Barrenjoey Boatshed Pty Ltd v Northern Beaches Council [2024] NSWLEC 1844

Land and Environment Court New South Wales

Medium Neutral Citation: Barrenjoey Boatshed Pty Ltd v Northern Beaches Council [2024] NSWLEC 1844 Hearing dates: Conciliation conference held on 27 September, 18 and 30 October, 3 and 19 December 2024 Date of orders: 24 December 2024 Decision date: 24 December 2024 Jurisdiction: Class 1 Before: Dixon SC Decision: The Court orders: (1) The appeal is upheld. (2) Modification Application MOD2023/0684 (as amended) for the extension of trading hours at 1191-1193 Barrenjoey Road, Palm Beach is approved subject to the conditions set out in Annexure A. Catchwords: APPEAL – modification application – extension of hours – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, s 4.55 Land and Environment Court Act 1979, ss 17, 34 Environmental Planning and Assessment Regulation 2021, ss 38, 98 Fisheries Management Act 1994, s 201 Texts Cited: Northern Beaches Community Participation Plan 2019 Category: Principal judgment Parties: Barrenjoey Boatshed Pty Ltd (Applicant) Northern Beaches Council (Respondent) Representation: Counsel: S Phillips (Applicant) C Gough (Solicitor)(Respondent)

Solicitors: Matthews Dalton Lawyers (Applicant) Storey & Gough (Respondent) File Number(s): 2024/116996 Publication restriction: Nil

JUDGMENT 1. On 15 December 2021 the Northern Beaches Planning Panel (the Panel) granted development consent to DA2021/0669 for the demolition and construction of a new restaurant (the Consent) at 1191 and 1193 Barrenjoey Road, Palm Beach, previously known as the Boat House, now called The Joey (the site). 2. The approved hours of operation of the restaurant are set out in Condition 96 of the Consent which provides as follows: "96. Hours of Operation The hours of operation outside of daylight saving are to be restricted to: • Monday to Saturday – 7.00am to 4.00pm • Sunday and Public Holidays – 7.00am to 4.00pm The hours of operation during daylight saving are to be restricted to: • Monday to Thursday – 7.00am to 4.00pm • Friday and Saturday – 7.00am to 10.00pm • Sunday – 7.00am to 4.00pm Upon expiration of the permitted hours, all service (and entertainment) shall immediately cease, no patrons shall be permitted entry and all customers on the premises shall be required to leave within the following 30 minutes. Reason: Information to ensure that amenity of the surrounding locality is maintained." 1. On 20 December 2024 the Applicant, and operator of the restaurant, made application under s 4.55(1A) of the Environmental Planning and Assessment Act 1979 (EPA Act) to the Council to modify the Consent to allow an extension of operating hours from 7am to 11pm Monday to Sunday inclusive (throughout the year) (Modification Application). 2. Despite a recommendation for approval the Northern Beaches Development Determination Panel (DDP) determined the Modification Application by way of refusal on 13 March 2024 . 3. On 28 March 2024 the Applicant appealed that decision to the Court. 4. On 27 September 2024 the Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties. I presided over the conciliation conference.