ALH Group Pty Limited v Fairfield City Council

[2008] NSWLEC 52

Land and Environment Court

of New South Wales

CITATION:

ALH Group Pty Limited v Fairfield City Council [2008] NSWLEC 52
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:

APPLICANT
ALH Group Pty Limited

RESPONDENT
Fairfield City Council

FILE NUMBER(S):

11162 of 2007

CORAM:

Hussey C

KEY ISSUES:

Section 96 Modification :- Confirmation of trading hours, completion of 12 month trial period.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Fairfield Local Environmental Plan 1994

DATES OF HEARING:

8/02/2008

EX TEMPORE JUDGMENT DATE:

8 February 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr M. Wright, barrister
Instructed by G. Shapiro
of Deacons

RESPONDENT
Mr J. Merlino, solicitor
of Home Wilkinson Lowry

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

8 February 2008

11162 of 2007 ALH Group Pty Limited v Fairfield City Council

This decision was given extemporaneously. It has been revised and edited prior to publication.

JUDGMENT

1 This appeal was lodged against Conditions 2 and 3, imposed on a s 96 Modification application concerning the operations of the Smithfield Tavern, which is situated at the intersection of Justin Street and The Horsley Drive, Smithfield.

2 According to the details of the Statement of Facts & Contentions, the Tavern has operated on the site since the early 1980s under various consents in accordance with a range of operating hours. The aforementioned modifications relate to the following conditions imposed in Development Consent 1751/2005.

The approved hours of operation for the use of the premises are:

Monday to Friday: 9.00 a.m. – 3.00 a.m.
Saturday: 10.00 a.m. – 3.00 a.m.
Sunday: 10.00 a.m. – 10.00 p.m.
Public holidays: No work/trading/operations is permitted.

The approved hours will be limited to a period of twelve (12) months from the date of this consent, following which the hours of operation of the Tavern shall refer to the following:

Monday to Sunday: 10.00 a.m. – 12.00 midnight

Condition 3; Twelve (12) Month Consent Only

The consent is valid for a period of twelve (12) months from the date shown hereon. Prior to the expiration of this 12-month period, a new development application will be required to be lodged and approval obtained prior to the use continuing.

3 However in the lead up to the appeal, the parties have subsequently agreed to consent orders, which approve the following modifications:

Condition 2; Hours of Operation

The approved hours of operation of the use of the premises:

Monday to Friday: 9.00 a.m. – 3.00 a.m.
Saturday: 10.00 a.m. 3.00 a.m.
Sunday: 10.00 a.m. – 10.00 p.m.

Condition 3; Condition 3 be deleted.

4 There were three objections to the modification application and those objections relate to possible anti-social behaviour and a preference for a further trial period. The objectors were notified of today's hearing but there are no appearances.

5 This application has been the subject of detailed assessment by Nuestein Rosenberg Partnership, who conclude that the modifications satisfy the relevant planning controls for approval.

6 There is a detailed acoustic assessment report by RSA Acoustics consultants, which supports the application. From the documents presented to the Court, the Tavern operates in accordance with a plan of management, which has been considered satisfactory over its years of operation.

7 The evidence includes a detailed merit assessment of the proposal including the objections, resulting in the council planners recommendation for approval for the proposal. This recommendation has been accepted by council’s IHAP.

8 Accordingly, I note the applicant's submissions that:

• The Tavern and basically operated under the proposed hours since 1992 without complaint.
• The Tavern is located in a commercial zone and is well separated from the residential areas thereby minimising opportunities for adverse amenity impacts.
• The modification has been referred to local Licensing Police, who raised no objection.
• Compliance with the existing operational plan of management is considered satisfactory to achieve acceptable environmental amenity outcomes.

9 Therefore, in the absence of any substantive challenge to the evidence, I consider the consent orders are reasonable.

10 In summary then, I am satisfied that:

i) This application relates to the same development.
ii) The proposal has been notified and the objections considered.
iii) The merit assessment of proposal then results in the development reasonably satisfying the relevant planning controls to warrant consent.

Consent Orders.

1. The Applicant’s section 96 appeal be upheld.

2. The Development Consent DA 1751/2005, for the formalisation of trading hours of the Smithfield Tavern at 699 The Horsley Drive, Smithfield, dated 1 May 2006, be modified so as to read:

Condition 2 shall read Hours of Operation

The approved hours of operation for the use of the premises are:

Monday to Friday 9.00am - 3.00am
Saturday: 10.00am – 3.00am
Sunday: 10.00am – 10.00pm

3. Condition 3 be deleted.

4. The following words in the description are to be deleted. Date Consent will Lapse 1/4/07.

5. Return Exhibit 1.

Note : Each party to pay their own costs of the proceedings.

___________________

R Hussey
Commissioner of the Court
ljr

19/02/2008 - Additions to Order No. 4 - Paragraph(s) Order No. 4