Ryan v Sutherland Shire Council - [2006] NSWLEC 142

Land and Environment Court

of New South Wales

CITATION: Ryan v Sutherland Shire Council [2006] NSWLEC 142

PARTIES:
APPLICANT
J Ryan
RESPONDENT
Sutherland Shire Council

FILE NUMBER(S): 11091 of 2005

CORAM: Moore C

KEY ISSUES: Development Consent :-
Modification of consent
Licensed premises
Extension of hours
Social impact
.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 96

CASES CITED: Randall Pty Ltd v Leichhardt Council [2004] NSWLEC 277;
Vinson v Randwick Council [2005] NSWLEC 142;
.

DATES OF HEARING: 23 and 24 March 2006

DATE OF JUDGMENT:
03/30/2006

LEGAL REPRESENTATIVES:
APPLICANT
Mr D Wilson, barrister
INSTRUCTED BY
Mr J Ryan, solicitor
RESPONDENT
Mr A Pickles, barrister
INSTRUCTED BY
Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

30 March 2006

05/11091 J Ryan v Sutherland Shire Council
JUDGMENT

Introduction

1 COMMISSIONER: This is an appeal pursuant to s 96 of the Environmental Planning and Assessment Act 1979 against the refusal by Sutherland Shire Council (the council) of an application on behalf of the management of the Gymea Hotel (the hotel) to vary the presently approved trading hours of the hotel.

2 The present approved hours are set out in Condition 66 of Development Consent No. 03/0661 which relevantly states:

... the use of the premises shall be restricted to between the hours of 5.00 am, and 12.00 midnight Mondays to Saturdays, inclusive, and between the hours of 10.00 am and 10.00 pm, Sundays

3 The modification application seeks to change this to read:

... the use of the premises shall be restricted to between the hours of 5.00 am, and 5.00 am Mondays to Saturdays, inclusive, and between the hours of 10.00 am and 12.00 am, Sundays

4 Council staff refused the modification application, under delegation, on 3 August 2005. The reasons for this decision were given as:

The proposed extension of hours of operation is likely to result in adverse impacts on the amenity of the neighbourhood by reason of increased antisocial behaviour, increased crime incidences and increased noise.

5 The submission by Mr Pickles, counsel for the council, in opposing the proposed modification, was not that an application of this kind of might, at some future time, be capable of approval, on some form of trial basis, but that it was premature to do so now. I note that the hotel management, itself, now only proposes that the extended hours be permitted on a trial basis.

The hotel

6 The hotel site is situated at 41 - 45 Gymea Bay Road, Gymea (Lot B DP 367479). The previous hotel building located on the allotment was destroyed by fire in September 2004 and a new hotel building is presently being erected. This is expected to commence trading toward the middle of 2006.

7 The hotel was located on an irregularly shaped allotment of 5,200 sq m with a frontage of ~ 47 m to Gymea Bay…

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: [2006] NSWLEC 142
Decision Date: 03/30/2006

CaseChat Overview and Summary

In the case of Ryan v Sutherland Shire Council, the applicant, Mr. Ryan, sought to modify the trading hours of the Gymea Hotel, which was under construction at the time of the application. The council refused the modification application, citing potential adverse impacts on the neighborhood's amenity, increased anti-social behavior, crime incidences, and noise. The applicant appealed the decision, arguing that the proposed changes would not necessarily lead to the aforementioned issues. The Land and Environment Court of New South Wales was tasked with deciding on the appeal and determining whether the proposed modifications to the hotel's trading hours should be approved.

The court examined the history of the hotel's management, the adverse impacts of its past trading hours, and the proposed measures to address those impacts. The court found that the previous management of the hotel had indeed resulted in anti-social behavior in the surrounding area, and that such behavior had decreased when the hotel was not trading. However, the court was not convinced that the proposed measures, including a "lockdown" policy and a revised Plan of Management, would be sufficient to address the issues. The court concluded that it was premature to approve the modification application before the hotel had recommenced trading and implemented an appropriate management regime.

The court ultimately refused the appeal, determining that the application to modify the trading hours of the Gymea Hotel was refused. The court also returned the exhibits submitted during the proceedings. The decision highlights the importance of considering the history of a premises' management and the potential social impacts of changes to trading hours when assessing applications for modification.

Orders