Australian Leisure and Hospitality Group Pty Ltd v Manly Council (No 5) [2012] NSWLEC 53

Australian Leisure and Hospitality Group Pty Ltd v Manly Council (No 5) [2012] NSWLEC 53

The modification to the development consent for changes to the outdoor eating area should be approved as proposed. Approval under s 125 of the Roads Act 1993 should be granted for the Sydney Road footway, as the application is consistent with relevant planning controls and does not cause unacceptable impacts. Approval should not be granted for the footway on The Corso, due to inconsistency with the specific urban design and planning approach for The Corso, which prioritises free pedestrian flow and centralised outdoor dining.

Jurisdiction
Australia
Judgment Date
26 March 2012
Procedural Posture
Appeal / Final Judgment on Appeal Against Council's Refusal to Modify Development Consent and Application for Roads Act Approval
Outcome
Appeal upheld in part; development consent modified; approval under Roads Act granted for Sydney Road only
Legal Topics
['development Consent Modification' 'outdoor Eating Areas' 'roads Act Approval' 'local Planning Controls']
['planning and Environment' 'local Government'] ['development Consent Modification' 'outdoor Eating Areas' 'roads Act Approval' 'local Planning Controls']

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Procedural Posture

Appeal / Final Judgment on Appeal Against Council's Refusal to Modify Development Consent and Application for Roads Act Approval

Legal Issues

  1. 1 ["Whether development consent should be modified to allow changes to the number and location of tables and chairs in an outdoor eating area on public footways adjacent to the applicant's hotel" 'Whether approval should be granted under s 125 of the Roads Act 1993 for use of the footway of Sydney Road and The Corso for restaurant purposes']

Ratio Decidendi

The modification to the development consent for changes to the outdoor eating area should be approved as proposed. Approval under s 125 of the Roads Act 1993 should be granted for the Sydney Road footway, as the application is consistent with relevant planning controls and does not cause unacceptable impacts. Approval should not be granted for the footway on The Corso, due to inconsistency with the specific urban design and planning approach for The Corso, which prioritises free pedestrian flow and centralised outdoor dining.

Court Disposition

Appeal upheld in part; development consent modified; approval under Roads Act granted for Sydney Road only

Orders

  • ['Development consent 387/2003 is modified to update conditions 1 and 50(i) to refer to the amended plan for the outdoor eating area.' 'Approval is granted under s 125 of the Roads Act 1993 to use part of the footway of Sydney Road, Manly for a restaurant, subject to specified conditions for a 12-month period.'...