Australian Leisure and Hospitality Group Limited v Manly Council [2008] NSWLEC 312

Australian Leisure and Hospitality Group Limited v Manly Council [2008] NSWLEC 312

Section 39(2) of the Land and Environment Court Act 1979 vests in the Court the power to grant approval for a person to use a footpath for restaurant purposes under s 125 of the Roads Act, where that approval is required to give effect to the development consent granted as part of the subject matter of the appeal. There is no relevant distinction between powers under s 125 and s 138 for the purposes of Court exercising council functions; the modification application is properly within Court jurisdiction.

Jurisdiction
Australia
Judgment Date
21 November 2008
Procedural Posture
Class 1 Appeal Question of Law / Preliminary Determination of Question of Law on S 39(2) Application
Outcome
Question of law answered in the affirmative; Court has power under s 39(2) to grant approval under s 125 of the Roads Act in this modification application.
Legal Topics
['modification of Development Consent' 'exercise of Court Functions Under S 39(2) Land and Environment Court Act' 'approval Under S 125 Roads Act' 'outdoor Restaurant Use of Public Footpath']
['environmental and Planning Law' 'administrative Law'] ['modification of Development Consent' 'exercise of Court Functions Under S 39(2) Land and Environment Court Act' 'approval Under S 125 Roads Act' 'outdoor Restaurant Use of Public Footpath']

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Procedural Posture

Class 1 Appeal Question of Law / Preliminary Determination of Question of Law on S 39(2) Application

Legal Issues

  1. 1 ['Does s 39(2) of the Land and Environment Court Act 1979 empower the Court to grant approval under s 125 of the Roads Act 1993 in a s 96 modification application invoking use of public footpath for restaurant purposes?' 'Is the exercise of functions under s 125 of the Roads Act amenable to the Court in Class 1 appeals and modification applications when included as part of the subject matter of development consent?']

Ratio Decidendi

Section 39(2) of the Land and Environment Court Act 1979 vests in the Court the power to grant approval for a person to use a footpath for restaurant purposes under s 125 of the Roads Act, where that approval is required to give effect to the development consent granted as part of the subject matter of the appeal. There is no relevant distinction between powers under s 125 and s 138 for the purposes of Court exercising council functions; the modification application is properly within Court jurisdiction.

Court Disposition

Question of law answered in the affirmative; Court has power under s 39(2) to grant approval under s 125 of the Roads Act in this modification application.

Orders

  • ["Unless contrary submissions are received within seven days, Council to pay Applicant's costs of preliminary hearing on question of law."]