Ryedales Tavern Pty Ltd v Council of the City of Ryde

[2024] NSWLEC 1251

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ryedales Tavern Pty Ltd v Council of the City of Ryde [2024] NSWLEC 1251

Hearing dates:

Conciliation conference on 14 May 2024

Date of orders:

14 May 2024

Decision date:

14 May 2024

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent LDA 1999/0805 for the extension of trading hours of the Ryedales Tavern, 18-26 West Parade, West Ryde, is modified in the terms in Annexure A.

(3) Development consent LDA 1999/0805, as modified by the Court pursuant to Order (2), is in the terms of Annexure B.

Catchwords:

APPEAL – modification application – permanent extension of trading hours sought – temporary period previously granted – acoustic issues resolved – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9

Land and Environment Court Act 1979, s 34

Category:

Principal judgment

Parties:

Ryedales Tavern Pty Ltd (Applicant)
Council of the City of Ryde (Respondent)

Representation:

Counsel:
C Ireland (Applicant)
M Chillari (Solicitor) (Respondent)

Solicitors:
Hatzis Cusack Lawyers (Applicant)
Council of the City of Ryde (Respondent)

File Number(s):

2023/127516

Publication restriction:

Nil

Judgment

1. COMMISSIONER: Ryedales Tavern, in West Ryde, is seeking to extend its trading hours to 3am Monday to Saturday, and to 12 midnight on Sundays. Whilst it currently operates these extended trading hours, it does so on the basis of a trial period. The trial period was granted through modifications to the development consent that applies to the site (LDA 1999/0805), the first of which was granted on 28 June 2018 and allowed a period of 12 months for the operation of the extended hours, and the second of which was on 4 January 2021, which allowed a period of 24 months. The present appeal concerns a modification application lodged with the Council on 17 January 2023 to amend condition 2 of the development consent to remove the time limitation on the extended trading hours and allow the premises to operate in the extended trading hours on a permanent, ongoing basis. Following the expiry of the period after which a modification application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the modification application pursuant to s 4.55(2) of the EPA Act. The final orders in this appeal, outlined in [10] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. Following an adjournment of the hearing of the appeal, the Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 14 May 2024. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The signed agreement was provided by the parties on the same date.

4. The decision agreed upon is for the grant of the modification application subject to conditions, pursuant to s 4.55(2) of the EPA Act. The modification replaces the existing wording of condition 2, to remove the time limitation on the extended trading hours and to delete the existing trial period requirements. The modification also deletes conditions CC, DD, EE and FF from the consent, which pertain only to the trial period. Further, in the joint acoustic report filed on 12 April 2024, the acoustic experts agree that the extended hours will have acceptable impacts subject to the imposition of agreed additional noise controls and measures. The modification incorporates these controls and measures in conditions on the grant of the present modification application, and requires compliance with an updated Plan of Management, both of which will also form conditions on the modified consent. The modification also makes a change to condition AA to correct an error in the acoustic criterion, which brings the condition into line with standard acoustic criteria that apply to licensed premises.

5. The signed agreement is supported by a Jurisdictional Statement. Based on the Jurisdictional Statement and the documents that accompany the Class 1 Application, I have considered such of the matters referred to in s 4.15(1) of the EPA Act that are of relevance to the development the subject of the application, consistent with s 4.55(3) of the EPA Act.

6. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted, for the reasons that the modification relates only to a change in the trading hours for the operation of the development for which consent was originally granted in LDA 1999/0805, and does not alter any essential or material element of the development the subject of that consent.

7. The modification application was notified by the respondent between 13 February 2023 and 3 March 2023 in accordance with s 4.55(2)(c) of the EPA Act. In response to the notification of the application, eight submissions were received. A further three were received in advance of an earlier conciliation conference on 10 October 2023. I have considered the issues raised in all the submissions.

8. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

9. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the modification application against the discretionary matters that arise pursuant to an assessment under ss 4.55(3) and 4.15(1) of the EPA Act.

10. The Court orders that:

1. The appeal is upheld.

2. Development consent LDA 1999/0805 for the extension of trading hours of the Ryedales Tavern, 18-26 West Parade, West Ryde, is modified in the terms in Annexure A.

3. Development consent LDA 1999/0805, as modified by the Court pursuant to Order (2), is in the terms of Annexure B.

J Gray

Commissioner of the Court

127516.23 Annexure A

127516.23 Annexure B

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