Land and Environment Court of New South Wales CITATION : Reserve Hotels Pty Limited v Council of the City of Sydney [2010] NSWLEC 1135 APPLICANT Reserve Hotels Pty Limited PARTIES : RESPONDENT Council of the City of Sydney FILE NUMBER(S) : 10121 of 2010 CORAM: Tuor C KEY ISSUES: DEVELOPMENT CONSENT :- s 96 application, amend conditions of consent continuation of extended hours after a trial period until application determined by the Court , on appeal. Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Land and Environment Court Act 1979 Late Night Trading Development Control Plan 2007 DATES OF HEARING: 1 June 2010 EX TEMPORE JUDGMENT DATE : 1 June 2010 APPLICANT Mr B Bulford, solicitor of Bruce Stewart Dimarco LEGAL REPRESENTATIVES: RESPONDENT Ms K Morrin, solicitor of the Council of the City of Sydney JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 1 June 2010 10121 of 2010 Reserve Hotels Pty Limited v Council of the City of Sydney JUDGMENT 1 This is an appeal against conditions imposed by the City of Sydney Council (council) on an application under s 96 of the Environmental Planning and Assessment Act 1979 (EPA Act) to modify development consent (D/2005/2121), for refurbishment and use of 661-663 George Street, Haymarket (the site) as a pub, bar, nightclub, bistro and gaming facility. 2 The site, its locality, the history of the application and the planning controls are in the Statement of Facts and Contentions filed by the applicant and the Council. 3 The development consent has been modified a number of times and the current s 96 application sought approval to amend a number of operational conditions and was approved, in part, on 11 November 2009. 4 A conciliation conference under s34 of the Land and Environment Court Act 1979 (LEC Act) was held on site on 15 April 2010. The conference was adjourned for further information until 1 June 2010. The further information has resolved most of the conditions in dispute between the parties. However, the parties were unable to reach agreement on condition 22(d) and the s 34 conciliation conference was terminated. The parties agreed to my disposing of the matter under s 34(4)(b)(i). No expert evidence was provided. 5 Condition 22 provides: The hours of operation are regulated as follows: (a) The hours of operation must be restricted to between 8:00am and 12 midnight, 7 days a week. (b) Notwithstanding (a) above the use may operate between 12:00 midnight and 2:00am the following day, 7 days a week, for a trial period of 1 year from the date of granting the Occupation Certificate. Section 96(1) modified 21/10/2008 (c) A further application may be lodged to continue the trading hours outlined in (b) above before the end of the trial period. Council's consideration of a proposed continuation and/or extension of the hours permitted by the trial will be based on, among other things, the performance of the operator in relation to the compliance with development consent conditions, any substantiated complaints received and any views expressed by the Police. 6 The applicant has requested the following amendment to Condition 22: (d) If a further application is lodged before the end of the trial period to continue those hours outlined in (b) above, then the premises may continue to trade those hours until the Council, or the Land and Environment Court on appeal, has determined that application, provide that: (i) Any appeal against a refusal by the Council is lodged within 28 days of service of the Notice of Determination; and (ii) The appeal is prosecuted by the Applicant with diligence. 7 The council submits that the trial period should continue only until the council, not the Court, determines an application for an extension. Council submits that the applicant's version of 22(d) is unacceptable for a number of reasons including: · It is not consistent with cl 2.7 of the Late Night Trading Development Control Plan 2007 (DCP 2007) which allows an application to renew the extended hours to be lodged within 30 days of the expiry of the trial period and the extended hours to continue for "a period of 'grace' from the termination of the trial period until the new application has been determined". · The proposal does not meet the aims of DCP 2007 in cl 2.1, which states that extended hours are a privilege. · Council would approve further extended trading hours only where a trial period has demonstrated that there has been good management and compliance with the Plan of Management as required by cl 3.1 of DCP 2007. · To allow extended trading hours to continue until the Court has determined an appeal is uncertain and could take a considerable period of time. 8 The applicant submits that the proposal is consistent with DCP 2007 as it enables the trial period to continue until a final decision is made by the Court on appeal. Findings 9 The main aim of DCP 2007 is: ….to assist in the management of the impacts of late night trading premises on the sites and neighbourhoods in which they are located, and in particular, protect the amenity of residential properties. 10 To achieve this aim, the DCP permits an extension of trading hours, beyond the base hours of 12 midnight, for a trial period. Prior to the conclusion of the trial a further application may be made to extend the trial period. 11 The key question before the Court is whether the extended hours should be able to continue until a determination of such an application is made by the council or by the Court on appeal. 12 Council's principal concern appears to be that a determination by the Court may permit the trading hours to continue for an uncertain and potentially lengthy period of time. Therefore extending any unsatisfactory impacts. 13 DCP 2007 already allows the extended trading hours to continue for a period of 'grace', until council determines the application. Although it is not clear what this period of 'grace' exactly means and the time period for a determination by council is also uncertain. Further, DCP 2007 allows the application to be lodged up to 30 days after the trial period has concluded. 14 Provided an appeal is lodged within a strictly limited period after council's determination of the application, it is not unreasonable or uncertain that the extended hours should continue until the Court makes a final determination. The Court would need to consider the operations of the hotel and the requirements of DCP 2007 in making its decision. 15 The council clearly has the right during the trial period, whether within the 12 months or while the application is being assessed, to take action for any non-compliance with conditions of approval or Plan of Management. 16 I therefore accept the applicant's version of Condition 22(d). However, any appeal is to be lodged within 7 days of council's determination of an application to continue the extended trading hours. Orders 17 The order of Court are therefore: 1. The appeal is upheld. 2. The application under s96 of the Environmental Planning and Assessment Act 1979 to modify development consent (D/2005/2121) at 661-633 George Street, Haymarket is approved subject to the conditions in Annexure A. 3. The exhibits may be returned. ___________________ Annelise Tuor Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.