Consumo Pty Limited v Fairfield City Council [2003] NSWLEC 143

Consumo Pty Limited v Fairfield City Council [2003] NSWLEC 143

Fairfield Local Environmental Plan 1994 (Amendment No. 45) regulated or restricted the number of gaming machines in hotels by defining and prohibiting gaming taverns by reference to having more than three gaming machines. It therefore contravened s 209(1) of the Gaming Machines Act 2001 and, under s 209(2), had no force or effect for the purposes of the modification application. In any event, the applicant's right to seek modification under s 96(2) of the Environmental Planning and Assessment Act 1979 was not affected by the later Amendment. The Court therefore had power to grant the modification sought.

Jurisdiction
Australia
Judgment Date
02 July 2003
Procedural Posture
Question of Law in Proceedings Concerning Modification of Development Consent / Question Referred by Commissioner Hoffman to the Chief Judge Pursuant to S 36(5) of the Land and Environment Court Act 1979
Outcome
The Court determined that it has power to grant the modification of the consent sought by the applicant.
Legal Topics
['modification of Development Consent' 'local Environmental Plan Amendment' 'gaming Machines in Hotels' 'power to Grant Consent']
['environmental Planning and Assessment' 'local Government' 'gaming Regulation'] ['modification of Development Consent' 'local Environmental Plan Amendment' 'gaming Machines in Hotels' 'power to Grant Consent']

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Procedural Posture

Question of Law in Proceedings Concerning Modification of Development Consent / Question Referred by Commissioner Hoffman to the Chief Judge Pursuant to S 36(5) of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ['Whether there is power under the applicable legislation to grant consent to the application to modify the existing development consent.' 'Whether Fairfield Local Environmental Plan 1994 (Amendment No. 45), which prohibited gaming taverns in Zone 3(c), had effect in light of s 209 of the Gaming Machines Act 2001.' "Whether a subsequent amendment to planning controls affected the applicant's statutory right to seek modification of a validly granted consent under s 96(2) of the Environmental Planning and Assessment Act 1979."]

Ratio Decidendi

Fairfield Local Environmental Plan 1994 (Amendment No. 45) regulated or restricted the number of gaming machines in hotels by defining and prohibiting gaming taverns by reference to having more than three gaming machines. It therefore contravened s 209(1) of the Gaming Machines Act 2001 and, under s 209(2), had no force or effect for the purposes of the modification application. In any event, the applicant's right to seek modification under s 96(2) of the Environmental Planning and Assessment Act 1979 was not affected by the later Amendment. The Court therefore had power to grant the modification sought.

Court Disposition

The Court determined that it has power to grant the modification of the consent sought by the applicant.

Orders

  • ['The proceedings are remitted to Commissioner Hoffman for further consideration.']