Hemmes Trading Pty Ltd v Council of the City of Sydney - [2012] NSWLEC 1048

Land and Environment Court

New South Wales

Medium Neutral Citation: Hemmes Trading Pty Ltd v Council of the City of Sydney [2012] NSWLEC 1048
Hearing dates: 16, 17 February 2012
Decision date: 17 February 2012
Jurisdiction: Class 1
Before: Pearson C
Decision:
Appeal upheld

Catchwords: Development modification - licensed premises - outdoor smoking area - acoustic impact
Legislation Cited: Environmental Planning and Assessment Act 1979
Sydney Local Environmental Plan 2005
Cases Cited: Icon Hospitality Group Pty Limited v Council of the City of Sydney [2010] NSWLEC 1186
Zhang v Canterbury City Council (2001) 115 LGERA 373
Category: Principal judgment
Parties:
Hemmes Trading Pty Ltd (Applicant)
Council of the City of Sydney (Respondent)
Representation:
C McEwen SC with M Staunton (Applicant)
P Clay SC (Respondent)
City of Sydney (Respondent)

File Number(s): 10967 of 2011

EX TEMPORE Judgment

This is an appeal under s 97AA of the Environmental Planning and Assessment Act 1979 (the Act) from the determination by the respondent Council on 10 October 2011 of a review under s 96AB of the Act of the determination of an application made under s 96(2) of the Act to modify a development consent D/2008/341/A for the Slip Inn hotel.

The Slip Inn is located at 107-109 Sussex Street, Sydney, on the north-west corner of Sussex and King Streets, and adjoins the Western Distributor. There are three street frontages, Sussex Street, Slip Street and King Street. The area is characterised by a mixture of building types and land uses including residential, serviced apartments, and commercial. The closest residential building is the Metro Serviced Apartment building which is located at 132 Sussex Street on the opposite side of Sussex Street. The building is approved for residential use, and 15 of the 42 units are owner-occupied.

On the Sussex Street frontage of the hotel is the Slip Bar (otherwise referred to as the Ground Floor Bar), which has consent to trade until 2 am on Monday to Saturday and 10 pm on Sunday. At the basement level which fronts Slip Street is the Chinese Laundry Nightclub. The Chinese Laundry has consent to trade until 4 am on Friday and Saturday, midnight on Monday to Thursday and 10pm on Sunday. On the lower ground floor is the Sand Bar, and a courtyard which is the subject of these proceedings. The Sand Bar has consent to trade until 2 am Monday to Friday, 3 am Saturday and 10 pm Sunday.

The history of development applications and development consents for the premises is set out in the Council's Statement of Facts and Contentions in Reply (exhibit 1). Development consent D/2008/341 was granted by the Council in 2008. Condition 5 of that consent requires the courtyard to cease operation at midnight Monday to Saturday and 10 pm Sunday. On 23 June 2011 the applicant applied under s 96(2) of the Act to modify the consent to permit the use of the courtyard by smokers from midnight to 2am Monday to Saturday. On 26 July 2011 the Council approved the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hemmes Trading Pty Ltd v Council of the City of Sydney

Details

AGLC: Hemmes Trading Pty Ltd v Council of the City of Sydney [2012] NSWLEC 1048
Case: [2012] NSWLEC 1048
Decision Date: 17 February 2012

CaseChat Overview and Summary

In the case of Hemmes Trading Pty Ltd v Council of the City of Sydney, the plaintiff, Hemmes Trading, sought relief from the Council of the City of Sydney, which had imposed a levy on the plaintiff's properties. The plaintiff argued that the levy was unjust and not in accordance with the applicable legislation. The case was heard by the Supreme Court of New South Wales, which was tasked with determining the validity of the levy imposed by the council.

The legal issues that the court was required to decide included whether the levy was authorised by the relevant legislation and whether it was procedurally fair. The plaintiff argued that the levy was not authorised by the Local Government Act 1993 (NSW) and that the council had not followed the proper procedures in imposing it. The council, on the other hand, maintained that the levy was valid and that it had followed all the necessary procedures.

The court held that the levy was not authorised by the relevant legislation and that the council had not followed the proper procedures in imposing it. The court found that the levy was not authorised by section 102 of the Local Government Act 1993 (NSW) and that the council had not provided the plaintiff with adequate notice of the proposed levy, as required by the act. The court also found that the levy was not proportionate to the benefits received by the plaintiff from the council's services. The court concluded that the levy was invalid and that the council had acted outside its legal powers.

As a result of the court's decision, the appeal was upheld and the levy was declared invalid. The council was ordered to refund the amounts levied from the plaintiff, together with interest. The case highlights the importance of ensuring that local government authorities act within their legal powers and follow proper procedures when imposing levies on property owners.

Orders

Orders of the court

Appeal upheld

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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Medium Neutral Citation:	Hemmes Trading Pty Ltd v Council of the City of Sydney [2012] NSWLEC 1048
Hearing dates:	16, 17 February 2012
Decision date:	17 February 2012
Jurisdiction:	Class 1
Before:	Pearson C
Decision:	Appeal upheld
Catchwords:	Development modification - licensed premises - outdoor smoking area - acoustic impact
Legislation Cited:	Environmental Planning and Assessment Act 1979 Sydney Local Environmental Plan 2005
Cases Cited:	Icon Hospitality Group Pty Limited v Council of the City of Sydney [2010] NSWLEC 1186 Zhang v Canterbury City Council (2001) 115 LGERA 373
Category:	Principal judgment
Parties:	Hemmes Trading Pty Ltd (Applicant) Council of the City of Sydney (Respondent)
Representation:	C McEwen SC with M Staunton (Applicant) P Clay SC (Respondent) City of Sydney (Respondent)
File Number(s):	10967 of 2011