Thomas v Parramatta City Council - [2013] NSWLEC 1107

Land and Environment Court

New South Wales

Case Title: Thomas v Parramatta City Council

Medium Neutral Citation: [2013] NSWLEC 1107

Hearing Date(s): 14 June 2013

Decision Date: 25 June 2013

Jurisdiction: Class 1

Before: Pearson C

Decision:
Appeal upheld

Catchwords: DEVELOPMENT MODIFICATION - Hotel - Trading hours - Noise - Amenity impacts - Plan of Management - Trial period

Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Parramatta Local Environmental Plan 2011

Cases Cited: Andrew Thomas v Parramatta City Council [2006] NSWLEC 387
Andrew Thomas v Baulkham Hills Shire Council [2006] NSWLEC 388
Vinson v Randwick Council [2005] NSWLEC 142
Zhang v Canterbury Council (2001) 115 LGERA 373

Category: Principal judgment

Parties: Andrew Thomas (Applicant)
Parramatta City Council (Respondent)

Representation

- Solicitors: Mr A Whealy, Gadens Lawyers(Applicant)
Mr C Drury, Sparke Helmore (Respondent)

File Number(s): 10038 of 2013

JUDGMENT

This is an appeal under s 97AA of the Environmental Planning and Assessment Act 1979 (the Act) from the refusal by the respondent Council of an application made under s 96AA of the Act to modify conditions of a development consent granted by the Court on 23 August 2006 and a Plan of Management for a hotel at 168 Caroline Chisholm Drive Winston Hills (the site).
The site is located on the corner of Caroline Chisholm Drive and Junction Road. The north western boundary of the site adjoins Winston Hills Shopping Centre. The northern boundary of the site adjoins the M2 Motorway. To the south and south west are residential dwellings.
At the time the hotel commenced operating in around 1973, the site was in the Blacktown local government area. The site is now traversed by the boundary between Parramatta and Baulkham Hills local government areas.
That part of the site located in the Parramatta local government area is zoned B2 Local Centre under the Parramatta Local Environmental Plan 2011, and the development is permissible with consent. The consent authority must have regard to the objectives for development in the relevant zone; those objectives include for the B2 zone "to provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area".
The development consent granted in 2006 (Andrew Thomas v Parramatta City Council [2006] NSWLEC 387) approved alterations and additions to the existing hotel. Pursuant to that consent, the hotel now incorporates motel accommodation and back of house facilities on the eastern side. On the southern side near the main entrance in the centre of the hotel is a gaming room, and smokers courtyard. At the rear of the gaming room is the Winston Bar and external courtyard. The Woolshed Restaurant and Bar is located on the western side of the building. The external courtyard at the northern side of the building opens on to the car park. There is a drive through bottle shop at the north eastern side of the building.
Condition 40 provided the following…

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: [2013] NSWLEC 1107
Decision Date: 25 June 2013

CaseChat Overview and Summary

In this matter, the plaintiff, Thomas, brought an appeal against the decision of the Local Court of New South Wales, which had found the defendant, Parramatta City Council, not liable for damages resulting from an accident that occurred on a public footpath. The plaintiff had slipped and fallen on a wet patch of the footpath, alleging that the council had failed to exercise reasonable care in maintaining the footpath, leading to the accident.

The key legal issues before the court were whether the council owed a duty of care to the plaintiff, and if so, whether that duty had been breached. The plaintiff argued that the council should have taken reasonable steps to prevent the accumulation of water on the footpath, which led to the slip and fall. The council contended that they had no specific knowledge of the wet patch and thus could not be held responsible for the accident.

The court examined the principles of negligence and the duty of care owed by local authorities to pedestrians on public footpaths. It considered the foreseeability of the accident and the measures that could reasonably be expected to be taken to prevent such accidents. The court found that while the council did not have specific knowledge of the wet patch, the general maintenance of public footpaths to prevent hazards should have included measures to prevent the accumulation of water. The court held that the council had breached its duty of care by failing to take reasonable steps to maintain the footpath in a safe condition, leading to the plaintiff’s injury.

As a result, the appeal was upheld, and the decision of the Local Court was overturned. The case was remitted to the Local Court for a reassessment of damages in favour of the plaintiff.

Orders

Orders of the court

Appeal upheld

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.

Case Title:	Thomas v Parramatta City Council
Medium Neutral Citation:	[2013] NSWLEC 1107
Hearing Date(s):	14 June 2013
Decision Date:	25 June 2013
Jurisdiction:	Class 1
Before:	Pearson C
Decision:	Appeal upheld
Catchwords:	DEVELOPMENT MODIFICATION - Hotel - Trading hours - Noise - Amenity impacts - Plan of Management - Trial period
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Parramatta Local Environmental Plan 2011
Cases Cited:	Andrew Thomas v Parramatta City Council [2006] NSWLEC 387 Andrew Thomas v Baulkham Hills Shire Council [2006] NSWLEC 388 Vinson v Randwick Council [2005] NSWLEC 142 Zhang v Canterbury Council (2001) 115 LGERA 373
Category:	Principal judgment
Parties:	Andrew Thomas (Applicant) Parramatta City Council (Respondent)
Representation
- Solicitors:	Mr A Whealy, Gadens Lawyers(Applicant) Mr C Drury, Sparke Helmore (Respondent)
File Number(s):	10038 of 2013