McRedmond v Tassell - [2002] NSWSC 1163

CITATION: McREDMOND v TASSELL [2002] NSWSC 1163

FILE NUMBER(S): SC 13634/01

HEARING DATE(S): 8 April 2002

JUDGMENT DATE: 5 December 2002

PARTIES :

Plaintiffs: John McRedmond & 3 ors
Defendant: Sean Garnet Tassell

JUDGMENT OF: Hulme J at 1

LOWER COURT
JURISDICTION : Licensing Court of NSW

LOWER COURT
FILE NUMBER(S) :

LOWER COURT
JUDICIAL OFFICER :

COUNSEL : Plaintiff: J Kildea
Defendant: SB Austin QC

SOLICITORS: Plaintiff: Slater & Elias
Defendant: Back Schwartz Vaughan

DECISION: The Summons is dismissed with costs

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HULME J
Thursday, 5 December 2002

John McREDMOND AND ORS v Shaun Garnet TASSELL

JUDGMENT

1 HULME J: By Summons filed on 23 November 2001 the Plaintiffs seek the following orders:-

1. A declaration that the Licensing Court of New South Wales erred in law in granting the application by the Defendant for the conditional removal of a Hotelier’s Licence from Stephen Street, Urana to premises at 320 Hillsborough Road, Warners Bay.

2. An order that the application for conditional removal be refused.

3. Alternatively, an order that the matter be remitted to the Licensing Court of New South Wales to be heard and determined in accordance with the law.

2 At the hearing before me the Plaintiff’s complaints were advanced under 6 headings. It is convenient to deal with them generally seriatim.

3 The first complaint was that at the hearing before the Licensing Court the Defendant was allowed to proceed on the basis of an amended plan of the proposed licensed premises.

4 The application to the Licensing Court was lodged on 18 April 2002. At that time the premises to which removal was sought were of the nature of a large rustic barn and it was proposed that before removal was effected, there be extensive modifications and extensions to that building, the construction of a freestanding bottle shop and storage “shed” and a freestanding 50 suite motel and the provision of substantial car parking. Plans showing what was proposed accompanied the application and those plans had been approved by the Lake Macquarie Shire Council on 30 March 2000.

5 Subsequently, the Defendant sought to amend the plans and on 7 December 2000 the Shire Council approved the amended plans. However, the Council’s notation of approval is dated 30 March 2000, an approach taken apparently with the intent of ensuring that the life and period of the original consent was not extended by virtue of the consent to the modified plan. The approach also reflects section 96(4) of the Environmental Planning and Assessment Act 1979 which provides:-

“Modification of a development consent in accordance with this Section is not to be construed as the granting of development consent under this Part but a reference in this or any other Act to a development consent is a reference to the development consent so modified.”

6 Although it is not, I think, necessary to record all of the changes in…

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 McRedmond v Tassell

Details

AGLC: McRedmond v Tassell [2002] NSWSC 1163
Case: [2002] NSWSC 1163
Decision Date: 5 December 2002

CaseChat Overview and Summary

The case of McRedmond v Tassell involved a challenge by John McRedmond and others to a decision of the Licensing Court of New South Wales which granted Sean Garnet Tassell conditional permission to remove a Hotelier’s Licence from Stephen Street, Urana to premises at 320 Hillsborough Road, Warners Bay. The plaintiffs sought a declaration that the Licensing Court erred in law, an order refusing the application for conditional removal, and alternatively, an order remitting the matter to the Licensing Court. The court heard six grounds of complaint: the allowance of an amended plan, the interpretation of "neighbourhood," the relevance of permissible use to the court's discretion, the conformity of the proposed premises with the plan, the application of the correct test for primary purpose, and the suitability of the premises, specifically the location of the gaming room.

The court dismissed all grounds of complaint. Regarding the amended plan, the court found the Licensing Court had the discretion to permit reliance on an amended plan under section 15 of the Liquor Act. In interpreting "neighbourhood," the court held the Licensing Court correctly considered the absence of community facilities and residential aggregation. The court also found that permissible use was irrelevant to the Licensing Court's discretion. Concerning the conformity of the proposed premises with the plan, the court noted that the Licensing Court had the authority to ensure compliance with the applicant's undertaking. The court rejected the argument that the Licensing Court applied the wrong test for primary purpose, finding the court's reasons sufficient despite some infelicity of expression. Lastly, the court upheld the Licensing Court's finding that patrons were not compelled to pass through the gaming room to access other parts of the hotel, holding that the court's conclusion was supported by evidence.

Ultimately, the summons was dismissed with costs.

Orders