McHugh Holdings Pty Ltd v Manly Council [2010] NSWLEC 1160

McHugh Holdings Pty Ltd v Manly Council [2010] NSWLEC 1160

The proposed extension to 3am and deletion of the 12.30am lockout did not warrant variation of the DCP because late night trading hotels, including the Shore Club, contribute to alcohol-related anti-social behaviour in Manly; a 3am closure would add to crowds and transport pressures when other venues were closing; the lockout assisted patron dispersal; and the applicant had not shown that the impacts would be acceptable. However, permitting level 2 to operate until the 2am closing time for a 12 month trial, subject to acoustic controls, patron limits, noise monitoring, security requirements and an amended Plan of Management, was appropriate and consistent with the DCP objectives.

Jurisdiction
Australia
Judgment Date
06 August 2010
Procedural Posture
Three Related Appeals Against the Deemed Refusal of Applications Under S 96 and S 96 AA of the Environmental Planning and Assessment Act 1979 to Modify Development Consents for the Shore Club, 32 38 South Steyne, Manly. / Judgment After Hearing; Parties Directed to File Agreed Short Minutes of Order and an Amended Plan of Management, With Final Orders to Issue in Chambers.
Outcome
Appeals allowed in part: the Court refused the proposed 3am closing time and removal of the 12.30am lockout, but accepted amendments permitting level 2 to trade until the 2am closing time for a 12 month trial and other agreed operational, security and management changes.
Legal Topics
['late Night Trading Hours' 'restricted Entry Policy or Lockout' 'social Impact and Anti Social Behaviour' 'weight to Be Given to Development Control Plan' 'acoustic Impact' 'security and Plan of Management']
['planning and Environment' 'development Consent Modification' 'licensed Premises'] ['late Night Trading Hours' 'restricted Entry Policy or Lockout' 'social Impact and Anti Social Behaviour' 'weight to Be Given to Development Control Plan' 'acoustic Impact' 'security and Plan of Management']

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Procedural Posture

Three Related Appeals Against the Deemed Refusal of Applications Under S 96 and S 96 AA of the Environmental Planning and Assessment Act 1979 to Modify Development Consents for the Shore Club, 32 38 South Steyne, Manly. / Judgment After Hearing; Parties Directed to File Agreed Short Minutes of Order and an Amended Plan of Management, With Final Orders to Issue in Chambers.

Legal Issues

  1. 1 ["Whether the Shore Club's trading hours should be extended from 2am to 3am." 'Whether the 12.30am restricted entry or lockout condition should be removed.' 'Whether the second floor should be permitted to operate after midnight until closing time.' 'Whether the proposed modifications complied with, or warranted departure from, the Manly Development Control Plan for Late Night Venues 2005.' 'Whether the existing operation and proposed modifications would contribute to unacceptable alcohol-related anti-social behaviour and impacts on residential amenity.']

Ratio Decidendi

The proposed extension to 3am and deletion of the 12.30am lockout did not warrant variation of the DCP because late night trading hotels, including the Shore Club, contribute to alcohol-related anti-social behaviour in Manly; a 3am closure would add to crowds and transport pressures when other venues were closing; the lockout assisted patron dispersal; and the applicant had not shown that the impacts would be acceptable. However, permitting level 2 to operate until the 2am closing time for a 12 month trial, subject to acoustic controls, patron limits, noise monitoring, security requirements and an amended Plan of Management, was appropriate and consistent with the DCP objectives.

Court Disposition

Appeals allowed in part: the Court refused the proposed 3am closing time and removal of the 12.30am lockout, but accepted amendments permitting level 2 to trade until the 2am closing time for a 12 month trial and other agreed operational, security and management changes.

Orders

  • ["Appeal No 10979: Condition 41 to be in the council's version, retaining the 2am closing and 12.30am restricted entry." 'Appeal No 10979: Conditions 42 and 42A to be as agreed by the experts and amended during the hearing to permit level 2 to trade until closing for a 12 month trial period in accordance with the...