Australian Leisure and Hospitality v Manly Council (No 3) [2009] NSWLEC 1180

Land and Environment Court of New South Wales

CITATION : Australian Leisure and Hospitality v Manly Council (No 3) [2009] NSWLEC 1180

APPLICANT Australian Leisure and Hospitality Pty Limited PARTIES : RESPONDENT Manly Council

FILE NUMBER(S) : 11098 of 2004

CORAM: Brown C

KEY ISSUES: DEVELOPMENT APPLICATION :- modification of condition of development consent - trial period for outdoor public dining - application under s 125 Roads Act - discretion to review merits of original decision and impose additional conditions

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Roads Act 1993

CASES CITED: Australian Leisure and Hospitality Pty Limited v Manly Council [2005] NSWLEC 316 Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472

DATES OF HEARING: 17 April 2009, submissions 6 May 2009

DATE OF JUDGMENT: 10 June 2009

APPLICANT Mr M Wright, barrister SOLICITORS Deacons LEGAL REPRESENTATIVES: RESPONDENT Mrs L Finn, solicitor SOLICITORS HWL Ebsworth

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Brown C

10 June 2009

11098 of 2004 Australian Leisure and Hospitality Pty Limited v Manly Council

JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Manly Council of an application to modify condition 50 of Development Consent 387/03 granted by the Land and Environment Court on 24 June 2005 (Australian Leisure and Hospitality Pty Limited v Manly Council [2005] NSWLEC 316) for alterations and additions to the New Brighton Hotel at 71 The Corso, Manly. 2 Condition 50 states: Use of Public Areas 50 (i) Consent is granted for the use of public areas adjoining or adjacent to the subject premises for outdoor seating and dining, in accordance with SK01. (ii) The use of the public areas referred to in condition 50(i) shall be limited to a trial period of 12 months from the date of the commencement of the use. To continue the use after the trial period, a further development application must be made within the trial period. 3 The issues in the appeal are whether is it appropriate to reconsider planning issues as part of the consideration of an application under s 125 of the Roads Act 1993 and if so, has there been sufficient change to the planning regime to reconsider any planning issues, including the imposition of new conditions.