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[2025] NSWSC 1576
General information, not legal advice.
Supreme Court of NSW
2025-12-19
Emmett J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Tacking Point Holdings Pty Ltd v JTT Enterprises Pty Ltd [2025] NSWSC 1576
Hearing dates: 8 December 2025
Date of orders: 19 December 2025
Decision date: 19 December 2025
Jurisdiction: Equity - Real Property List
Before: Emmett J
Decision: (1) Summons dismissed;
(2) The plaintiff is to pay the defendants’ costs;
(3) Grant liberty to the parties to file and serve any submissions seeking an alternative costs order, limited to 3 pages in length, provided those submissions are filed and served by no later than 7 January 2026;
(4) Direct that, if submissions are filed in accordance with order 3, submissions on costs by any other party be filed and served by no later than 21 January 2026, such submissions to be limited to 3 pages in length.
Catchwords: LAND LAW – restrictive covenants – non-application of restrictive covenants – where the plaintiff operates a hotel and bottle shop – where neighbouring land is burdened by covenant restricting a business selling alcohol – where defendants lodged a development application to operate a “Liquorland” – where development application approved – whether covenant does not apply by reason of cl 1.9A of Port Macquarie-Hastings Local Environmental Plan 2011 (NSW)
ENVIRONMENT AND PLANNING – jurisdiction of Supreme Court – whether Land and Environment Court has exclusive jurisdiction under ss 20(1)(e), 20(2) and 71 of the Land and Environment Court Act 1979 (NSW)
ENVIRONMENT AND PLANNING – interpretation of development consent – incorporation of documents referred to in development consent – where development consent describes documents as “approved” and requires development to be carried out in accordance with approved plans and documents – consideration of plans and/or statement of environmental effects to understand the nature of the development that is the subject of development consent
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW)
Land and Environment Court Act 1979 (NSW)
Liquor Act 2007 (NSW)
Port Macquarie-Hastings Local Environmental Plan 2011 (NSW)
Real Property Act 1900 (NSW)
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW)
Cases Cited: Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 365 ALR 86; [2018] NSWCA 245
Allandale Blue Metal Pty Ltd v Roads and Maritime Services (2013) 195 LGERA 182;
[2013] NSWCA 103
Carey-Evans v Wu (2022) 256 LGERA 1; [2022] NSWLEC 144
Commissioner of Police (NSW) v Cottle (2022) 276 CLR 62; [2022] HCA 7
Coshott v Ludwig (1997) 8 BPR 15,519; (1997) NSW ConvR 55-810
JEA Holdings (Aust) Pty Ltd (t/as Miller Shopping Centre) v Registrar-General (NSW) (2024) 261 LGERA 372; [2024] NSWCA 255
Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA 147
LDF Enterprise Pty Ltd v State of NSW (2017) 95 NSWLR 70; [2017] NSWCA 89
Minister for Local Government v Blue Mountains City Council (2018) 97 NSWLR 1132; [2018] NSWCA 133;
State of NSW v Ashton [2025] NSWCA 199
The Owners – Strata Plan No 4983 v Canny (2018) 233 LGERA 432; [2018] NSWCA 275
Category: Principal judgment
Parties: Tacking Point Holdings Pty Ltd (Plaintiff)
JTT Enterprises Pty Ltd (First Defendant)
Coles Supermarkets Australia Pty Ltd (Second Defendant)
Liquorland (Australia) Pty Ltd (Third Defendant)
Representation: Counsel:
G Ng SC with H Grace (Plaintiff)
J C Conde (Defendants)
Solicitors:
Pigott Stinson (Plaintiff)
HWL Ebsworth Lawyers (Defendants)
File Number(s): 2025/00380974
a. No part of the land burdened shall be used for the conduct therefrom of any business involved, in whole or in part, in the sale of alcohol for consumption either on or off the property but this restriction shall not prohibit the use of any part of the property burdened as an on-licence (restaurant).
b. The owner from time to time of the land benefited by the covenant (and being the land contained in Folio Identifier 1/869214) shall be the person, or entities, empowered to release, vary or modify the restriction imposed herein.
2 An order to the effect that that the first defendant, JTT Enterprises Pty Ltd, by its employees and agents, be restrained from using the Burdened Land (or any part thereof), or permitting the Burdened Land (or any part thereof) to be used, for the conduct therefrom of any business involved, in whole or in part, in the sale of alcohol for consumption either on or off the Burdened Land, other than pursuant to a on-premises licence relating to a restaurant.
3 An order to the effect that the second defendant, Coles Supermarkets Australia Pty Ltd, by its employees and agents, be restrained from using the Burdened Land (or any part thereof), or permitting the Burdened Land (or any part thereof) to be used, for the conduct therefrom of any business involved, in whole or in part, in the sale of alcohol for consumption either on or off the Burdened Land, other than pursuant to an on-premises licence relating to a restaurant.
4 An order that the third defendant, Liquorland (Australia) Pty Ltd, by its employees and agents, be restrained from using the Burdened Land (or any part thereof), or permitting the Burdened Land (or any part thereof) to be used, for the conduct therefrom of any business involved, in whole or in part, in the sale of alcohol for consumption either on or off the Burdened Land, other than pursuant to an on premises licence relating to a restaurant.
1.9A Suspension of covenants, agreements and instruments
(1) For the purpose of enabling development on land in any zone to be carried out in accordance with this Plan or with a consent granted under the Act, any agreement, covenant or other similar instrument that restricts the carrying out of that development does not apply to the extent necessary to serve that purpose.
The first defendant, JTT Enterprises Pty Ltd, is the registered proprietor of the Lighthouse Plaza land.
The second defendant, Coles Supermarkets Australia Pty Ltd (Coles), is the lessee of shop 1A in the Lighthouse Plaza and was the applicant for development consent in respect of Shops 2, 3 and 4, where it is proposed that a Liquorland bottle shop will be operated.
The third defendant, Liquorland (Australia) Pty Ltd (Liquorland), is the lessee of Shops 2, 3 and 4 and is the holder of a packaged liquor licence under the Liquor Act 2007 (NSW) permitting the sale of packaged liquor from the single premises created from Shops 2, 3 and 4.
On 27 March 2025, Coles lodged a development application with Port Macquarie Hastings Council (Council) for a development described as “Proposed Conversion of part of the ‘Lighthouse Shopping Plaza’ to a ‘Liquorland’ Premises and Associated Proposed Internal Works Including Proposed Signage” (the Development Application). It was common ground that “development” in this context should be understood as defined in s 1.5 of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act), such that it includes, among other things, “the use of land” (s 1.5(1)(a)), “the carrying out of a work” (s 1.5(1)(d)) and “the demolition of a building or work” (s 1.5(e)).
In the Development Application, two development types are identified, being “Business premises” and “Minor building alterations (internal)”.
The Development Application, under the heading “Application documents”, lists a number of documents which were stated to support the application. They included site plans (the Plans) and a Lighthouse Plaza Statement of Environmental Effects (SEE).
The Plans provide for shelving, displayed storage racks, a cool room, an ice freezer, and a “SELLING AREA” with a “SALES COUNTER” next to the door. This makes it clear that the premises will be a retail premises. The Plans also provide for windowed refrigerator space and shelving with large signs saying, respectively, “BEER DISTRICT”, “SPIRIT TRAIL” and “WINE REGION”. The client on the Plans is identified as “coles liquor” and “Liquorland”. I return to the significance of these aspects of the Plans below.
In the SEE, the proposed development is described as follows:
As previously noted, the current DA seeks approval for “Proposed Conversion of part of the “Lighthouse Shopping Plaza” to a “Liquorland” Premises and associated Proposed Internal Works*”* and Proposed “Signage” on the subject site.
The main elements of the current DA are as follows:
• Proposed change of use of Shops 2, 3 & 4 to a Liquorland premises within the subject site.
• Proposed internal works involving reconfiguration of the internal layout of Shops 2, 3 & 4 within the subject site and also proposed Signage.
To understand the full extent of the proposed works, reference must be made to the Architectural Plans prepared by Brad Read Design Group Pty Ltd.
I also wish to note the Positive Outcomes arising from the current DA, which are referred to in Section 6.0 of this SEE.
Consistent with these two bullet points, the SEE later states that “the current DA [which I take to mean the Development Application] is for occupation and internal works … and proposed Signage”. (Emphasis added.) I read the reference to “occupation” as a reference to the use of the proposed business premises, as described in the first bullet point of the “main elements” of the Development Application. As senior counsel for the plaintiff accepted during oral argument, these two bullet points also reflect the description of the proposed development in the Development Application itself. The first part of the description, proposed conversion of part of the Lighthouse Plaza to a Liquorland premises, is a reference to the proposed use of the land, and the second part of the description, “and associated proposed internal works including proposed signage” (emphasis added) is a description of the physical works to be carried out in reconfiguring the premises and adding signage.
The SEE has a section setting out how it is said the development will satisfy the aims of the LEP as set out in cl 1.2 of the LEP. Clause 1.2(2) has 14 subparagraphs setting out the particular aims of the LEP, and the SEE deals with each subparagraph in turn. I set out below four of the subparagraphs and what the SEE says about each of them:
[(a) to protect, conserve and sustainably manage the ecological biodiversity and natural environment of the Port Macquarie-Hastings area]
(a) The proposed development only relates to the reconfiguration of the internal layout of Shops 2,3 & 4 and proposed Signage within the building on the subject site and will therefore not impact on the ecological biodiversity and natural environment of the Port Macquarie- Hastings area.
[(b) to facilitate a strong and diverse local economy within the Port Macquarie-Hasting area]
(b) The proposed Liquorland premises will contribute to a strong and diverse local economy within the Port Macquarie-Hastings area.
[(c) to manage and coordinate the orderly, equitable and economic use and development of land within the Port Macquarie-Hastings Area]
(c) The proposed development will ensure the orderly, equitable and economic use of the subject site.
…
[(h) to provide a land use framework for development within the Port Macquarie-Hastings area that is safe, inclusive and equitable, and caters for the housing, employment, entertainment, cultural, welfare and recreational needs of residents and visitors]
(h) The proposed development will contribute to the need of residents and visitors.
I make the following observations about these subparagraphs:
Although subparagraph (a) says that the proposed development “only relates to the reconfiguration of the internal layout … and proposed Signage within the building”, it is plain from the first bullet point in the description of the proposed development, quoted above, and from subparagraphs (b), (c) and (h) that the proposed development includes the proposed use of the land. In those circumstances, I would read “only” as qualifying “internal” and “within the building”— that is, the point is being made that the proposed development does not involve external works. That interpretation is reinforced by the balance of subparagraph (a).
Subparagraphs (b), (c) and (h) clearly address impacts of the proposed use of the land as a bottle shop.
At other points in the SEE, similar language is used to the language in subparagraph (a), that is, that the development “only” relates to reconfiguration of the internal layout and proposed signage. However, given the multiple references to the proposed use or occupation of the land as part of the proposed development, I would again read “only” as qualifying “internal”, the point being that the proposed development does not involve works external to the building. It would not be surprising for this to be stressed, given that works external to the building may obviously give rise to additional planning considerations.
In a section dealing with potential social impacts from the development, the SEE includes the following:
In relation to the above objectives, I wish to note the following:-
- The proposed Liquorland premises will be takeaway only and will not cater for the consumption of alcohol on-site. Consequently, there will be no potential social impact on the immediately adjoining retail and commercial uses nor the adjoining locality because people will not consume alcohol on-site which is purchased from the Liquorland premises.
2. The proposed development is for internal works only and proposed Signage and will not alter the external components of the existing Lighthouse Shopping Plaza building.
For the reasons outlined in this SEE, I consider that the proposed works do not create unreasonable impacts on adjoining properties and the public domain.
I also consider that the proposed development demonstrates a number of Positive Outcomes including, but not limited to, the following: -
• The proposed Liquorland premises is a common use within a Town Centre and will meet a retail demand.
• Furthermore, it must be stressed that there will be no consumption of alcohol within the Liquorland premises.
• The proposed Signage is within the Lighthouse Shopping Plaza building.
• There will be no change in the Height, Bulk and Scale of the existing Lighthouse Shopping Plaza building arising from the proposed Liquorland use.
• There will be no change to the external presentation of the building from the streetscape or the public domain.
• Given the fact that the proposed Liquorland premises will replace the current retail uses, there will be no increase in Parking or Traffic demand.
These extracts reinforce what I consider to emerge clearly from the SEE, that is, that the proposed development includes the use of the premises as a Liquorland business from which alcohol will be sold.
The Court also received evidence indicating that the Plans and the SEE were publicly accessible on-line through the Council’s “Application Tracker”.
On 6 June 2025, the Council determined the Development Application by granting development consent subject to conditions (the Development Consent). The description of the development is “Retail Premises Fit-Out and Associated Signage”. The Development Consent includes under the heading “GENERAL CONDITIONS” the following as condition A001:
A001 - Approved plans and supporting documentation
Development must be carried out in accordance with the following approved plans and documents, except where the conditions of this consent expressly require otherwise.
Approved plans
| Plan number | Revision number | Plan title | Drawn by | Date of plan | | LL-001 | - | cover sheet | BRD Group | February 2025 | | LL-101 LL-102 | - | Layouts | BRD Group | February 2025 | | LL-106 | - | Finishes | BRD Group | February 2025 | | LL-201-3 | - | Elevations | BRD Group | February 2025 | | LL-401, LL-402, LL-404 | - | Various Signage Details | BRD Group | February 2025 |
Approved documents
| Document title | Version number | Prepared by | Date of document | | Statement of Environmental Effects | Ref: 25014TM | Tony Moody Planning & Development | 17 March 2025 |
In the event of any inconsistency with the approved plans and a condition of this consent, the condition prevails.
Condition Reason: To ensure all parties are aware of the approved plans and supporting documentation that applies to the development.
The plaintiff accepted that, where the condition refers to “[a]pproved documents” in the heading to the second table, the Court should understand that to indicate that the SEE had been approved by the Council. The plaintiff also accepted that the reference to “all parties” in the stated reason for the condition must include a reference to, for example, a neighbour or other person interested in the Development Consent. This becomes important when considering whether the SEE is incorporated into the Development Consent or is otherwise a document to which regard may permissibly be had in order to understand the development for which consent is given.
The Development Consent also includes the following condition under the heading “OCCUPATION AND ONGOING USE”:
| Condition | | 1. | Hours of operation Hours of operation of the development are restricted to the following hours: • 9am Mon am to 8pm – Mondays to Saturdays • 10am to 8pm – Sundays and Public Holidays Condition Reason: To protect the amenity of the area. |
The plaintiff accepted that a reader of the Development Consent would understand that the Council, in fixing those hours of operation, did so conscious of how the premises would be used, mindful that Council might consider that some kinds of shops ought to be open earlier in the day, or ought only to be open for certain hours in a day.
On 7 July 2025, Liquorland applied to the Independent Liquor and Gaming Authority (the ILGA) for a packaged liquor licence under the Liquor Act for the proposed Liquorland premises. On 15 October 2025, the ILGA granted the packaged liquor licence subject to conditions. Relevantly, although the Development Consent approves operation of the development between 10am and 8pm on Public Holidays, the liquor licence does not permit the sale of alcohol on Good Friday or Christmas Day.
After correspondence seeking undertakings not to sell alcohol from the premises (and such undertakings not being provided, reliance being placed on cl 1.9A of the LEP) the plaintiff commenced these proceedings by summons dated 3 October 2025.
20 Class 4—environmental planning and protection, development contract and strata renewal plan civil enforcement
(1) The Court has jurisdiction (referred to in this Act as “Class 4” of its jurisdiction) to hear and dispose of the following—
…
(e) proceedings referred to in subsection (2).
(2) The Court has the same civil jurisdiction as the Supreme Court would, but for section 71, have to hear and dispose of the following proceedings—
(a) to enforce any right, obligation or duty conferred or imposed by a planning or environmental law, a development contract or a strata renewal plan,
(b) to review, or command, the exercise of a function conferred or imposed by a planning or environmental law, a development contract or a strata renewal plan,
(c) to make declarations of right in relation to any such right, obligation or duty or the exercise of any such function,
(d) whether or not as provided by section 68 of the Supreme Court Act 1970—to award damages for a breach of a development contract.
71 Proceedings in Supreme Court
(1) Subject to section 58, proceedings of the kind referred to in section 20(1)(e) may not be commenced or entertained in the Supreme Court.
(2) The jurisdiction conferred on the Court in respect of proceedings referred to in section 20(1)(e) is not limited by any provision of the Civil Procedure Act 2005 or the uniform rules under that Act.
It is common ground that the LEP is a “planning or environmental law” as defined in s 20(3).
This question arose because, in addition to the prayers for relief extracted above at [2], the summons included, as prayer 1, the following prayer:
A declaration to the effect that the land comprising Lot 1 in Deposited Plan 1163758 (Burdened Land) continues to be burdened by the restrictive covenant bearing Dealing No Al689142 (Restrictive Covenant), notwithstanding the grant of Development Consent DA 2025/174 by Port Macquarie-Hastings Council on 6 June 2025 (Consent).
While the declaration sought does not in terms address a right or obligation under the LEP, the central matter in dispute between the parties is whether cl 1.9A of the LEP relieves the first defendant of its obligation under the restrictive covenant (and thereby confers a corresponding right on the first defendant). On one view, this means prayer 1 might be characterised as a declaration “in relation to” a right conferred by the LEP.
While I see scope for real doubt about whether “in relation to” should be read so broadly, it was not necessary for me to decide this matter. In light of my concern as to the potential application of s 20(2)(c), the plaintiff did not press prayer 1, on the basis that the plaintiff would be given a short opportunity to consider ss 20 and 71 of the LEC Act further, and if the plaintiff sought to reagitate prayer 1 within that short window the plaintiff would be given an opportunity to do so by written submission, subject to the defendant having an opportunity to respond. The defendants, through their counsel, confirmed their consent to this course.
Following the hearing, the plaintiff was given an opportunity to file any written submissions seeking to reagitate prayer 1 within a specified time. No such submissions were filed and I have proceeded on the basis that the plaintiff maintains its position of not pressing prayer 1.
I am satisfied that ss 20 and 71 of the LEC Act do not prevent the Court from dealing with prayers 2 to 4. Those prayers fall outside the ordinary language of s 20(2). I am bolstered in this view by the decision of the Court of Appeal in The Owners – Strata Plan No 4983 v Canny (2018) 233 LGERA 432; [2018] NSWCA 275. In that decision at [37]-[49] and [87], Payne JA (McColl JA and Emmett AJA agreeing) expressed significant doubt about whether the Supreme Court had jurisdiction to grant declaratory relief about the meaning of the development consent before the Court in that case. However, as is clear from the reasons at [50], that did not prevent the Court from determining the meaning of the development consent in the context of considering prayers for relief that were within the Court’s jurisdiction.
Senior counsel for the plaintiff drew my attention to the Court of Appeal decisions in both Coshott v Ludwig (1997) 8 BPR 15,519; (1997) NSW ConvR 55-810 and JEA Holdings (Aust) Pty Ltd (t/as Miller Shopping Centre) v Registrar-General (NSW) (2024) 261 LGERA 372; [2024] NSWCA 255, which were appeals from this Court in which this Court had ruled on whether an environmental planning instrument in similar terms to cl 1.9A of the LEP had the effect of excluding or disapplying a restrictive covenant or easement. There is no indication in those decisions of a doubt being raised as to the Supreme Court’s jurisdiction, although in fairness the issue may not have been raised at all, so I do not place significant weight on these decisions.
3.16 Suspension of laws etc by environmental planning instruments (cf previous s 28)
(1) In this section, regulatory instrument means any Act (other than this Act), rule, regulation, by-law, ordinance, proclamation, agreement, covenant or instrument by or under whatever authority made.
(2) For the purpose of enabling development to be carried out in accordance with an environmental planning instrument or in accordance with a consent granted under this Act, an environmental planning instrument may provide that, to the extent necessary to serve that purpose, a regulatory instrument specified in that environmental planning instrument shall not apply to any such development or shall apply subject to the modifications specified in that environmental planning instrument.
(3) A provision referred to in subsection (2) shall have effect according to its tenor, but only if the Governor has, before the making of the environmental planning instrument, approved of the provision.
(4) Where a Minister is responsible for the administration of a regulatory instrument referred to in subsection (2), the approval of the Governor for the purposes of subsection (3) shall not be recommended except with the prior concurrence in writing of that Minister.
(5) A declaration in the environmental planning instrument as to the approval of the Governor as referred to in subsection (3) or the concurrence of a Minister as referred to in subsection (4) shall be prima facie evidence of the approval or concurrence.
(6) The provisions of this section have effect despite anything contained in section 42 of the Real Property Act 1900.
4.2 Development that needs consent (cf previous s 76A)
(1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless—
(a) such a consent has been obtained and is in force, and
(b) the development is carried out in accordance with the consent and the instrument.
Maximum penalty—Tier 1 monetary penalty.
(2) For the purposes of subsection (1), development consent may be obtained—
(a) by the making of a determination by a consent authority to grant development consent, or
(b) in the case of complying development, by the issue of a complying development certificate.
…
(5) Complying development An environmental planning instrument may provide that development, or a class of development, that can be addressed by specified predetermined development standards is complying development.…
…
4.16 Determination (cf previous s 80)
(1) General A consent authority is to determine a development application by—
(a) granting consent to the application, either unconditionally or subject to conditions, or
(b) refusing consent to the application.
(2) Despite subsection (1), the consent authority must refuse an application for development, being the subdivision of land, that would, if carried out, result in a contravention of this Act, an environmental planning instrument or the regulations, whether arising in relation to that or any other development.
(3) “Deferred commencement” consent A development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority, in accordance with the regulations, as to any matter specified in the condition. Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition.
(4) Total or partial consent A development consent may be granted—
(a) for the development for which the consent is sought, or
(b) for that development, except for a specified part or aspect of that development, or
(c) for a specified part or aspect of that development.
(5) The consent authority is not required to refuse consent to any specified part or aspect of development for which development consent is not initially granted under subsection (4), but development consent may subsequently be granted for that part or aspect of the development.
Note.
See also Division 4.4 for special procedures concerning concept development applications.
(6) Restrictions on determination of development applications involving Independent Planning Commission If a consent authority (other than the Minister) has received notice that the Minister has requested that a review (with or without a public hearing) be conducted by the Independent Planning Commission in relation to all or any part of the development the subject of a development application, the consent authority must not determine the development application until—
(a) the review has been conducted, and
(b) the consent authority has considered the findings and recommendations of the Independent Planning Commission and any comments made by the Minister that accompanied those findings and recommendations when they were forwarded to the consent authority.
(7) If the Minister has requested that a review (with or without a public hearing) be conducted by the Independent Planning Commission in relation to all or any part of the development the subject of a development application for which the Minister is the consent authority, the Minister must not determine the development application until—
(a) the review has been conducted, and
(b) the Minister has considered the findings and recommendations of the Independent Planning Commission.
(8) (Repealed)
(9) Restrictions on determination of development applications for designated development A consent authority must not determine a development application for designated development—
(a) until after the submission period (within the meaning of Schedule 1) has expired, or
(b) if a submission is made with respect to the application within the submission period, until after 21 days following the date on which a copy of the submission is forwarded to the Planning Secretary have expired.
(10) Subsection (9)(b) does not apply—
(a) to a consent authority being the Minister or the Planning Secretary, or
(b) if the Planning Secretary has waived the requirement that submissions be forwarded to the Planning Secretary for a specified development application or for a specified class of development applications.
(10A) (Repealed)
(11) Other restrictions on determination of development applications The regulations may specify other matters of a procedural nature that are to be complied with before a development application may be determined.
(12) Effect of issuing construction certificate If a consent authority or a registered certifier issues a construction certificate, the construction certificate and any approved plans and specifications issued with respect to that construction certificate, together with any variations to the construction certificate or plans and specifications that are effected in accordance with this Act or the regulations, are taken to form part of the relevant development consent (other than for the purposes of section 4.55).
As I note above at [7], “development” is defined in s 1.5(1)(a) to include the use of land.
The LEP includes a Land Use Table at the end of Part 2, which sets out development that may be carried out without development consent, development that may be carried out only with development consent, and development that is prohibited: see cl 2.3. In the section of the Land Use Table for Zone E1, Local Centre (being the applicable zone for the Lighthouse Plaza land), item 3 sets out development that is permitted with consent. It includes “Commercial premises” and “Any other development not specified in item 2 or 4”. (Item 2 sets out development permitted without consent and item 4 sets out prohibited development).
“Commercial premises” is defined in the LEP Dictionary to include “retail premises”. “Retail premises” is defined to include a place used for the purpose of selling items by retail, and includes (c) “food and drink premises” and (l) “shops”. “Food and drink premises” are defined as follows:
food and drink premises means premises that are used for the preparation and retail sale of food or drink (or both) for immediate consumption on or off the premises, and includes any of the following—
(a) a restaurant or cafe,
(b) take away food and drink premises,
(c) a pub,
(d) a small bar.
The expression “take away food and drink premises” is also defined by reference to the preparation and retail sale of food or drink “for immediate consumption away from the premises”. The plaintiff contended that a packaged liquor store does not fall within this definition because it does not sell alcohol for “immediate” consumption. I have some doubt about this contention – packaged liquor is sold on the basis that it is ready for immediate consumption away from the premises. However, in light of the conclusion I reach below it is not necessary to rule on this on a final basis.
I proceed on the basis that the proposed Liquorland store falls within item 3 of the LEP.
Two other statutes which arise for consideration, having regard to the plaintiff’s arguments, are the Liquor Act and the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (the Exempt and Complying Development Codes SEPP).
The Liquor Act relevantly provides:
7 Licence required to sell liquor
(1) A person must not sell liquor unless the person is authorised to do so by a licence.
Maximum penalty—100 penalty units or imprisonment for 12 months, or both.
(2) A person does not commit an offence under subsection (1) if the person is an employee or agent of a licensee and the sale is made in accordance with this Act and the authorisation conferred by the licence.
(3) A person who is the occupier, manager or person apparently in control of any premises on or from which liquor is sold in contravention of subsection (1) is taken to have sold the liquor unless it is proved that the person—
(a) had no knowledge of the sale, and
(b) had used all due diligence to prevent the sale of liquor on or from the premises.
…
29 Authorisation conferred by packaged liquor licence
(1) Retail sales A packaged liquor licence authorises the licensee to sell liquor by retail in sealed containers on the licensed premises, for consumption away from the licensed premises only—
(a) during the standard trading period or such other period as may be authorised by an extended trading authorisation, or
(b) in the case of any Sunday that falls on 24 December—from 8 am (or such earlier time as may be authorised by an extended trading authorisation) to midnight on that day.
(2) No retail trading on restricted trading days Despite subsection (1), a packaged liquor licence does not authorise the licensee to sell liquor by retail on a restricted trading day.
(3) Selling liquor by wholesale or to employees A packaged liquor licence also authorises the licensee—
(a) to sell liquor by wholesale, at any time on the licensed premises, to persons authorised to sell liquor (whether by wholesale or by retail), and
(b) to sell or supply liquor, at any time on the licensed premises, to the employees of the licensee or of a related corporation of the licensee.
(3A) An extended trading authorisation must not authorise the sale of liquor for consumption away from the licensed premises—
(a) on a Sunday that does not fall on 24 or 31 December—after 11 pm, and
(b) on any other day—after midnight.
(4) Tastings A packaged liquor licence also authorises the licensee to sell or supply liquor, on the licensed premises and during the trading hours permitted by subsection (1), otherwise than in sealed containers to customers and intending customers for consumption while on the licensed premises, but only for the purposes of tasting.
…
45 Decision of Authority in relation to licence applications
(1) The Authority may, after considering an application for a licence and any submissions received by the Authority in relation to the application, grant the licence or refuse to grant the licence. The Authority may determine the application whether or not the Secretary has provided a report in relation to the application.
(2) The Authority may, in such circumstances as the Authority considers appropriate, treat an application for a licence as having been withdrawn.
(3) The Authority must not grant a licence unless the Authority is satisfied that—
(a) the applicant is a fit and proper person to carry on the business or activity to which the proposed licence relates, and
(b) practices will be in place at the licensed premises as soon as the licence is granted that ensure, as far as reasonably practicable, that liquor is sold, supplied or served responsibly on the premises and that all reasonable steps are taken to prevent intoxication on the premises, and that those practices will remain in place, and
(c) if development consent is required under the Environmental Planning and Assessment Act 1979 (or approval under Part 3A or Part 5.1 of that Act is required) to use the premises for the purposes of the business or activity to which the proposed licence relates—that development consent or approval is in force.
Note.
Section 72I also requires the Authority to be satisfied of certain other matters before granting a hotel, club or packaged liquor licence.
(4) The regulations may also provide mandatory or discretionary grounds for refusing the granting of a licence.
(5) Without limiting subsection (3)(a), a person is not a fit and proper person to carry on the business or activity to which a proposed licence relates if the Authority has reasonable grounds to believe from information provided by the Commissioner of Police in relation to the person—
(a) that the person—
(i) is a member of, or
(ii) is a close associate of, or
(iii) regularly associates with one or more members of,
a declared organisation within the meaning of the Crimes (Criminal Organisations Control) Act 2012, and
(b) that the nature and circumstances of the person’s relationship with the organisation or its members are such that it could reasonably be inferred that improper conduct that would further the criminal activities of the declared organisation is likely to occur if the person is granted a licence.
(5A) Without limiting subsection (3)(a), in determining whether an applicant is a fit and proper person to carry on the business or activity to which the proposed licence relates, the Authority is to consider whether the applicant—
(a) is of good repute, having regard to character, honesty and integrity, and
(b) is competent to carry on that business or activity.
(6) The Authority is not, under this or any other Act or law, required to give any reasons for not granting a licence because of subsection (5) to the extent that the giving of those reasons would disclose any criminal intelligence.
(7) In deciding whether or not to grant a licence, the Authority must consider whether, if the licence were granted, it would provide employment in, or other opportunities for, any of the following—
(a) the live music industry,
(b) the arts sector,
(c) the tourism sector,
(d) the community or cultural sector.
1.3 Aims of Policy
This Policy aims to provide streamlined assessment processes for development that complies with specified development standards by—
(a) providing exempt and complying development codes that have State-wide application, and
(b) identifying, in the exempt development codes, types of development that are of minimal environmental impact that may be carried out without the need for development consent, and
(c) identifying, in the complying development codes, types of complying development that may be carried out in accordance with a complying development certificate as defined in the Act, and
(d) enabling the progressive extension of the types of development in this Policy, and
(e) providing transitional arrangements for the introduction of the State-wide codes, including the amendment of other environmental planning instruments.
1.4 Land to which Policy applies
(1) This Policy applies to the State, except as provided by this clause.
(2) This Policy does not apply to land—
(a) to which State Environmental Planning Policy (Precincts—Regional) 2021, Chapter 4 applies, and
(b) to which State Environmental Planning Policy (Precincts—Western Parkland City) 2021, Chapter 7 applies, and
(c) that is less than 18 kilometres from the Siding Spring Observatory, except as provided by clause 1.16A, and
(d) identified as “Asbestos Encapsulation Area” on the Asbestos Encapsulation Area Map.
1.5 Interpretation—general
(1) In this Policy—
exempt development code means any of the following codes—
(a) the General Exempt Development Code,
(b) the Advertising and Signage Exempt Development Code,
(c) the Temporary Uses and Structures Exempt Development Code.
…
1.15 What development is exempt development?
(1) Development is exempt development for the purposes of this Policy if the development—
(a) is specified in an exempt development code, and
(b) meets the standards specified for the development, and
(c) complies with the requirements of this Division for exempt development.
(2) For the purposes of subclause (1), development that is specified includes any specified limitations as to the land on which that development may be carried out.
…
1.20 Suspension of covenants, agreements and instruments
(1) For the purpose of enabling development on land in any zone to be carried out in accordance with this Policy, or with a consent granted under the Act, any agreement, covenant or other similar instrument that restricts the carrying out of that development does not apply to the extent necessary to serve that purpose.
(2) This clause does not apply—
(a) to a covenant imposed by a council, or that a council requires to be imposed, requiring compliance with a development standard that is—
(i) consistent with the development standards specified for the development concerned under this Policy, or
(ii) not dealt with by the development standards specified for the development concerned under this Policy, or
(b) to a covenant that is specifically required by another environmental planning instrument, or
(c) to a covenant imposed by an owner or former owner of the land concerned, other than a covenant that has been required by a council to be imposed, or
(d) to any relevant instrument within the meaning of section 13.4 of the Crown Land Management Act 2016, or
(e) to any conservation agreement within the meaning of the National Parks and Wildlife Act 1974, or
(f) to any Trust agreement within the meaning of the Nature Conservation Trust Act 2001, or
(g) to any property vegetation plan approved under the Native Vegetation Act 2003, or
(h) to any biobanking agreement within the meaning of Part 7A of the Threatened Species Conservation Act 1995, or
(i) to any planning agreement within the meaning of Division 7.1 of the Act.
(3) This clause does not affect the rights or interests of any public authority under any registered instrument.
(4) Under section 28 of the Act, the Governor, before the making of this clause, approved of subclauses (1)–(3).
…
Part 2 Exempt Development Codes
…
Division 1 General Exempt Development Code
…
Sub****division 10A Change of use of premises
2.20A Specified development
A change of use from a current use specified in a category in Column 1 of the Table to this clause to a use specified in the corresponding category in Column 2 of the Table to this clause is development specified for this code.
| Table | | Column 1 Current Use | Column 2 New Use | | Category 1 | Category 1 | | … shop … | … shop kiosk … |
2.20B Development standards
(1) The standards specified for that development are that—
(a) the current use must be a lawful use, and
(b) the current use must not be an existing use within the meaning of section 4.65 of the Act, and
(c) the new use must be permissible with consent under an environmental planning instrument applying to the land on which the development is carried out, and
(d) the new use must not result in a change of building classification under the Building Code of Australia, unless the change of use is from a class 5 building to a class 6 building, or from a class 6 building to a class 5 building, and the building meets all the relevant provisions of that code for the new use, and
(e) the new use must not be carried out at premises that are a manufactured home, moveable dwelling or associated structure, temporary structure, tent, swimming pool, ship or vessel, and
(f) the new use must not be any of the following—
(i) food and drink premises, and
(g) the new use must not involve building alterations, other than alterations that are exempt development under this Policy, and
(h) the new use must not result in an increase in the gross floor area of any building within which it is carried out, and
(k) the new use must not be carried out under an awning unless the awning complies with the requirements set out in the Building Code of Australia, Volume 1, B1P1 and B1P2.
Note.
Certain types of uses are subject to a maximum floor area to be permissible development in a particular zone under the relevant environmental planning instrument. In those cases, the maximum floor area requirement for that use must be complied with for a change of use to be exempt development.
[Subparagraphs (2)-(4) omitted.]
In relation to cl 2.20B(f)(i), the Exempt and Complying Development Codes SEPP does not define “food and drink premises”. However, cl 1.5(2) provides that a word or expression used in the Policy has the same meaning as it has in the Standard Instrument (Local Environmental Plans) Order 2006. That instrument defines “food and drink premises” and “take away food and drink premises” in the same way as in the LEP.
The consequences of being an “exempt development” under the Exempt and Complying Development Codes SEPP are set out in s 1.6 of the EPA Act:
1.6 Exempt development (cf previous s 4)
(1) The carrying out of exempt development does not require—
(a) development consent under Part 4, or
(b) environmental impact assessment under Division 5.1, or
(c) State significant infrastructure approval under Division 5.2, or
(d) a certificate under Part 6 (Building and subdivision certification).
(2) Exempt development is development that is declared to be exempt development by an environmental planning instrument because of its minor impact.
“involves three steps: first, identifying what interest is created by the instrument that is the Dealing; second, ascertaining whether the Dealing creating that interest is ‘any agreement, covenant or other similar instrument’; and third, determining whether the Dealing ‘restricts the carrying out of that development’, being development in accordance with the consent granted by the Council. The first step is necessary in order to undertake the second step, and the second step is necessary in order to undertake the third step.”
The first two steps are readily established in the present case. As to the first, the interest created by the restrictive covenant is the plaintiff’s apparent right to insist that no part of the Lighthouse Plaza be used for the conduct of a business involving the sale of alcohol. As to the second, the restrictive covenant is plainly an “agreement, covenant or other similar instrument”.
Of the third step, his Honour went on to say at [86]:
“I turn to the third step of determining whether the Dealing, as an instrument of this description, ‘restricts the carrying out of that development’ within the meaning of that phrase in cl 1.9A…. The reference to ‘that development’ in the phrase includes development to be carried out in accordance with a consent granted under the EPA Act. In the present case, this means development carried out in accordance with the consent granted by the Council. This consent authorises the erection of a dwelling house above the horizontal plane specified in the Dealing.”
(a) the Development Consent does not provide for the sale of alcohol, so that the use of the premises for the sale of alcohol is not part of the development for which consent has been granted; (b) the sale of alcohol from the premises is in accordance with the packaged licence granted under the Liquor Act and therefore not in accordance with the Development Consent.
The plaintiff further contends that, to engage cl 1.9A, the development must be of a kind that is “enabled” upon the relevant restrictive covenant being disapplied—that is, it must be possible to conclude that if the restrictive covenant is excluded, there is no other legal impediment to that particular use. The plaintiff contends that if there is some other legal impediment, then cl 1.9A has no application because the disapplication of the restrictive covenant would not “enable” the development to be carried out.
I deal with each of the plaintiff’s contentions in turn.
Reference may be made to documents other than the consent itself if those documents, or parts of them, are incorporated into the consent expressly or by necessary implication …
…
A document which is attached to the consent or otherwise referred to in it for the purpose of identifying or describing something dealt with in the consent will … be expressly incorporated in it … However, the mere reference to a document, such as a development application, is usually not sufficient to constitute express incorporation for this purpose. In each case, whether the reference is sufficient will depend upon the reason for the reference as appears from the consent itself.
(References omitted.)
It was common ground that the Plans are incorporated into the Development Consent. So much is clear from the express requirement in condition A001 that the development must be carried out in accordance with the approved plans.
Both parties also accepted that the Court may have regard to the development application itself in determining the scope of the development for which consent had been granted: see, eg, Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA 147 at [57]-[59], [75]-[80] per Basten JA, Gleeson JA and Preston CJ of LEC agreeing. As noted at [7] above, the description of the development in the Development Application refers to both “Proposed Conversion … to a ‘Liquorland’ Premises” and associated internal works and signage. This reinforces what can be gleaned from the Development Consent itself, which is that the proposed development includes both physical works and consequential use of the land as part of a business, specifically, “a ‘Liquorland’ premises”.
The plaintiff contends that the SEE is in a different category and should not be regarded as being incorporated into, or otherwise permissible to consider when interpreting, the Development Consent. Although condition A001 also states that the development must be carried out in accordance with the SEE, the plaintiff argues that since the SEE is a statement of anticipated effects, there are no requirements in that document “in accordance with” which the development should be carried out. The plaintiff places weight on the fact that condition A001 expressly states that if there is an inconsistency between “the plans and a condition of this consent” (emphasis added) the condition prevails, without saying the same thing about inconsistency with the other documents approved in condition A001. There are several difficulties with this argument:
The first sentence in condition A001 contains a similar provision about conditions prevailing over “the approved plans and documents” (emphasis added). In those circumstances, I place little weight on the non-inclusion of the other approved document, the SEE, in the second statement about the conditions prevailing.
Contrary to the plaintiff’s contention, the SEE contains statements about the proposed operation of the premises, which means that there is practical, sensible work to do for a requirement that the development (including the use of the land) must be carried out “in accordance with” the SEE. By way of example, the SEE states that “[t]he proposed Liquorland premises will be takeaway only and will not cater for the consumption of alcohol on-site”. This was repeated later in the document, where the author says, “it must be stressed that there will be no consumption of alcohol within the Liquorland premises”. As the defendants’ counsel submitted, if contrary to this statement the Liquorland premises started catering for consumption of alcohol on-site, that would prima facie be inconsistent with condition A001.
The plaintiff also contends that the Development Consent does not give consent to the operation of a business selling alcohol because that is not a land use known to planning law, or alternatively that is not a land use contemplated, at that level of specificity, by the LEP.
While the LEP does not make separate provision, in precisely those terms, for businesses selling alcohol, the LEP clearly contemplates that developments permitted with consent might include businesses selling alcohol. So much is clear from the inclusion of “pub” and “small bar” in the definition of “food and drink premises”, as one of the subcategories of “retail premises” in the LEP. While “shop” is a separate category of “retail premises”, the legislation plainly proceeds on the basis that, in considering whether to approve the development, the Council will consider the particular kind of shop that is proposed. Indeed, this is necessary to enable the Council to consider what conditions should be imposed on the proposed development (including but not limited to what hours of trading should be approved).
Senior counsel for the plaintiff made the point that if the ILGA refused a liquor licence, consent to such a development would not permit the proposed pub or small bar—or, as in the present case, the bottle shop—to sell alcohol. That much may be accepted, but that simply illustrates that some kinds of business need the approval, consent or permission of multiple regulatory bodies before they are able to operate as they hope or intend to operate.
Coherence is not served by the plaintiff’s contention that a local council’s development consent should only be understood at the level of particularity or generality of the categories or subcategories in the LEP (ie, consent to a “shop” or a “food and drink premises” without regard to the particular kind of shop or other premises that is proposed as part of the development). It is common ground that, so far as the Plans are concerned, Council’s role includes assessment of the Plans in full detail, and that the consent was appropriately given in terms that required the development to be carried out in accordance with those specific plans. Moreover, the LEP itself does not use a consistent level of specificity or generality. Various kinds of development are divided, subdivided and further subdivided in definitions in the Dictionary of the LEP. There is no consistent level of granularity. Defined expressions such as “retail premises” include a general definition and then a number of specific additional categories and subcategories that are stated to be included within the definition. There is every reason to read the categories, subcategories and sub-subcategories in the Dictionary as simply being introduced to identify clearly particular matters that are included within the definition, either for the avoidance of doubt or by way of extending each definition.
I am satisfied that the legislation requires the Council to consider the proposed development by reference to, among other things, the Plans and the SEE. To this extent, I do not accept, as the plaintiff contended, that planning law is indifferent to the type of shop that may be operated pursuant to a development consent, if the development consent is for a particular kind of shop. For the same reason, it is not to the point that a “Liquorland outlet” or a “Liquorland premises” is not specified in those terms as a permissible use in the LEP. It is plain that such an outlet or such a business falls within the definition of “commercial premises” and requires consent. In order to understand what particular development to which the Council has consented, it is necessary to review the Development Consent and any documents incorporated into it, which in this case include the Plans and the SEE. For the reasons set out above, the development for which the Council has granted consent is one for the operation of a Liquorland premises that would sell alcohol including, at least, beer, wine and spirits.
The SEE describes the proposed development as involving a “change of use” – referring for example to the proposed “change of use of Shops 2, 3 and 4 to a Liquorland premises”. The plaintiff contends that this “change of use” should be understood in a narrow sense. The evidence from the internal Council records indicates that the area which was to become the Liquorland premises was previously occupied by three retail outlets, one of which was a take away food and drink outlet. On the plaintiff’s case, the reference to “change of use” in the SEE should be understood as solely referring to the fact that the premises are changing from including a “food and drink premises” to being solely a “shop”, those expressions being separately defined in the LEP. One difficulty with this contention is that it is not possible to tell from the Development Consent or the documents referred to therein that this was the sense in which there was said to be a “change of use”. A more natural interpretation of the SEE is that there was going to be a “change of use” because Shops 2, 3 and 4, which were not previously being used as a Liquorland premises, would commence being used as a Liquorland premises. That is what the Development Applicant and the SEE both say. Nevertheless, I assume in the plaintiff’s favour for present purposes that the references to “change of use” in the SEE might be understood in the narrow sense advanced by the plaintiff.
The plaintiff further contends that if one of the previous three outlets had not been a food and drink premises, development consent would not have been necessary. The basis for this is cll 2.20A and 2.20B of the Exempt and Complying Development Codes SEPP, which provide that consent is not required for change of use from “shop” to “shop”, provided among other things the new use is not a “food and drink premises”. As I indicate above, I am not persuaded that this is the case because I am not persuaded that a liquor store falls outside the definition of “food and drink premises”. A liquor store sells drink that is ready for immediate consumption, albeit that consumption must take place off-premises and must be consistent with any other laws about locations where it is permitted to drink alcohol. It is not apparent why this is different from a take away food outlet, which sells food which is ready for immediate consumption but which might be taken home and stored for some time before consumption.
In any event, even assuming this in the plaintiff’s favour, I do not think it assists the plaintiff. As indicate above, I do not accept that cl 1.9A of the LEP requires that attention be confined to whether the proposed development meets the description of one subcategory or another within the LEP, nor that the inquiry must be confined to the level of generality or specificity that emerges from those categories or subcategories. The fact is, approval was required for the proposed development. The Council having given Development Consent, the question for cl 1.9A is whether the disapplication of the restrictive covenant is, “necessary to serve” the purpose “of enabling development on land … to be carried out in accordance with” that Development Consent.
The plaintiff contended that the sale of alcohol is not “in accordance with” the Development Consent because it is in accordance with the packaged liquor licence granted under the Liquor Act.
The simple reason why I do not accept this submission is that there is nothing in cl 1.9A or its context to suggest development cannot be “in accordance with a [development] consent” while at the same time being in accordance with any number of other permissions or statutory regimes, including a licence under the Liquor Act.
The plaintiff’s response to this proposition is to contend that, when the planning legislation and the Liquor Act are considered together, the Liquor Act “covers the field” as regards statutory permission to sell alcohol, such that the sale of alcohol can never be understood as being “in accordance with” a development consent (or perhaps the planning legislation generally). Reading the two statutory regimes together, I am not persuaded that the Liquor Act has this effect.
I take as my starting point the proposition that, where two statutes share a field of operation, the search is for a construction of the relevant provisions which yields a coherent and harmonious operation: Commissioner of Police (NSW) v Cottle (2022) 276 CLR 62; [2022] HCA 7 at [22]-[23]; State of NSW v Ashton [2025] NSWCA 199 at [36]-[37] per Kirk JA, Ball JA agreeing.
The Liquor Act plainly provides a specific regime to manage the licensing of, inter alia, premises where alcohol will be sold. As the plaintiff pointed out, it does so by creating a statutory prohibition on selling alcohol (s 7) or opening, keeping or using premises for the purpose of selling liquor (s 8) unless authorised to do so by a licence under the Act. Such a licence is personal to the licensee, and the licensee must be a fit and proper person to carry on the business or activity to which the business relates (see, eg, ss 43(3)(a) and 60).
The statutory regime in the Liquor Act is undoubtedly detailed and carefully tailored to Parliament’s concerns and objectives around the sale of alcohol in the State. Plainly, nothing in the provisions of the EPA Act or the LEP at issue in these proceedings permits a Council to grant a permission that circumvents the need to comply with the Liquor Act. The Development Consent does not purport to do that.
However, I am satisfied that the detailed, carefully tailored regime in the Liquor Act is entirely consistent with the Council having a separate role under the planning legislation. In light of my conclusion that the legislation confers on Council the function of granting or refusing consent for the particular development that is the subject of a development application—and not merely consent to one of the categories or subcategories of development in the LEP—there is nothing in the that should be understood as detracting from that function, simply because a proposed development will involve operating a business that also requires a liquor licence under the .
The flaw in the plaintiff’s third argument is that cl 1.9A does not say that the carrying out of the development must be rendered free from any legal impediment by the disapplication of the restrictive covenant. Rather, it says that the restrictive covenant does not apply “to the extent necessary to serve” the purpose “of enabling development … to be carried out in accordance with a consent” (emphasis added). That purpose is served, even if the development faces additional impediments, if the disapplication of the restrictive covenant clears the impediment that would otherwise be created by the restrictive covenant itself. The disapplication of the restrictive covenant in this case removes an impediment to carrying out the development which the Council has approved—that is, the use of the premises for a “Liquorland” business including the sale of alcohol. If the restrictive covenant continues to apply, it would not be possible to carry out that development, regardless of any licence that may be granted by the ILGA under the Liquor Act.
This analysis of cl 1.9A is also why, in my view, the plaintiff is not assisted by the disjunct between the scope of the Development Consent and the scope of the packaged liquor licence. The plaintiff contends that the Development Consent would be effective even if the ILGA had refused the packaged liquor licence— Liquorland would be able to carry out the development but would not be permitted to sell alcohol. I have some doubt about that, given that condition A001 of the Development Consent requires that the development must be carried out in accordance with the SEE, and records that the Council approved that document—and also because Council’s approval required the construction of a shop with signs for a “BEER DISTRICT”, a “SPIRIT TRAIL” and a “WINE REGION”. It may be that if a liquor licence were refused, an application would be necessary either to vary the existing development consent or to obtain an alternative development consent. I offer no concluded view about that, as the Court did not receive further argument about it.
In any event, as contemplated by s 29(2) of the Liquor Act and the definition of “restricted trading day” in s 4, the packaged liquor licence does not permit the sale of alcohol on Good Friday or Christmas Day. I am willing to infer that this means there will be at least two days each year in which the Development Consent permits trading, but alcohol cannot be sold.
Neither the position if a packaged liquor licence were refused (if the plaintiff is correct about the consequence) nor the position on Good Friday or Christmas day alters the conclusion which I have reached in relation to cl 1.9A. It simply reflects the fact that there are two different statutory regimes, both of which must be complied with, and which have slightly different requirements in certain respects. It does not detract from my view, for the purposes of cl 1.9A, that the disapplication of the restrictive covenant is necessary to serve the purpose of enabling the development to be carried out in accordance with the Development Consent—and that this is so despite the fact that there is an additional legal impediment to selling alcohol, being obtaining a packaged liquor licence and complying with the conditions of that licence.
While not necessary to decide, I deal for completeness with the defendant’s alternative submission that the Court should decline in its discretion to grant the injunctive relief sought, having regard to the circumstances of the case. In particular, the defendant relies upon:
the impact on Coles and Liquorland, not being parties to the Deed pursuant to which the restrictive covenant was given; and
damages being a sufficient remedy.
If I were persuaded that the restrictive covenant applied, I would not consider these matters to provide a sufficient basis for refusing injunctive relief. As to Coles and Liquorland not being parties to the Deed, those defendants plainly knew at all relevant times about the restrictive covenant, which was registered on the title—among other things, the restrictive covenant was adverted to specifically in the SEE, in the context of the author expressing the view that the restrictive covenant would not be enforceable in the face of cl 1.9A.
It does not appear to me that damages would be an adequate remedy, given the difficulty in calculating the damages, and the proprietary or quasi-proprietary nature of the interest the plaintiff is seeking to enforce.
The defendant in written submissions also adverted to—but did not develop—the possibility that the restrictive covenant might be unenforceable as a restraint of trade or an anticompetitive agreement (although the defendant did not set out to demonstrate that the restrictive covenant had the purpose or effect of substantially lessening competition in a market). As this argument was not developed and as it is not necessary to the outcome of these proceedings, I do not propose to offer a concluded view about it, but observe that the application of the restraint of trade doctrine is not without difficulty in the context of a restrictive covenant that has been registered under the Real Property Act, and that the reasonableness of a restraint that limits the supply of alcohol may give rise to particular considerations that might not arise in relation to the sale of other products. In those circumstances, it is undesirable for me to express a view about the impact of the restraint of trade doctrine on the restrictive covenant, where it is not necessary for me to do so in order to dispose of the matter.
The summons should be dismissed.
The defendant sought costs if the summons is dismissed. On the material before me, I see no reason why costs should not follow the event. I propose to order the plaintiff to pay the defendant’s costs, but reserve liberty to both parties to file any submissions seeking an alternative costs order, limited to 3 pages, within 10 business days of the date of this judgment. Should such submissions be filed, the other party is to file submissions in response, also limited to 3 pages, within 10 business days after that.
The court makes the following orders:
Summons dismissed;
The plaintiff is to pay the defendants’ costs;
Grant liberty to the parties to file and serve any submissions seeking an alternative costs order, limited to 3 pages in length, provided those submissions are filed and served by no later than 7 January 2026;
Direct that, if submissions are filed in accordance with order 3, submissions on costs by any other party be filed and served by no later than 21 January 2026, such submissions to be limited to 3 pages in length.
**********
Tacking Point Holdings Pty Ltd
JTT Enterprises Pty Ltd [2025] NSWSC 1576
(2018) 365 ALR 86
(2013) 195 LGERA 182
(2022) 256 LGERA 1
(2022) 276 CLR 62
(2024) 261 LGERA 372
(2019) 101 NSWLR 1
(2017) 95 NSWLR 70
(2018) 97 NSWLR 1132
I observe further that my conclusion is consistent with the Court of Appeal’s decision in Minister for Local Government v Blue Mountains City Council (2018) 97 NSWLR 1132; [2018] NSWCA 133 (Minister for Local Government v Blue Mountains City Council), where Leeming JA at [90] (Bathurst CJ and McColl JA agreeing) in effect recognises that there may be circumstances in which an application for injunctive relief can be brought in this Court, within this Court’s jurisdiction, even though in substance the same dispute might be litigated in the Land and Environment Court in Class 4 proceedings.
In reaching my conclusion that the Court has jurisdiction, I should not be taken to suggest that this Court’s jurisdiction can generally be enlivened, and s 71 of the LEC Act circumvented, by framing the relief to avoid a form which would fall within the ordinary language of s 20(2). However, I am satisfied that the relief sought in prayers 2 to 4 of the summons, in form and substance, is relief sought to enforce a registered restrictive covenant. The rights which the plaintiff is seeking to enforce arise from the deed between the parties in which the restrictive covenant is recorded and, following registration, the Real Property Act 1900 (NSW). The fact that the defendant’s answer to the plaintiff’s case involves reliance on the operation of cl 1.9A of the LEP is not enough to engage s 20(2) or deprive this Court of jurisdiction.
In reaching this view, I have been mindful that the presumption against interpreting legislation as depriving a superior court of jurisdiction has no operation: Minister for Local Government v Blue Mountains City Council at [85]. This is because, as it was put in LDF Enterprise Pty Ltd v State of NSW (2017) 95 NSWLR 70; [2017] NSWCA 89 at [21], “[s]ection 20(2) read with s 71 delineates an area of exclusive jurisdiction, conferring jurisdiction on one superior court of record and denying that same jurisdiction to another superior court of record”. I have not taken the presumption into account in reaching the conclusion that this Court has jurisdiction.
It is plain from the Development Consent that it contemplates not only the physical works to reconfigure the premises and install the signage, but also the operation of a business from those premises. So much must follow from the “Occupation and Ongoing Use” condition setting out hours of operation. Plainly, Council has given consent to the operation of a business from the premises. In condition A001, Council also recorded that it had approved the SEE. A reasonable person reading the Development Consent would understand that, in order to know what kind of business was the subject of the Council’s consent, one should look to the approved plans and approved documents, including the SEE.
I am satisfied that the SEE is incorporated into the Development Consent by condition A001. The SEE clearly discloses that the business for which Council’s consent was sought and granted was a business selling alcohol for consumption off-site.
Moreover, even if I were wrong about this, I am satisfied that the same conclusion could be reached by regard solely to the Development Consent and the Plans. The express condition as to hours of operation makes it clear that the Development Consent is concerned with the use of the land as well as the physical works to reconfigure the premises. As noted at [10] above, the Plans make it explicitly clear that the proposed development will be a retail space with signage for beer, wine and spirits, and the client on the Plans is identified as “coles liquor” and “Liquorland”. While I accept that it is theoretically possible for these plans to be consistent with a shop that sells only soft drinks and zero-alcohol “beer”, “wine” and “spirits”, I am satisfied that a reasonable person viewing the Plans would understand that the business to be operated from the premises following completion of the works is a business selling alcohol.
Accordingly, even if I confined my attention to the Development Consent and the Plans, I would be satisfied that the Development Consent records the Council giving consent to a “development” which includes the use of premises to sell alcohol.
The approval of the Plans and the SEE in the Development Consent, subject only to a provision that if there is inconsistency the conditions of the Development Consent prevails, provides the reason why it does not assist the plaintiff that s 4.16(4) of the EPA Act contemplates that development consent might be granted in part. While that means there will not necessarily be an alignment between the development for which consent is sought and the development for which consent is granted, in the present case the Development Consent was plainly granted by reference to the approved Plans and SEE, and on the basis that the development must comply with both the Plans and the SEE.
The plaintiff may be correct that, if the plaintiff’s narrow interpretation of the definition of “food and drink premises” is accepted, development consent was only necessary because one of the previous three outlets was a take away food outlet. The plaintiff may also be correct that a development application cannot be made for consent to carry out development that does not need consent: Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 365 ALR 86 ; [2018] NSWCA 245 at [76] per Preston CJ of LEC. This is another aspect of the plaintiff’s case that I think is attended by some doubt—in cases where minds may differ as to whether or not development consent is required it is perhaps surprising that a party cannot seek a local council’s consent out of an abundance of caution—but I assume this in the plaintiff’s favour for present purposes. The fact remains that where, as here, development consent was necessary, the Council’s grant of that consent has statutory consequences, including under cl 1.9A of the LEP.
I do not accept the plaintiff’s contention that this produces an incoherent outcome, the plaintiff’s argument being that a conversion from “shop” to “shop”, since it does not require consent, would not engage cl 1.9A. The purpose of cl 1.9A is that where the Council has given its consent to a particular development (at least where, as here, consent is required), no restrictive covenant should prevent the carrying out of that development in accordance with the Council’s consent. That is not incoherent, it simply ascribes certain statutory consequences to the Council’s exercise of its consent function. The point is that when the Council has made a considered decision to exercise that function, that decision (or the development which it contemplates) should not be frustrated or impeded by restrictive covenants and other instruments to which cl 1.9A applies.
For completeness, I would add that I am not persuaded by the defendant’s submission that, for the purposes of cl 1.20(2)(c) of the Exempt and Complying Development Codes SEPP, the restrictive covenant was “imposed” by the plaintiff’s predecessor in title, and not by the first defendant as owner of the land concerned. The defendant’s argument was that, if this were the case, then cl 1.20 of the Exempt and Complying Development Codes SEPP would have the same effect as cl 1.9A of the LEP is contended to have. There is force in the plaintiff’s argument that, whatever the terms of the Deed by which the first defendant assumed the obligation to encumber its land with the restrictive covenant, the first defendant “imposed” the restrictive covenant because the first defendant agreed to burden its land in this way and then registered the restrictive covenant.
This does not improve the plaintiff’s position. For the same reason that I see no incoherence in my conclusion as to the operation of cl 1.9A, I see no inconsistency between, on the one hand, the operation of cl 1.9A where consent is in fact required (as it was here) and, on the other hand, the more limited operation of cl 1.20(2)(c) in the circumstances to which it applies. Accordingly, there is no work to do for s 3.28(1)(a) of the EPA Act or cl 1.9 of the LEP, both of which provide that a State environmental planning policy prevails over the LEP in the event of an inconsistency.
I derive support for this conclusion from s 45(3)(c) of the Liquor Act, which evinces a statutory expectation that the two regimes will operate in parallel. That does not mean that a Council is authorised to grant consent to sell alcohol regardless of the attitude of the ILGA or the provisions of the Liquor Act. It simply reflects a statutory intention that each regime should operate according to its terms. Such an outcome is consistent with the harmonious and coherent operation of the two statutory regimes.
Even if the better interpretation of cl 1.9A were that it is only engaged where compliance with the conditions of a development consent requires conduct that would breach the restrictive covenant (which is not what cl 1.9A says and which is harder to reconcile with Carey-Evans v Wu at [60] and [86], extracted at [49] and [51] above), I would be satisfied that cl 1.9A is engaged on the facts of this case. Having approved the SEE in condition A001 of the Development Consent, and having expressly required that the development be carried out in accordance with specified documents including the SEE, Council has made it clear that Council sees a benefit to the community in having a Liquorland premises selling alcohol at the approved location. This follows, as set out above, from a sensible interpretation of the Development Consent and the SEE. The benefit to the community identified in the SEE was that the liquor store would “contribute to the need of residents and visitors” and would “meet a retail demand”. A store which did not do what the SEE indicated was proposed (ie, sell packaged liquor) cannot be assumed to contribute to such a need or meet such a demand.
The benefit to a given community of a new packaged liquor store can be a matter of controversy. In light of my conclusion as to the parallel operation of both the EPA Act and the Liquor Act, the legislation provides that, at least in cases where development consent is required, both the local consent authority and the ILGA have a role in deciding whether that use of the land should be permitted. In the present case, Council has decided that this should occur, and that the development should be in accordance with, among other things, the SEE. That does not supplant the ILGA’s role, but it does mean that it would not be “in accordance with” the development consent to carry out a development that involved using the land for the purpose of a different business, not being the business proposed in the SEE.
Accordingly, I accept the defendant’s contention that the restrictive covenant does not apply to prevent the operation of the proposed Liquorland business in accordance with the Development Consent.
(2018) 233 LGERA 432