Thomas v The Hills Shire Council [2013] NSWLEC 1108

Thomas v The Hills Shire Council [2013] NSWLEC 1108

The Court approved the modification because, although there was evidence of past adverse impacts on the locality through anti-social behaviour and noise, the proposed conditions and revised Plan of Management imposed substantially stronger controls for the extended hours and for the hotel as a whole, including noise works, security, CCTV, patron management, complaints procedures and community liaison. A 12 month trial period was appropriate to test whether those controls were effective, with adverse effects being reversible by return to existing approved hours or by adjustments to management or acoustic measures.

Jurisdiction
Australia
Judgment Date
25 June 2013
Procedural Posture
Class 1 Appeal Under S 97 AA of the Environmental Planning and Assessment Act 1979 From Refusal of an Application Under S 96 AA to Modify Conditions of Development Consent and a Plan of Management for a Hotel / Determination After S 34 Conciliation Was Terminated; Parties Consented to Determination Under S 34(4) of the Land and Environment Court Act 1979
Outcome
Appeal upheld
Legal Topics
['modification of Development Consent' 'hotel Trading Hours' 'noise Impacts' 'residential Amenity' 'plan of Management' 'trial Period for Extended Hours']
['environmental Planning and Development' 'land and Environment' 'licensed Premises'] ['modification of Development Consent' 'hotel Trading Hours' 'noise Impacts' 'residential Amenity' 'plan of Management' 'trial Period for Extended Hours']

Case Brief

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Procedural Posture

Class 1 Appeal Under S 97 AA of the Environmental Planning and Assessment Act 1979 From Refusal of an Application Under S 96 AA to Modify Conditions of Development Consent and a Plan of Management for a Hotel / Determination After S 34 Conciliation Was Terminated; Parties Consented to Determination Under S 34(4) of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ['Whether the modification application to extend trading hours for parts of the hotel should be approved despite existing residential amenity impacts and objections.' 'Whether the revised conditions and Plan of Management provided sufficient controls to minimise or avoid anti-social behaviour and noise impacts.' 'Whether extended operating hours should be subject to a trial period.']

Ratio Decidendi

The Court approved the modification because, although there was evidence of past adverse impacts on the locality through anti-social behaviour and noise, the proposed conditions and revised Plan of Management imposed substantially stronger controls for the extended hours and for the hotel as a whole, including noise works, security, CCTV, patron management, complaints procedures and community liaison. A 12 month trial period was appropriate to test whether those controls were effective, with adverse effects being reversible by return to existing approved hours or by adjustments to management or acoustic measures.

Court Disposition

Appeal upheld

Orders

  • ['The appeal is upheld.' 'Modification Application No. 1899/2005/HB/B to modify conditions of a development consent granted by the Court on 23 August 2006 and a Plan of Management for a hotel at 168 Caroline Chisholm Drive Winston Hills is approved, subject to the conditions in Annexure A.' 'The exhibits may be...