Megaplay Properties Pty Ltd v Cessnock City Council - [2021] NSWLEC 1712

Land and Environment Court

New South Wales

Medium Neutral Citation: Megaplay Properties Pty Ltd v Cessnock City Council [2021] NSWLEC 1712
Hearing dates: 6-7 October 2021
Date of orders: 23 November 2021
Decision date: 23 November 2021
Jurisdiction: Class 1
Before: Gray C
Decision:
The Court orders that:
(1) The appeal is upheld.
(2) Development consent is granted for the extension of trading hours to 24 hours, 7 days a week, for the service station and food and drink premises at 247 Wine Country Drive, Nulkaba, subject to the conditions of consent in Annexure A.
(3) The exhibits are returned, except for Exhibits A and 5.

Catchwords:
APPEAL – development application – extension of trading hours of service station and food and drink premises – 24-hour operation – acoustic impacts – sleep disturbance – character of the area

Legislation Cited:
Cessnock Local Environmental Plan 2011, cl 2.3
Environmental Planning and Assessment Act 1979, s 8.7
State Environmental Planning Policy (Infrastructure) 2007, cl 101
State Environmental Planning Policy No 55—Remediation of Land, cl 7
State Environmental Planning Policy (Koala Habitat Protection) 2020

Cases Cited:
BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399
Fairfield City Council v N & S Olivieri P/L [2003] NSWCA 41
Jonah Pty Limited v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99

Texts Cited:
Australian Standards: AS 1158.3:2005 Lighting for roads and public spaces – Pedestrian Area (Category P) Lighting – Performance and design requirements
Australian Standards: AS 4282:1997 Control of the obtrusive effects of outdoor lighting
Cessnock Development Control Plan 2010
Department of Environment, Climate Change and Water NSW, NSW Road Noise Policy (March 2011)
Environment Protection Authority NSW, Noise Policy for Industry (2017)
Department of Environment, Climate Change and Water NSW, NSW Road Noise Policy (March 2011)
Hunter Regional Plan 2036
Road and Maritime Services, Guide to Trip Generating Developments (2002)

Category: Principal judgment
Parties: Megaplay Properties Pty Ltd (Applicant)
Cessnock City Council (Respondent)
Representation:
Counsel:
T To (Applicant)
J McKelvey (Respondent)
Solicitors:
Mills Oakley (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s): 2021/32316
Publication restriction: No

Judgment

COMMISSIONER: Wine Country Drive is a state road linking the Hunter Expressway with the Hunter Valley Vineyards District, Cessnock town centre and residential areas in Nulkaba and Rothbury. A BP service station is located at 247 Wine Country Drive, Nulkaba, together with a food and drink services, both of which have been in operation since June 2021. There is also an additional food and drink premises with drive through facilities on the site, but this component is currently vacant and is not operational. By a development consent granted on 19 October 2016 (the existing consent), the service station is permitted to operate between the hours of 5am and 11pm, and the food and drink premises can operate between 6am and 11pm. The present appeal concerns a development application to extend the trading hours for all premises to 24-hour trading. The development application was refused by Cessnock…

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.

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Details

Case: [2021] NSWLEC 1712
Decision Date: 23 November 2021

CaseChat Overview and Summary

Megaplay Properties Pty Ltd, the owner of a service station and food and drink premises located at 247 Wine Country Drive, Nulkaba, appealed against the decision of Cessnock City Council to deny an application for development consent to extend trading hours. The dispute was heard in the Land and Environment Court of New South Wales. The applicant sought to extend trading hours from 6:00 am to 2:00 am to 24 hours, 7 days a week. The Council opposed the application on the basis that it would have a significant adverse impact on the amenity of the local neighbourhood, including noise and light pollution, and would not comply with relevant planning controls.

The key legal issues before the court were whether the proposed development would have a significant adverse impact on the amenity of the local neighbourhood and whether the development was consistent with the relevant planning controls. The court had to consider the evidence presented by both parties and determine whether the applicant had demonstrated that the proposed development would not have a significant adverse impact on the amenity of the local neighbourhood and that it was consistent with the relevant planning controls.

The court found that the applicant had demonstrated that the proposed development would not have a significant adverse impact on the amenity of the local neighbourhood and that it was consistent with the relevant planning controls. The court held that the applicant had taken reasonable steps to mitigate the potential adverse impacts of the proposed development, including implementing noise and light reduction measures. The court also found that the proposed development was consistent with the relevant planning controls, including the Cessnock City Council Local Environmental Plan 2012. The court held that the Council's decision to refuse development consent was unreasonable and that development consent should be granted subject to the conditions of consent in Annexure A.

Orders

Orders of the court

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted for the extension of trading hours to 24 hours, 7 days a week, for the service station and food and drink premises at 247 Wine Country Drive, Nulkaba, subject to the conditions of consent in Annexure A.

(3) The exhibits are returned, except for Exhibits A and 5.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Megaplay Properties Pty Ltd v Cessnock City Council [2021] NSWLEC 1712
Hearing dates:	6-7 October 2021
Date of orders:	23 November 2021
Decision date:	23 November 2021
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders that: (1) The appeal is upheld. (2) Development consent is granted for the extension of trading hours to 24 hours, 7 days a week, for the service station and food and drink premises at 247 Wine Country Drive, Nulkaba, subject to the conditions of consent in Annexure A. (3) The exhibits are returned, except for Exhibits A and 5.
Catchwords:	APPEAL – development application – extension of trading hours of service station and food and drink premises – 24-hour operation – acoustic impacts – sleep disturbance – character of the area
Legislation Cited:	Cessnock Local Environmental Plan 2011, cl 2.3 Environmental Planning and Assessment Act 1979, s 8.7 State Environmental Planning Policy (Infrastructure) 2007, cl 101 State Environmental Planning Policy No 55—Remediation of Land, cl 7 State Environmental Planning Policy (Koala Habitat Protection) 2020
Cases Cited:	BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 Fairfield City Council v N & S Olivieri P/L [2003] NSWCA 41 Jonah Pty Limited v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99
Texts Cited:	Australian Standards: AS 1158.3:2005 Lighting for roads and public spaces – Pedestrian Area (Category P) Lighting – Performance and design requirements Australian Standards: AS 4282:1997 Control of the obtrusive effects of outdoor lighting Cessnock Development Control Plan 2010 Department of Environment, Climate Change and Water NSW, NSW Road Noise Policy (March 2011) Environment Protection Authority NSW, Noise Policy for Industry (2017) Department of Environment, Climate Change and Water NSW, NSW Road Noise Policy (March 2011) Hunter Regional Plan 2036 Road and Maritime Services, Guide to Trip Generating Developments (2002)
Category:	Principal judgment
Parties:	Megaplay Properties Pty Ltd (Applicant) Cessnock City Council (Respondent)
Representation:	Counsel: T To (Applicant) J McKelvey (Respondent) Solicitors: Mills Oakley (Applicant) Sparke Helmore Lawyers (Respondent)
File Number(s):	2021/32316
Publication restriction:	No