Fiorenza v Waverley Council [2009] NSWLEC 1269

Fiorenza v Waverley Council [2009] NSWLEC 1269

The proposed trading hours of 7 am to 7 pm were within the general maximum hours in the Development Control Plan for Type B premises in a Residential 2(a) zone, and there was no evidence that the small café/deli, with no outdoor seating or street service, was likely to generate unacceptable residential amenity impacts. Although the use intensified the existing use, the evidence did not warrant a trial period, and the applicant was entitled to a reasonable degree of certainty about operating conditions.

Jurisdiction
Australia
Judgment Date
05 August 2009
Procedural Posture
Appeal Against Conditions of Approval Imposed on an Application Under S 96 of the Environmental Planning and Assessment Act 1979 to Modify Development Consent / Ex Tempore Judgment After Onsite Hearing
Outcome
Appeal upheld; condition 4 amended to delete the trial period and permit trading between 7 am and 7 pm daily.
Legal Topics
['modification of Development Consent' 'existing Use Rights' 'conditions of Approval' 'trading Hours' 'residential Amenity' 'trial Period']
['planning and Environment' 'development Consent'] ['modification of Development Consent' 'existing Use Rights' 'conditions of Approval' 'trading Hours' 'residential Amenity' 'trial Period']

Case Brief

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Procedural Posture

Appeal Against Conditions of Approval Imposed on an Application Under S 96 of the Environmental Planning and Assessment Act 1979 to Modify Development Consent / Ex Tempore Judgment After Onsite Hearing

Legal Issues

  1. 1 ['Whether condition 4 requiring a one year trial period for trading from 7.00 am to 7.00 pm seven days per week was reasonable.' 'Whether the proposed café/deli use was likely to generate unacceptable amenity impacts in a Residential 2(a) zone.' 'Whether planning controls, including the Development Control Plan, could be used as a guide in assessing likely impacts where existing use rights were relied on.']

Ratio Decidendi

The proposed trading hours of 7 am to 7 pm were within the general maximum hours in the Development Control Plan for Type B premises in a Residential 2(a) zone, and there was no evidence that the small café/deli, with no outdoor seating or street service, was likely to generate unacceptable residential amenity impacts. Although the use intensified the existing use, the evidence did not warrant a trial period, and the applicant was entitled to a reasonable degree of certainty about operating conditions.

Court Disposition

Appeal upheld; condition 4 amended to delete the trial period and permit trading between 7 am and 7 pm daily.

Orders

  • ['The appeal is upheld.' 'The application under s 96 of the Environmental Planning and Assessment Act 1975 to modify development consent (565/05) to change of use from a naturopathic clinic to a deli/café at 2 Brighton Boulevarde, Bondi Beach is approved subject to the conditions in Annexure A.' 'The exhibits,...