Tunwish Pty Limited v Port Stephens Council

[2009] NSWLEC 52

Land and Environment Court

of New South Wales

CITATION:	Tunwish Pty Limited v Port Stephens Council [2009] NSWLEC 52
PARTIES:	APPLICANT: Tunwish Pty Limited RESPONDENT: Port Stephens Council
FILE NUMBER(S):	10753 of 2008
CORAM:	Lloyd J
KEY ISSUES:	DEVELOPMENT APPLICATION :- hotel - place of public entertainment within hotel - conditions relating to hours of operation, RSA monitor, security personnel and courtesy bus service
DATES OF HEARING:	2 March 2009 and 3 March 2009
DATE OF JUDGMENT:	3 March 2009
EX TEMPORE JUDGMENT DATE:	3 March 2009
LEGAL REPRESENTATIVES:	APPLICANT: C R Ireland (barrister) SOLICITORS: O'Sullivan Saddington RESPONDENT: P W Larkin (barrister) SOLICITORS: Harris Wheeler

JUDGMENT:

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IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Lloyd J

Tuesday, 3 March 2009

LEC No. 10753 of 2008

TUNWISH PTY LIMITED v PORT STEPHENS COUNCIL [2009] NSWLEC 52

EX TEMPORE JUDGMENT

1 HIS HONOUR: The applicant, Tunwish Pty Limited, is the owner of the Bull & Bush Hotel at No. 37 Ferodale Road, Medowie. The hotel was built about twenty-six years ago. On 18 August 1980, the council granted development consent for the hotel subject to conditions. The conditions do not contain any conditions of consent limiting the hotel’s trading hours.

2 On 20 June 1988 the council granted development consent for extensions to the hotel, subject to conditions. Again, the council did not limit the trading hours of the hotel by way of any condition. On 12 August 2003, the council granted a further development consent for alterations and additions to the hotel subject to conditions. None of those conditions expressly limit the trading hours of the hotel.

3 On 22 July 2008, the council granted development consent for a place of public entertainment within the hotel. For the first time a condition - condition 4 - was expressly imposed limiting the hours of operation as follows: Monday and Tuesday, 10:00 am to 10:00 pm; Wednesday to Saturday, 10:00 am to 12 midnight; Sunday, 10:00 am to 9:00 pm. The licence granted by the Licensing Court allows the hotel’s trading hours to be 5:00 am to 3:00 am the following day, Mondays to Saturdays, and 5:00 am to midnight on Sunday.

4 The applicant now appeals against the imposition of condition 4 of the development consent granted by the council granted on 22 July 2008. The applicant seeks to have the same trading hours allowed by the Licensing Court to apply to its consent for a place of public entertainment. The council contends, however, that in granting the development consent to the alterations and additions in 2003, it imposed a condition which has the effect of limiting the trading hours of the hotel. Condition 3 of that consent states:

The development shall take place in accordance with the plans and documentation submitted with the application.

5 The documentation submitted with that application included a statement of environmental effects, paragraph 1.3 of which states:

1.3 Hours of operation. The hours of operation of the hotel are currently 10:00 am to 10:00 pm Mondays and Tuesdays, 10:00 am to 12 midnight Wednesdays to Saturdays inclusive, and 10:00 am to 9:00 pm on Sundays.

6 The parties have now substantially resolved the appeal. The council has agreed to allow the extended trading hours on a one year trial basis, but in so doing the council wishes to impose additional conditions not imposed on the grant of the consent which it issued on 22 July 2008. The additional conditions which the council now seeks to impose relate to the details of the operation of the hotel, generally but not strictly in accordance with the security plan of management. The parties are largely in agreement as to what conditions should apply. There are, however, three areas where there has been no agreement.

7 The council seeks to impose conditions relating to the RSA monitor and the number of security persons when entertainment is provided at the premises, or after 8:00 pm. The applicant, however, is not prepared to agree to those additional conditions. The second area of disagreement between the parties as to the number of security personnel who should be present. There is a third area of disagreement in relation to whether one or two fourteen-seat courtesy buses should be provided.

8 The court has evidence from Mr George Smith, a town planner, on behalf of the applicant and Mr George Askew who I understand is a security expert or hotel management expert also on behalf of the applicant. The court also has evidence from Ms Ellen Davis-Meehan on behalf of the council. Both Mr Smith and Ms Davis-Meehan have given evidence before me.

9 As to the first area of disagreement, whether the conditions relating to the RSA monitor and security persons should be imposed only when entertainment is provided or, as the council seeks, when entertainment is provided and after 8:00 pm, the court is of the opinion that these provisions should only apply when entertainment is provided. That is the application for which consent is sought. That is the application with which the court is concerned. The court is reinforced in this view by the fact that the consent is only for a trial period. That is to say, the proposed condition should apply only when entertainment is provided and after 8:00 pm at the premises.

10 In relation to the second area of dispute - the number of security personnel - the court has been informed that the industry standard is one security person per 100 persons in the premises. The court is not persuaded that the industry standard is insufficient and that is the standard that the court will apply. The council, I note, has asked for an additional security person where more than 200 persons are present but I am not persuaded that the industry standard is inadequate in that respect.

11 The third area of the disagreement is the courtesy bus service. There is at present, I understand, a courtesy bus - a fourteen-seat courtesy bus which is provided by the operator of the hotel. The council, as I understand it, requires two fourteen-seat courtesy buses. The courtesy bus, I might note, is provided at all times and will be provided at all times, not only when entertainment is provided. Again, having regard to the fact that this is a trial period and the operation can be monitored during the trial period of twelve months, one courtesy bus should be sufficient. If it proves to be insufficient then there will be an opportunity to review the condition.

I hereby certify that the preceding 11 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

Associate

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