Tunwish Pty Ltd v Port Stephens Council

[2011] NSWLEC 1237

Land and Environment Court

New South Wales

Medium Neutral Citation:	Tunwish Pty Ltd v Port Stephens Council [2011] NSWLEC 1237
Hearing dates:	1 July 2011
Decision date:	01 July 2011
Jurisdiction:	Class 1
Before:	Pearson C
Decision:	Appeal upheld
Catchwords:	Consent orders - development modification - hotel - trading hours
Legislation Cited:	Environmental Planning and Assessment Act 1979 Port Stephens Local Environmental Plan 2000
Category:	Principal judgment
Parties:	Tunwish Pty Limited (Applicant) Port Stephens Council (Respondent)
Representation:	Mr C Ireland (Applicant) Mr J Connors (Respondent) O'Sullivan Saddington Lawyers (Applicant) Harris Wheeler Lawyers (Respondent)
File Number(s):	10297 of 2011

EX TEMPORE Judgment

1. This is an appeal under s 97AA of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by the respondent Council of an application made under s 96(2) of the Act to modify a development consent for the Bull and Bush Hotel at 12 Ferodale Road, Medowie, Lot 1 DP 703734 (the hotel). The parties have reached agreement and are seeking consent orders from the Court.

1. The hotel has been operating under the terms of a development consent No 16-2003-577-1, granted by the Council on 12 August 2003. In 2009 the Court upheld an appeal and granted consent to a subsequent development application, DA 16-2008-57-1 for use of the premises as a place of public entertainment. As part of that separate approval, the original consent was modified in accordance with s 80A(5) of the Act.

1. The effect of that amendment was to bring the terms of the conditions under which the hotel has been operating into conformity. The result, in substance, was that the hotel was permitted to trade between 5am to 3am, Monday to Saturday and on Sunday between 5 am to 12 midnight, for a period of one year, that being the result of conditions 3 and 4 of the 2009 approval as a place of public entertainment, and in accordance with condition 13 of that consent, for a trial period of one year for the trading hours of the hotel.

1. The consent contained a provision in condition 15 that if a s 96 modification application or development application was lodged prior to 10 months after the date on which that consent was granted, the hotel would be permitted to continue to trade until that application was finally resolved from 5am to 12 midnight, Monday to Saturday and 5am to 10pm on Sunday.

1. The modification application No 16-2003-577-2 was made on 15 January 2010. The applicant sought to modify the trading hours of the hotel, to be 5am to 3am Monday to Saturday, and 5am to 12 midnight on Sunday. The application also proposed modifications of some of the other conditions of consent including, relevantly, a condition relating to a requirement for an independent audit of compliance with conditions.

1. The Council notified the modification application, and received two objections. The content of those objections is in evidence before the Court. One objection was made by the owner of a property identified as being land immediately adjoining the hotel complex, and that objection raised concerns about the proposed extended trading hours on the basis of damage to property and littering. The other objection was made by the owner of a BiLo store next door to the subject property, and raised concerns about the proposed extended trading hours in relation to graffiti, damage to property and other antisocial behaviour.

1. The contentions of the Council raised issues as to the proposed extended trading hours in terms of the social and economic impacts in the locality, suitability of the site, and the public interest. Included in those contentions was the contention that the applicant had not trialled the extended trading hours during the period for which they had been permitted.

1. The parties have reached agreement as to an amendment to the trading hours, and they are now in agreement that it is appropriate to amend the trading hours for the hotel to be Monday to Thursday, 7am to 12.30am, Friday and Saturday, 7am to 1.30am, and Sunday, 10am to 10pm. The parties are proposing consequent amendments to the conditions, including condition 47 that no patron be permitted entry to the premises after 1am and before 7am on any day; the deletion of the provisions relating to the trial period; and deletion of the condition requiring an independent audit of the conduct of the premises.

1. In considering whether it is appropriate to make the consent orders sought by the parties, the applicant has provided evidence as to the conduct of the independent audit of compliance in accordance with the conditions of the consent. Those audits were undertaken on 27 June 2009, 12 September 2009 and 27 November 2009. The person conducting that audit noted that:

"We did experience difficulty in choosing days when the venue exercises the conditions of their approval by providing entertainment as the venue does not regularly trade after midnight nor do they provide entertainment every weekend."

1. The applicant's submission is that the hotel trades according to demand, and that it has very rarely operated to the full extent of the extended trading hours permitted under the trial period. I note that the Council has not raised any concerns with the outcome of the compliance audit that is in evidence in these proceedings.

1. The Council submits that the amended trading hours, as agreed between the parties, are a significant limitation on the hours originally sought in the modification application, and meet the Council's contention relating to the adverse impacts of the extended trading hours, and also meet its contention that the applicant has not fully tested the extent of the trading hours permitted in the trial period.

1. The Council has informed the two objectors of the proposed agreed outcome and the responses of those objectors are in evidence. The substance of those responses is that the two objectors accept the outcome represented in the consent orders, and have agreed to the Council's recommendation that the orders be pursued.

1. I am satisfied that the contentions raised by the Council have been addressed, and that the objectors to the modification application have been notified and their views put before the Court. I am satisfied that it is appropriate to make the consent orders as sought by the parties. I note the parties' agreement that there is to be no order as to costs. The parties have provided a document that consolidates the conditions of approval, and I direct the parties to file an electronic copy of those conditions with appropriate annotations to indicate the conditions that have been added, amended or deleted by close of business, Friday 8 July 2011.

1. The orders of the Court are:

(1)   The appeal is upheld;

(2) Development consent DA 16-2003-577-1 is modified pursuant to s 96 of the Environmental Planning and Assessment Act 1979 in accordance with the conditions of consent annexed hereto and marked "A";

(3)   The exhibits are returned.

Linda Pearson

Commissioner of the Court

Decision last updated: 15 August 2011