Australian Leisure and Hospitality Group Ltd v Manly Council [2010] NSWLEC 1113

Australian Leisure and Hospitality Group Ltd v Manly Council [2010] NSWLEC 1113

The modified proposal was substantially the same development as the 2005 Consent because the majority of works were internal and enabled implementation of, or compliance with, that consent, while the smokers courtyard was not a radical transformation. The s96(2) requirements were satisfied, the evidence did not contradict the applicant's heritage and acoustic material, and the application could be approved. Proposed deferred commencement conditions A1 and A2 were not imposed because they would defer an operative consent and were unnecessary in light of the drawings and existing conditions, but condition 87(i) was imposed because the courtyard was open to the sky, objections raised noise...

Jurisdiction
Australia
Judgment Date
19 May 2010
Procedural Posture
Application Under S96(8) of the Environmental Planning and Assessment Act 1979 to Modify a Development Consent / Judgment on Modification Application
Outcome
Development Application 387/03 was modified subject to conditions in Annexure A; proposed conditions A1 and A2 were not imposed and condition 87(i) was imposed.
Legal Topics
['modification of Development Consent' 'substantially the Same Development' 'deferred Commencement Conditions' 'heritage Impact' 'noise Conditions' 'operational Plan of Management']
['planning and Environment' 'development Consent Modification' 'heritage Conservation'] ['modification of Development Consent' 'substantially the Same Development' 'deferred Commencement Conditions' 'heritage Impact' 'noise Conditions' 'operational Plan of Management']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application Under S96(8) of the Environmental Planning and Assessment Act 1979 to Modify a Development Consent / Judgment on Modification Application

Legal Issues

  1. 1 ['Whether the development as modified was substantially the same development as the development for which consent was originally granted.' 'Whether the requirements of s96(2) and s96(3) of the Environmental Planning and Assessment Act 1979 were satisfied.' 'Whether proposed deferred commencement conditions A1 and A2 should be imposed.' 'Whether condition 87(i) limiting the courtyard operating hours to 10.00am to midnight should be imposed.']

Ratio Decidendi

The modified proposal was substantially the same development as the 2005 Consent because the majority of works were internal and enabled implementation of, or compliance with, that consent, while the smokers courtyard was not a radical transformation. The s96(2) requirements were satisfied, the evidence did not contradict the applicant's heritage and acoustic material, and the application could be approved. Proposed deferred commencement conditions A1 and A2 were not imposed because they would defer an operative consent and were unnecessary in light of the drawings and existing conditions, but condition 87(i) was imposed because the courtyard was open to the sky, objections raised noise...

Court Disposition

Development Application 387/03 was modified subject to conditions in Annexure A; proposed conditions A1 and A2 were not imposed and condition 87(i) was imposed.

Orders

  • ['Development Application 387/03 for alterations and additions to the New Brighton Hotel at 71 The Corso Manly approved by the Land and Environment Court on 24 June 2005 is modified and is subject to the conditions in Annexure A.' 'The exhibits, except exhibits 1, B, C, D and F, may be returned.']