ABD Holdings Pty Limited v City of Sydney Council [2012] NSWLEC 1261

Land and Environment Court New South Wales

Medium Neutral Citation: ABD Holdings Pty Limited v City of Sydney Council [2012] NSWLEC 1261 Hearing dates: 13 and 14 August 2012 Decision date: 14 August 2012 Jurisdiction: Class 1 Before: Dixon C Decision: (1)The appeal is upheld. (2)The application for development consent D/2012/254 for restaurant and office made under the Environmental Planning and Assessment Act 1979 in relation to the premises at 55 to 61 Riley Street is approved subject to the conditions in annexure A. (3)The applicant pay the respondent's costs thrown away in the amount of $3,500 under s 97B of the Environmental Planning and Assessment Act 1979 within twenty-eight days of the date of this order. (4)The exhibits are returned. Catchwords: Development application: adaptive reuse of heritage warehouse as a restaurant and office Legislation Cited: Environmental Planning and Assessment Act 1979 South Sydney Local Environmental Plan 1998 Draft Sydney Local Environmental Plan 2011 Category: Principal judgment Parties: ABD Holdings Pty Limited (Applicant)

City of Sydney Council (Respondent) Representation: Counsel Mr Eastman (Applicant) Mr Clay SC (Respondent) Solicitors Mr Whealy (Applicant) Gadens lawyers Ms Morrin (Respondent) City of Sydney Council lawyer File Number(s): 10347 of 2012

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background 1This is an appeal under s 97(1)(b) of the Environmental Planning and Assessment Act 1979 (the Act) against the Sydney City Council's deemed refusal of a development application (DA - D/2012/254). The applicant, ABD Holdings Pty Limited, relies on s 82(1) of the Act which states "... if a consent authority has not determined a development application within the relevant period, ...for the purpose only of section 97, it is taken to have determined the application by refusing consent on the date on which the period expires". 2Despite the lodgement of this appeal on the morning of the hearing, the parties advised me that they had resolved most of the contentions in the Council's statement of facts and contentions. They also asked me to adjourn the proceedings to allow the applicant an opportunity to prepare an amended car-parking plan. They indicated that subject to the resolution of that issue it was likely that the appeal could proceed to a Consent Orders hearing. 3For the above reasons I allowed an adjournment for a period of 24 hours.

Consent Orders 4As anticipated at the resumed hearing today I have been asked to approve the amended application in accordance with the Consent Orders filed with the Court on 14 August 2012. 5In order for the Court to make the Consent Orders it must be satisfied that the objectors to the original application have been consulted. To that end the Council tendered a copy of a letter (Exhibit 3), which was sent to the objectors to the original application. Having regard to the contents of that letter, I am satisfied that the objectors to this development are aware of the amended application and the Council's decision to support the development subject to conditions. I am also satisfied, based on the evidence of Ms Pont - the council planner - that the amended application satisfactorily addresses the contentions raised by the Council and the objectors (as identified in their written objections which are before the Court in the Council's bundle in Exhibit 1). 6Accordingly, I am able to hear the matter and deal with the Consent Orders.

Proposal 7The application concerns the refurbishment and use of an existing warehouse at 55 Riley Street, Woolloomooloo as a restaurant and office. The detail of the application is explained in the amended plans in Exhibit A, the agreed draft conditions of consent in Exhibit B and the amended plan of management in Exhibit 2. 8The agreed statement of facts and contentions filed by the Council on 11 May 2012 sets out the background and the statutory controls for the site. The site is described as located on the western side of Riley Street and the eastern side of Busby Lane with McCarthy Place to the south. It contains a partly one and two storey heritage building with vehicular access provided from Riley Street to the ground and lower ground floor, and from Busby Lane to the lower ground floor. 9The land is within Zone 10 Mixed Uses under the South Sydney Local Environmental Plan 1998 (LEP). There are no prohibited uses in Zone 10. It is also identified as being within the B4 - Mixed Uses zone under the Council's Draft Sydney Local Environmental Plan 2011. 10The proposal is permissible with development consent under the current and draft LEP. 11The site has been used for car related uses for an extended period of time including parking, storage and detailing. It is currently vacant. Any contamination issue has been dealt with by the applicant's technical reports and the draft conditions of consent. 12The Council does not raise any heritage issue in respect of the amended application because there will be no significant alteration to the external form or appearance of the building. The primary issue for the Council and the local residents has always been the restaurant's hours of operation and parking. Initially, the applicant had sought extended trading until 12 midnight and 2 am. It has now been agreed that the hours of operation will be in accordance with draft condition 3 of the consent. It states: (a)The hours of operation must be restricted to between 7 am and 11 pm Monday to Sunday. (b)Notwithstanding (a) above the use may operate between 11 pm and 12 midnight for a trial period of one year from the date of issue of the Occupation Certificate or the date the premises is first used as a restaurant, whichever is earlier. Council's Planning Unit is to be informed in writing of the date of commencement. (c)A further application may be lodged to continue the trading hours outlined in (b) above before the end of the trial period. Council's consideration of a proposed continuation and/or extension of the hours permitted by the trial will be based on, among other things, the performance of the operator in relation to the compliance with development consent conditions, any substantiated complaints received and any views of the police. 13As detailed above the amended application proposes a trial period of one year in respect of extended operation of hours from 11pm to midnight. Otherwise, the core hours are from 7 am to 11 pm seven days a week. According to Ms Pont, condition 3 and the plan of management satisfactorily address the Council and the objectors' concerns about late night trading on the site. The parking issue is resolved by the amended car-parking plan prepared overnight. It increases onsite parking and reduces the office space. According to Ms Pont, the amended application in the Consent Orders is acceptable after an assessment under s 79C of the Act. 14After a consideration of the relevant planning controls including the Council's DCP and Ms Pont's evidence, I find the amended application acceptable after an assessment under s 79C of the Act. Accordingly, I make the following Orders by consent: (1)The appeal is upheld. (2)The application for development consent D/2012/254 for restaurant and office made under the Environmental Planning and Assessment Act 1979 in relation to the premises at 55 to 61 Riley Street is approved subject to the conditions in annexure A. (3)The applicant pay the respondent's costs thrown away in the amount of $3,500 under s 97B of the Environmental Planning and Assessment Act 1979 within twenty-eight days of the date of this order. (4)The Exhibits are returned. Susan Dixon Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 September 2012