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

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

It is not appropriate to reconsider planning matters already determined under s 79C of the EPA Act when considering an application under s 125 of the Roads Act 1993; the council's discretion under s 125 is not unfettered but is constrained by the Act; proposed additional conditions not directly related to the...

Source-derived case information.

Parties
Applicant: Australian Leisure and Hospitality Pty Limited; Respondent: Manly Council
Jurisdiction
Australia
Judgment Date
10 June 2009
Procedural Posture
Appeal / Judgment After Hearing on Modification of Development Consent
Outcome
Appeal upheld; modification application approved; Roads Act approval approved, with directions for parties to finalise conditions and bond amount before final orders.
Legal Topics
Modification of Development Consent, Roads Act Approval for Footway Use, Outdoor Dining, Role of Planning Instruments, Scope of Discretionary Powers
Planning Law Administrative Law Modification of Development Consent Roads Act Approval for Footway Use Outdoor Dining Role of Planning Instruments Scope of Discretionary Powers

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Summary, issues, holding and outcome

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Parties

Australian Leisure and Hospitality Pty Limited

Applicant

Manly Council

Respondent

Procedural Posture

Appeal / Judgment After Hearing on Modification of Development Consent

Legal Issues

  1. 1 Whether the Court should reconsider planning issues on an application under s 125 Roads Act 1993
  2. 2 Whether council's discretion under s 125 is unfettered
  3. 3 Whether planing regime changes justify reconsideration of planning issues

Ratio Decidendi

It is not appropriate to reconsider planning matters already determined under s 79C of the EPA Act when considering an application under s 125 of the Roads Act 1993; the council's discretion under s 125 is not unfettered but is constrained by the Act; proposed additional conditions not directly related to the modification (condition 50 and s 125 approval) are inappropriate; trial period and planning regime have not changed sufficiently to warrant a different result from the original consent.

Court Disposition

Appeal upheld; modification application approved; Roads Act approval approved, with directions for parties to finalise conditions and bond amount before final orders.

Orders

  • Appeal is upheld.
  • Modification to condition 50 of Development Consent 387/03 is approved subject to new conditions as annexed.