Bales Investments Pty Ltd and Ors v Cessnock City Council [2009] NSWLEC 1102

Bales Investments Pty Ltd and Ors v Cessnock City Council [2009] NSWLEC 1102

Although antisocial behaviour and incidents occurred during the trial period and some could reasonably be attributed to the Wentworth Hotel, the evidence did not justify outright refusal because the impacts could be minimised by enforceable consent conditions, an improved security management plan, compliance audits, security measures and contact with police. Properly managed, the hotel could trade until 3 a.m. on Friday and Saturday nights without unacceptable amenity impacts or infringement of the 3(a) zone objectives, but the legitimate concerns of police and council warranted approval only for a further 12 month trial period.

Jurisdiction
Australia
Judgment Date
08 April 2009
Procedural Posture
Modification Application Under Section 96 (1a) of the EPA Act Concerning Hotel Trading Hours / Appeal Against Deemed Refusal; Judgment and Orders
Outcome
Appeal upheld; development consent modified subject to a twelve month trial period and revised operating conditions.
Legal Topics
['modification Application' 'hotel Trading Hours' 'neighbourhood Amenity' 'social Impact' 'security Management Plan' 'commercial Zone Objectives']
['environmental Planning and Assessment' 'land Use Planning' 'licensed Premises'] ['modification Application' 'hotel Trading Hours' 'neighbourhood Amenity' 'social Impact' 'security Management Plan' 'commercial Zone Objectives']

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Procedural Posture

Modification Application Under Section 96 (1a) of the EPA Act Concerning Hotel Trading Hours / Appeal Against Deemed Refusal; Judgment and Orders

Legal Issues

  1. 1 ['Whether the proposed extended trading hours would adversely affect the amenity of the surrounding commercial and residential areas by virtue of the behaviour of hotel patrons during and beyond the proposed trading hours.' 'Whether the proposed extended trading hours would encourage other retail commercial and tourist development in the locality and be consistent with the objectives of the 3(a) General Business Zone.' 'Whether social impacts and police data concerning antisocial behaviour and alcohol-linked incidents justified refusal or could be addressed by enforceable conditions and a revised security management plan.' 'Whether the modification should be approved permanently or only for a further trial period.']

Ratio Decidendi

Although antisocial behaviour and incidents occurred during the trial period and some could reasonably be attributed to the Wentworth Hotel, the evidence did not justify outright refusal because the impacts could be minimised by enforceable consent conditions, an improved security management plan, compliance audits, security measures and contact with police. Properly managed, the hotel could trade until 3 a.m. on Friday and Saturday nights without unacceptable amenity impacts or infringement of the 3(a) zone objectives, but the legitimate concerns of police and council warranted approval only for a further 12 month trial period.

Court Disposition

Appeal upheld; development consent modified subject to a twelve month trial period and revised operating conditions.

Orders

  • ['The appeal is upheld.' 'The development consent for the Wentworth Hotel is modified by deleting Condition No. 2 and replacing it with a condition permitting trade between midnight and 3 a.m. on Friday and Saturday nights only for a twelve (12) month trial period from 7 April 2009, with further approval required...