Thomas v Maitland City Council

[2022] NSWLEC 1231

Land and Environment Court

New South Wales

Medium Neutral Citation:

Thomas v Maitland City Council [2022] NSWLEC 1231

Hearing dates:

Conciliation conference on 31 March 2022

Date of orders:

3 May 2022

Decision date:

03 May 2022

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to development application DA2021/1033 for an extension of the trading hours of the premises known as The George Tavern, 5 Molly Morgan Drive, East Maitland from 1.30am to 4.00pm Monday to Saturday (the following day) subject to the conditions of consent set out in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – extension of trading hours of the George Tavern – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.11

Land and Environment Court Act 1979, s 34

Maitland Local Environmental Plan 2011

Texts Cited:

Maitland Development Control Plan 2011

Category:

Principal judgment

Parties:

Chris Thomas (Applicant)
Maitland City Council (Respondent)

Representation:

Counsel:
C Ireland (Applicant)
J Griffiths (Solicitor) (Respondent)

Solicitors:
Hatzis Cusack Lawyers (Applicant)
Moray & Agnew Lawyers (Respondent)

File Number(s):

2021/337238

Judgment

1. These proceedings are an appeal made pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against Maitland City Council’s deemed refusal of development application DA2021/1033 (DA) for the extension of the trading hours of The George Hotel (also known as “The George Tavern”) at 5 Molly Morgan Drive, East Maitland (site).

2. The hotel currently operates from 9.00am until 1.30am (the following day) Monday to Saturday, and 10.00am until 12.00 midnight on Sundays, under a modified development consent (DA/2020/520.1). The DA proposes extending the trading hours on Monday to Saturday from 1.30am to 4.00am (the following day) (proposed development).

3. In an effort to resolve the dispute I facilitated a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties on 31 March 2022. At the conference the parties reached agreement as to the terms of a decision that would be acceptable to them. The decision involves the Court upholding the appeal and granting development consent to the DA subject to the parties agreed conditions of consent.

4. The decision, as agreed, authorises the extended trading of the hotel but restricts it to the area denoted on the approved plans referred to in the conditions of consent (Annexure A). The decision also requires that during extended trading the hotel operate in accordance with the nominated Plan of Management which specifies, amongst other things, the minimum staff and security personal and the procedures to be followed at the premise to ensure the amenity of neighbours including the implementation of a lighting plan and the use of the CCTV measures outlined in the Crime Prevention Through Environmental Design (CPTED) Report and acoustic verification.

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the Court could have made that decision in the proper exercise of its functions.

6. In this case, the parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA on a conditional basis. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties explained how the jurisdictional prerequisites have been satisfied based on the evidence as summarised below.

7. The application is made pursuant to s 8.11 of the EPA Act and subject to the provisions of the Maitland Local Environmental Plan 2011 (LEP) and Maitland Development Control Plan 2011 (DCP).

8. The site is located in the B3 Commercial Core zone under the LEP, and the use of the site as a hotel is classified as commercial use which is permissible with consent within that zone. And, as the application does not propose construction works the building remains compliant in terms of height and floor space. Furthermore, the Council accepts that the DA is satisfactory in respect of the relevant provisions of the DCP. In that regard, the Council accepts that the CPTED Report provided which addresses the requirements of C12 (Crime Prevention Through Environmental Design) is adequate. The Council is also satisfied that the adverse impacts of the proposed development raised by the objectors including the NSW Police have been satisfactorily addressed by the Plan of Management and other proposed conditions of consent.

9. Accordingly, as the evidence supports a finding that the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I now make the following orders:

1. The appeal is upheld.

2. Development consent is granted to development application DA2021/1033 for an extension of the trading hours of the premises known as The George Tavern, 5 Molly Morgan Drive, East Maitland from 1.30am to 4.00pm Monday to Saturday (the following day) subject to the conditions of consent set out in Annexure A.

………………………..

S Dixon

Senior Commissioner of the Court

Annexure A (162237, pdf)

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