Land and Environment Court
of New South Wales
CITATION: Bales Investments Pty Limited & Ors v Cessnock City Council [2009] NSWLEC 1062 PARTIES: APPLICANT
RESPONDENT
Bales Investments Pty Limited & Ors
Cessnock City CouncilFILE NUMBER(S): 11080 of 2008 CORAM: Bly C KEY ISSUES: SECTION 96 MODIFICATION :- trading hours LEGISLATION CITED: Environmental Planning and Assessment Act 1979 DATES OF HEARING: 27/02/09 EX TEMPORE JUDGMENT DATE: 27 February 2009 LEGAL REPRESENTATIVES: APPLICANT
Mr C. Ireland, barrister
Instructed by O'Sullivan Saddington LawyersRESPONDENT
Mr T. Howards, barrister
instructed by Mallik Rees Lawyers
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESBly C
27 February 2009
JUDGMENT11080 of 2008 Bales Investments Pty Limited & Ors v Cessnock City Council
1 This appeal relates to the Cessnock City Council’s refusal of a modification application under section 96 of the Environmental Planning and Assessment Act 1979 in relation to the trading hours of the Wentworth Hotel in Vincent Street Cessnock. The appeal is part heard and is to resume on 12 March 2009.
2 The development consent (DA 8/2006/533/3) that permitted the hotel to trade until 3 a.m. on Friday and Saturday nights only was subject to a condition that limited these trading hours to a 12-month trial period. That trial period expired on 21 November 2007.
3 On 5 November 2008 the registrar, with the consent of both parties extended the trial period until 28 February 2009.
4 The parties have now asked the court to make consent orders that have the effect of further extending the trial period until the determination of these proceedings. I see no reason why these orders should not be made.
5 By consent the Court makes the following orders:
________________________(1) Until further order of the Court, the operation of the development consent DA 8/2006/533/3 the subject of these proceedings is extended to the date of determination of these proceedings.
(2) Liberty to apply in relation to order 1 above on 48 hours notice.
T A Bly
Commissioner of the Court
- AGLC
- Bales Investments Pty Limited v Cessnock City Council [2009] NSWLEC 1062
- Case
- [2009] NSWLEC 1062
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether to uphold the council's refusal to modify the trading hours of the Wentworth Hotel beyond the originally stipulated trial period. Given that the trial period had expired, the court had to consider the merits of extending these hours, particularly in light of the circumstances surrounding the hotel's operations and the potential impact on the local community. The court also had to assess the procedural fairness of the council's decision and whether the modification application met the statutory criteria for approval.
The court found that the consent orders proposed by the parties should be granted. The primary reasoning behind this decision was the lack of any compelling reason to deny the extension of the trial period until the proceedings were determined. The consent orders extended the operation of the development consent DA 8/2006/533/3 until the date of determination of these proceedings. Additionally, the court granted liberty to apply to modify these orders with 48 hours' notice.
The final orders of the court extended the operation of the development consent DA 8/2006/533/3 until the determination of the proceedings. The court also allowed for applications to be made to modify this order with 48 hours' notice.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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