Randall Pty Ltd v Leichhardt Council - [2004] NSWLEC 277

Land and Environment Court

of New South Wales

CITATION: Randall Pty Ltd v Leichhardt Council [2004] NSWLEC 277

PARTIES:
APPLICANT
Randall Pty Ltd
RESPONDENT
Leichhardt Council

FILE NUMBER(S): 11265 of 2003

CORAM: Tuor C.

KEY ISSUES: Development Application :- Extend hotel to relocate gaming room
Planning principle - extension or intensification of use which may impact on residential amenity

LEGISLATION CITED: Leichhardt Local Environmental Plan 2000
Gaming Machines Act 2001

CASES CITED:

DATES OF HEARING: 20/02/2004, 02/04/2004, 10/05/2004 and 28/05/2004

EX TEMPORE
JUDGMENT DATE : 05/31/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr P Clay, Barrister
Solicitors
Moloney Lawyers
RESPONDENT
Mr P Jackson
Solicitors
Pike Pike & Fenwick

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

11265 of 2003

Tuor C

31 May 2004

RANDALL PTY LTD

Applicant

LEICHHARDT COUNCIL

Respondent

Extempore Judgment

Introduction

1 This an appeal against the refusal by Leichhardt Council (the council) of a development application to extend an exiting hotel, known as the Monkey Bar, at 255 Darling Street, Balmain, into the adjoining shop 1, 251- 253 Darling Street, Balmain.

The site and it context

2 The existing hotel (c1872) is located on the corner of Darling Street, Ford St and Hoffmans Lane, Balmain. The hotel has a ground floor bar, gaming room and restaurant with a courtyard and a two-storey manager’s residence at the rear. There is a function room on the first-floor. Shop 1, 251-253 Darling Street is currently under construction and is part of a two-storey retail and residential development.

3 The hotel and shop are in the eastern end of the Darling Street shopping centre, which contains a mix of retail and commercial uses. Development in the surrounding streets is predominantly residential.

Background and Proposal

4 The proposal is to extend the existing hotel into the ground floor of the adjoining building. The existing gaming and pool room will be converted to a lounge area and these facilities will be relocated to the new shop. The gross floor area of Shop 1 is 114.3sqm.

5 The development application was lodged on 4 June 2003 and was notified to adjoining residents. Four objections were received. Council’s consultant recommended approval of the application but Council refused it on 17 February 2004.

6 On 15 March 2003, I gave preliminary findings that the impact of the existing hotel had not been adequately assessed and that there was insufficient evidence before the Court to assess the claims of the residents.

7 In response, the applicant provided further evidence and amended plans. These plans resolved the issue of fire egress and compliance with the Building Code of Australia (BCA). The plans also provided details of the internal arrangement of the hotel, including the layout of the new gaming and pool room and the lounge area. The amended plans were re-notified to adjoining residents. Three objections were received, including two from people who previously objected.

Statutory framework

8 Under Leichhardt Local EnvironmentalPlan 2000 (LEP 2000) the site is within a business zone and a conservation…

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: [2004] NSWLEC 277
Decision Date: 05/31/2004

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Randall Pty Ltd sought an appeal against the Leichhardt Council’s refusal of a development application to extend the Monkey Bar Hotel, located at 255 Darling Street, Balmain, into the adjoining shop at 251-253 Darling Street, Balmain. The proposal involved converting the existing gaming and pool room into a lounge area and relocating these facilities into the new shop. The court was tasked with determining whether the proposed extension would have an adverse impact, particularly in terms of noise, on the amenity of nearby residents.

The key legal issues revolved around the principles governing the extension or intensification of a use that may impact residential amenity, as outlined in the Leichhardt Local Environmental Plan 2000 and the Gaming Machines Act 2001. The court had to assess whether the existing hotel’s operation was acceptable and whether the proposed extension would still maintain an acceptable impact on the residential amenity of nearby residents.

The Court, after considering the evidence, found that the existing operation of the Monkey Bar Hotel was in compliance with its approval and had an acceptable impact on residential amenity. The court was satisfied that the proposed extension, with the new gaming and pool room being relocated and the introduction of limits on the number of patrons, would not result in an increase in intensity of use or additional impact on the residential area. The measures proposed in the application would maintain the current arrangement and ensure the careful management of activities that could potentially disturb the adjoining residential area. Consequently, the court approved the application.

The final orders of the court were that the appeal was upheld, and the development application was granted subject to certain conditions detailed in Annexure “A”. The exhibits were returned, except for specific exhibits listed.

Orders