Jones-Evans v Council of the City of Sydney

[2006] NSWLEC 628

Land and Environment Court

of New South Wales

CITATION:	Jones-Evans v Council of the City of Sydney [2006] NSWLEC 628
PARTIES:	APPLICANT Lindsay Jones-Evans RESPONDENT Council of the City of Sydney
FILE NUMBER(S):	10168 of 2005
CORAM:	Moore C
KEY ISSUES:	Development Consent :- Modification application Licensed premises Extended trial period Noise .
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 96AA
CASES CITED:	Jones-Evans v Council of the City of Sydney [2005] NSWLEC 300; 1643 Pittwater Road Pty Limited v Pittwater Council (2004) NSWLEC 685; .
DATES OF HEARING:	27 September 2006
EX TEMPORE JUDGMENT DATE:	09/27/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr A Whealy, solicitor Gadens RESPONDENT Mr S Kondilios, solicitor Maddocks Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

27 Sewptember 2006

05/10168 Lindsay Jones-Evans v Council of the City of Sydney

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The consequence of the Court’s decision in this appeal is the modification of the detailed conditions of an existing development consent. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

1. COMMISSIONER: This is an appeal pursuant to s 96AA of the Environmental Planning and Assessment Act 1979 seeking an alteration to the trial period for the trading of a restaurant known as the Victoria Room Restaurant at 231-235 Victoria Street, Darlinghurst (the restaurant).

2. In the decision given by me on 19 May 2005 [Jones-Evans v Council of the City of Sydney [2005] NSWLEC 300], I granted extension for a 12-month trial period of the trading hours of the restaurant, by effectively two hours on the various trading nights. That consent was subject to a number of conditions, including condition 9, which relates to noise levels and the like.

3. The trial period commenced operating in mid-August 2005 and an application now comes to me effectively to adopt permanently that trial period. After discussions with the parties and hearing evidence given today by Mr Kevin Taylor, a resident of 10 Hardie Street, Darlinghurst, and considering a further submission from a resident of 12 Hardie Street, I am satisfied that it would be appropriate to permit the extended trading hours to continue but on the basis of a further five-year trial period – that being the position contended for by the council.

4. That further extended five-year trial period is now not opposed by the applicant. Mr Whealy, solicitor for the applicant, has sought and obtained instructions that the applicant accepts that five-year trial trading period and has also agreed to accept an additional condition which I am satisfied I can impose in light of the decision of McClellan CJ in 1643 Pittwater Road Pty Limited v Pittwater Council (2004) NSWLEC 685 at paras 51 and 52.

5. That condition – which I am satisfied is reasonably incidental to, and related to, the extension of trading hours – will involve further noise testing at no cost to the council, and at times selected by the council (presumably in conjunction with local residents), to ensure that the noise provisions of the existing consent are being complied with and, if not, to enable appropriate remediation measures to be identified by that testing for implementation by the applicant.

6. No more than three such tests are to be undertaken and they are to be undertaken during the first twelve months of the further five-year trial period.

7. I am satisfied, under all of those circumstances, that it is appropriate to uphold the appeal by consent and to grant revised conditions of consent that will incorporate a condition to be settled between the parties concerning the noise testing for a further five year trial period.

Commissioner of the Court