Appeal Dismissed: Order Under Restricted Premises Act 1943

The Court of Appeal dismissed an appeal challenging an order under s 17 of the Restricted Premises Act 1943, ruling that an order can be made regardless of whether the premises are being used lawfully.

[ADDRESS] of Appeal

CITATION: [COMPANY] v [NAME] of Sydney Council [2007] NSWCA 41

HEARING DATE(S): 5 March 2007

JUDGMENT DATE: 5 March 2007

JUDGMENT OF: Ipp JA; Tobias JA; [NAME] JA

EX TEMPORE JUDGMENT DATE: 5 March 2007

DECISION: Appeal dismissed with costs

CATCHWORDS: Environment and planning – Building control – Restricted Premises Act 1943 s 17 – Manner in which a [NAME] is operated – Whether personal fault on the part of the owner or occupier of a [NAME] is required for an order under s 17(a) where the [NAME] is operating lawfully within a development consent

LEGISLATION CITED: Restricted Premises Act 1943 Supreme Court Act 1970

CASES CITED: None

PARTIES: [COMPANY] [NAME] of Sydney Council

FILE NUMBER(S): CA 40838/06

COUNSEL: [redacted] R: [NAME]

SOLICITORS: [redacted] R: [NAME], Sydney

LOWER COURT JURISDICTION: Land & [ADDRESS] COURT FILE NUMBER(S): L&E 40301/06

LOWER COURT JUDICIAL OFFICER: [NAME] OF DECISION: 6 December 2006

LOWER COURT MEDIUM NEUTRAL CITATION: [NAME] of Sydney Council v De Cue Pty Ltd [2006] NSWLEC 763

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40838/06

IPP JA TOBIAS JA [NAME] JA

Monday 5 March 2007 [COMPANY] v [NAME] OF SYDNEY COUNCIL Judgment

1 THE COURT: This appeal is dismissed with costs. [ADDRESS] is of the unanimous opinion that the appeal does not raise any question of general principle. Pursuant to s 45(4) of the Supreme Court Act 1970, the Court's reasons in short form are as follows. 2 In the Court's view, the primary judge's decision is clearly correct both in terms of his findings of fact, which are not the subject of challenge, as well as his construction of the provisions of s 17 of the Restricted Premises Act 1943 (the RPA). 3 The essence of the appellant's case, as the Court understands it, is that it was not open to the Land and [ADDRESS] as a matter of construction of s 17(1) to order a particular owner or operator of a [NAME] not to allow or to use the particular premises as a [NAME] merely because the existence of the [NAME] has the external impacts referred to in s 17(5), which are found as a matter of fact to be significant and, therefore, unacceptable. 4 Although there is no doubt that s 17(5) directs attention to the manner of operation of the [NAME], it does so on an objective basis, and any finding of personal fault on the part of any particular owner or occupier is irrelevant. What is relevant is the particular manner in which the [NAME] is operated in terms of the nature of the services it offers, the type of clientele it attracts, the sensitivities of the location in which the [NAME] is operated and other matters of that nature to which the primary judge referred in [64] and [96] of his judgment. A determination must then be made taking into account the considerations referred to in s 17(5) as to the external impacts caused by these characteristics of its operations. 5 In any event, in [96] of his judgment the primary judge found that the incidents complained of by the local residents were in fact attributable to the manner in which the appellant operated the [NAME]. To the extent to which fault might be required, it seems to the Court that fault was thus found. However, in the Court's view, the primary judge was correct in finding that personal fault on the part of the owner or occupier of a [NAME] is not a precondition to the making of an order under s 17(1) of the Act: cf [110] of his Honour's judgment. 6 It was submitted by the appellant that it would be an absurdity for an order to be made under s 17(1) where there was in place a development consent that permitted the use of the relevant land for the purposes of a [NAME] so that any subsequent operator of a [NAME] lawfully on the premises would then be subject to the making of a further order under s 17(1) of the RPA. [ADDRESS] sees nothing absurd in such a scenario. Whether or not an order is made against a subsequent owner or occupier will depend upon the facts of the particular case, including the manner of operation of the [NAME] by that particular owner or occupier. 7 In the present case the [NAME] was operated for many years prior to the present appellant taking it over in October 2005 in a manner which his Honour found did not cause the unacceptable external impacts which the operation of the [NAME] by the appellant has caused.

Accordingly, it does not necessarily follow that a subsequent operator will have the same difficulties that the current appellant has been unable to overcome. 8 Finally, the appellant submitted that an order could not be made under s 17 where the owner or occupier was operating the [NAME] in the most reasonable and efficient manner possible. Even if this was so – and the primary judge did not so find – it is an irrelevant consideration if otherwise the nature of the particular operation of the [NAME] is causing the impacts referred to in s 17(5). 9 The appellant submitted that even if its appeal was dismissed, it was entitled to present the appeal and, therefore, it should be granted a further extension of the stay granted by the primary judge which expires on 9 April 2007. It thus seeks a stay of a further four months. The respondent opposes this. There is no doubt that the appellant had a right to pursue the appeal but in the Court's view it was doomed to fail and the appellant ought to have been aware of the high risk of failure. It should therefore have at least conditionally put in place arrangements to meet the deadline of the stay. 10 The Chief Judge's judgment was handed down on 6 December 2006 and a notice of appeal without appointment was filed on 21 December 2007. A notice of appeal with appointment was not filed until 7 February 2007, when an application was made to expedite the hearing of the appeal, which was granted no doubt because of the fact that the stay would expire on 9 April. [ADDRESS] sees no reasons or circumstances which would justify any further extension of that stay with the result that the application to extend the stay is refused. 11 The order of the Court is, therefore, that the appeal is dismissed with costs. **********

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