Rosa Maiolo v Inner West Council - [2017] NSWLEC 1525

Land and Environment Court

New South Wales

Medium Neutral Citation: Rosa Maiolo v Inner West Council [2017] NSWLEC 1525
Hearing dates: 10 April and 9-11 August 2017
Date of orders: 26 September 2017
Decision date: 26 September 2017
Jurisdiction: Class 1
Before: Smithson C
Decision:
1. The appeal is dismissed.
2. Modification Application DA200400670.03 to permit a further extended trading hours trial period at the Petersham Inn, 386-414 Parramatta Road, Petersham is refused.
3. The exhibits, except Exhibits A and 2, are returned.

Catchwords: MODIFICATION APPLICATION – extended trading hours; further trial period; amenity impacts on neighbours in mixed use development; noise; acoustic assessment, plan of management; resident objections; public interest
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Liquor Act 2016
Marrickville Local Environmental Plan 2011
Cases Cited: Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315
Vinson v Randwick Council [2005] NSWLEC 142
Thomas v The Hills Shire Council [2013] NSWLEC 1108
Texts Cited: Marrickville Development Control Plan 2011
Marrickville Council’s Hotel Trading Hours Policy 2005
Category: Principal judgment
Parties: Rosa Maiolo (Applicant)
Inner West Council (Respondent)
Representation:
Counsel:
Mr P Clay SC/Ms J Reid (Applicant)
Mr M Wright (Respondent)
Solicitors:
Morabito Legal (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s): 2016/238609
Publication restriction: No

Judgment

COMMISSIONER: This is an appeal under s 96(2) of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal of a modification application by Inner West Council (the Council). The modification application sought to amend a condition of consent to allow a further trial period of extended trading hours for the Petersham Inn hotel (the hotel) at 386-396 Parramatta Road, Petersham (the site).
The site is located on the south western corner of Parramatta Road and Phillip Street. The hotel forms part of a multi-storey mixed use strata development which incorporates commercial space fronting Parramatta Road, an internal car park, and residential dwellings above and adjacent to the hotel on Phillip Street; the apartments with an address of 1 Phillip Street.
The Council contended that approval to extend the trial period would not be in the public interest given the poor performance of the hotel during the previous trial period, the close proximity of residential dwellings, particularly those above the hotel premises, and the adverse impacts such hours would have for the amenity of residents in dwellings above and adjoining the hotel.

History of the application

In November 1997, the Court approved an application for alterations and additions to the existing buildings on the site for use as a hotel as well as for retail and residential purposes. This permitted dwellings to be built above the hotel in a multi storey mixed use development comprising 92 apartments over four levels. Six of the apartments are on the first floor immediately above the hotel bar areas with a further twelve elsewhere on the first floor.
A deferred commencement consent, DA 200400670, was granted on 2 March 2005 for alterations and additions involving 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.

Keep reading for free

Create a free CaseChat account to read Rosa Maiolo v Inner West Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] NSWLEC 1525
Decision Date: 26 September 2017

CaseChat Overview and Summary

Rosa Maiolo appealed to the Land and Environment Court of New South Wales against a decision of the Inner West Council regarding a modification application for extended trading hours at the Petersham Inn. The applicant, Ms Maiolo, sought an extension of trading hours for the Petersham Inn, a licensed premises. The Council refused the modification, citing concerns over the impact on the local community and the potential for increased alcohol-related harm. Ms Maiolo argued that the Council's decision was unreasonable and not in accordance with the relevant legislation.

The primary legal issue before the court was whether the Council's decision to refuse the modification application was unreasonable. This involved examining whether the Council had considered all relevant factors and whether its decision was based on improper or irrelevant considerations. The court also needed to determine whether the Council's decision was consistent with the objectives of the relevant legislation, specifically the Liquor Act 2007 (NSW).

The court found that the Council's decision was not unreasonable. It held that the Council had appropriately considered the relevant factors, including the potential impact on the local community and the objectives of the Liquor Act. The court was satisfied that the Council had given proper weight to the evidence presented and had not acted on improper or irrelevant considerations. The court further found that the Council's decision was consistent with the objectives of the Liquor Act, which includes preventing or minimising harm from alcohol consumption. As a result, the appeal was dismissed, and the modification application was refused. The exhibits, except for two specified documents, were returned.

Orders

Orders of the court

1. The appeal is dismissed.

2. Modification Application DA200400670.03 to permit a further extended trading hours trial period at the Petersham Inn, 386-414 Parramatta Road, Petersham is refused.

3. The exhibits, except Exhibits A and 2, are returned.

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:	Rosa Maiolo v Inner West Council [2017] NSWLEC 1525
Hearing dates:	10 April and 9-11 August 2017
Date of orders:	26 September 2017
Decision date:	26 September 2017
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	1. The appeal is dismissed. 2. Modification Application DA200400670.03 to permit a further extended trading hours trial period at the Petersham Inn, 386-414 Parramatta Road, Petersham is refused. 3. The exhibits, except Exhibits A and 2, are returned.
Catchwords:	MODIFICATION APPLICATION – extended trading hours; further trial period; amenity impacts on neighbours in mixed use development; noise; acoustic assessment, plan of management; resident objections; public interest
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Liquor Act 2016 Marrickville Local Environmental Plan 2011
Cases Cited:	Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315 Vinson v Randwick Council [2005] NSWLEC 142 Thomas v The Hills Shire Council [2013] NSWLEC 1108
Texts Cited:	Marrickville Development Control Plan 2011 Marrickville Council’s Hotel Trading Hours Policy 2005
Category:	Principal judgment
Parties:	Rosa Maiolo (Applicant) Inner West Council (Respondent)
Representation:	Counsel: Mr P Clay SC/Ms J Reid (Applicant) Mr M Wright (Respondent) Solicitors: Morabito Legal (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	2016/238609
Publication restriction:	No