Tacking Point Holdings Pty Ltd v JTT Enterprises Pty Ltd

1. [1]

   The plaintiff, Tacking Point Holdings Pty Ltd, is the registered proprietor of Lot 1 in Deposited Plan 869214 at 102a Ocean Drive, Port Macquarie, where it operates the Tacking Point Tavern hotel and bottle shop (the Tavern Land). The Tavern Land has the benefit of a registered restrictive covenant in respect of which the burdened land is Lot 1 in Deposited Plan 1163758 at 100 Ocean Drive Port Macquarie, which is a neighbouring shopping centre (the Lighthouse Plaza). The relevant operative clause of the restrictive covenant is as follows:

2. [2]

   The plaintiff seeks the following relief:

3. [3]

   The defendants resist that relief on the basis of cl 1.9A(1) of the Port Macquarie-Hastings Local Environmental Plan 2011 (the LEP), which provides:

Factual background

1. [4]

   The first defendant, JTT Enterprises Pty Ltd, is the registered proprietor of the Lighthouse Plaza land.

2. [5]

   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.

3. [6]

   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.

4. [7]

   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)).

5. [8]

   In the Development Application, two development types are identified, being “Business premises” and “Minor building alterations (internal)”.

6. [9]

   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).

7. [10]

   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.

8. [11]

   In the SEE, the proposed development is described as follows:

9. [12]

   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.

10. [13]

    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:

11. [14]

    I make the following observations about these subparagraphs:

    1. (1)

       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).

    2. (2)

       Subparagraphs (b), (c) and (h) clearly address impacts of the proposed use of the land as a bottle shop.

12. [15]

    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.

13. [16]

    In a section dealing with potential social impacts from the development, the SEE includes the following:

14. [17]

    Section 6 of the SEE, titled “POSITIVE OUTCOMES OF THE DA”, includes the following:

15. [18]

    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.

16. [19]

    The Court also received evidence indicating that the Plans and the SEE were publicly accessible on-line through the Council’s “Application Tracker”.

17. [20]

    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:

18. [21]

    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.

19. [22]

    The Development Consent also includes the following condition under the heading “OCCUPATION AND ONGOING USE”:

20. [23]

    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.

21. [24]

    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.

22. [25]

    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.

Jurisdiction of this Court

1. [26]

   At the beginning of the hearing, I raised with the parties a question about the Court’s jurisdiction, having regard to ss 20(1)(e), 20(2) and 71 of the Land and Environment Court Act 1979 (NSW) (the LEC Act). Those provisions are:

2. [27]

   It is common ground that the LEP is a “planning or environmental law” as defined in s 20(3).

3. [28]

   This question arose because, in addition to the prayers for relief extracted above at [2], the summons included, as prayer 1, the following prayer:

4. [29]

   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.

5. [30]

   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.

6. [31]

   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.

7. [32]

   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.

8. [33]

   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.

9. [34]

   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.

10. [35]

    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.

11. [36]

    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.

Relevant legislation

1. [37]

   Clause 1.9A of the LEP is enabled by s 3.16 of the EPA Act, which is in the following terms:

2. [38]

   The EPA Act includes the following in relation to the provision of development consent:

3. [39]

   As I note above at [7], “development” is defined in s 1.5(1)(a) to include the use of land.

4. [40]

   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).

5. [41]

   “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:

6. [42]

   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.

7. [43]

   I proceed on the basis that the proposed Liquorland store falls within item 3 of the LEP.

8. [44]

   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).

9. [45]

   The Liquor Act relevantly provides:

10. [46]

    The Exempt and Complying Development Codes SEPP relevantly provides:

11. [47]

    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.

12. [48]

    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:

Operation of clause 1.9A

1. [49]

   In Carey-Evans v Wu (2022) 256 LGERA 1; [2022] NSWLEC 144 (Carey-Evans v Wu) at [60], Preston CJ of LEC said that the applicability of cl 1.9A of a local environmental plan which was in the same terms as cl 1.9A of the LEP:

2. [50]

   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”.

3. [51]

   Of the third step, his Honour went on to say at [86]:

4. [52]

   The restrictive covenant at issue in these proceedings restricts the operation of a business selling alcohol from the premises and is therefore a covenant of a kind capable of engaging cl 1.9A. It is also common ground that the Development Consent is a consent granted under the EPA Act. The plaintiff contends that the restrictive covenant is nevertheless not disapplied by cl 1.9A of the LEP because the “development on land … to be carried out in accordance with … a consent granted under the Act” (to take the language of cl 1.9A(1)) does not include the sale of alcohol. This is on the following grounds:

5. [53]

   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.

6. [54]

   I deal with each of the plaintiff’s contentions in turn.

7. [55]

   I am satisfied that the Development Consent gives consent to the use of the premises to sell alcohol. As I explain in the context of the plaintiff’s second and third arguments, this does not mean I conclude the Development Consent is the only authorisation necessary to carry on the business of selling alcohol. I deal with that issue below in the context of the plaintiff’s second and third arguments. However, I am satisfied for the reasons that follow that, by the Development Consent, the Council gave its consent—subject to the conditions set out in the document—to the use of the land for the operation of a business selling alcohol.

8. [56]

   In considering the Development Consent, I have proceeded on the basis of Justice Meagher’s observations in Allandale Blue Metal Pty Ltd v Roads and Maritime Services (2013) 195 LGERA 182; [2013] NSWCA 103 at [43] that the extrinsic evidence to which reference may legitimately be made when construing a public document such as a development consent is more limited than in the case of a contract. As his Honour said at [43] and [45]:

9. [57]

   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.

10. [58]

    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”.

11. [59]

    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:

    1. (1)

       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.

    2. (2)

       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.

    3. (3)

       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.

12. [60]

    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.

13. [61]

    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.

14. [62]

    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.

15. [63]

    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.

16. [64]

    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.

17. [65]

    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).

18. [66]

    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.

19. [67]

    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.

20. [68]

    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.

21. [69]

    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.

22. [70]

    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.

23. [71]

    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.

24. [72]

    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.

25. [73]

    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.

26. [74]

    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.

27. [75]

    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.

28. [76]

    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.

29. [77]

    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.

30. [78]

    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.

31. [79]

    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.

32. [80]

    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).

33. [81]

    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.

34. [82]

    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 Liquor Act 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 Liquor Act.

35. [83]

    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.

36. [84]

    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.

37. [85]

    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.

38. [86]

    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.

39. [87]

    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.

40. [88]

    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.

41. [89]

    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.

42. [90]

    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.

Injunctive relief

1. [91]

   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:

   1. (1)

      the impact on Coles and Liquorland, not being parties to the Deed pursuant to which the restrictive covenant was given; and

   2. (2)

      damages being a sufficient remedy.

2. [92]

   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.

3. [93]

   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.

4. [94]

   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.

Conclusion

1. [95]

   The summons should be dismissed.

2. [96]

   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.

3. [97]

   The court makes the following orders:

   1. (1)

      Summons dismissed;

   2. (2)

      The plaintiff is to pay the defendants’ costs;

   3. (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. (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.