of the beer garden area in the time since the granting of the 2006 Consent was authorised by the general hotel use of the land and could not have had the effect of preventing the lapse of the 2006 Consent.

Unconscionable conduct

1. Ms Fagin's further argument was that there has been "unconscionable conduct" on behalf of Australian Leisure. I do not consider this compelling, and I find that there has not been any unconscionable conduct on the part of Australian Leisure.
2. Australian Leisure commenced operation of the premises in July 2012 and was not responsible for whatever works were undertaken before the 2006 Consent, or indeed, for any works before July 2012. On the findings I have made, the 2006 Consent had lapsed prior to Australian Leisure's involvement with the hotel and there can therefore be no claim of Australian Leisure acting unconscionably in relation to the 2006 Consent.
3. While I accept that a development consent runs with the land and binds subsequent owners, such a consent goes to the lawfulness of a development, rather than the lawfulness of the conduct relating to the development. The mere fact that the predecessor in occupation undertook unlawful work prior to gaining a development consent, and at the request of Council obtained a building certificate, and thereafter may have undertaken some further works, was not and is not the responsibility of Australian Leisure.

Discretion

1. While I have effectively disposed of the proceedings above, I note that Australian Leisure submitted that, should I not accept its submissions regarding the lapsing of the 2006 Consent, the Court would not in any case exercise any discretion pursuant to s 124 of the EPA Act to limit the use of the hotel. In light of the above findings it is not necessary for me to make a determination regarding discretion, however, I note that in the circumstances, I would have been inclined to exercise my discretion in Australian Leisure's favour.
2. In relation to the first order sought by Ms Fagin, I am satisfied that the 2016 Consent imposes sufficient constraints on noise emitted by the hotel such that I would not exercise my discretion to require Australian Leisure to comply with the noise constraints in condition 17 of the 2006 Consent.
3. In relation to the second order sought by Ms Fagin, I note that the video screen was removed shortly after the commencement of these proceedings, therefore rendering that part of the order otiose. In relation to the audio speakers, I note Australian Leisure's submission that such speakers are an "exempt development" pursuant to SEPP, but do not consider it necessary to deal with this point as I am satisfied that the use of the speakers is sufficiently regulated by the 2016 Consent. In circumstances where Ms Fagin has not raised any argument in support of order 2, other than claiming that the use of the video screen and speakers are in her view, in contravention of the 2006 Consent, I would have been disinclined to make any order that the video screen and speakers be removed. In any case, the removal of the video screen since the commencement of the proceedings and the fact that the noise component has been dealt with in effect means that, to an extent, Ms Fagin's concerns have now been addressed.

Orders

1. The Court orders that: 1. The proceedings are dismissed. 2. Costs are 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. Decision last updated: 01 June 2017