Burgess v Baulkham Hills Shire Council [2008] NSWLEC 1443

Procedural Posture

Development Application Appeal / Ex Tempore Judgment

Legal Issues

1. 1 ['Whether the Court could grant retrospective development consent for the fitout already carried out at the premises.' 'Whether the proposed use of the premises as a tattoo and body piercing parlour should be approved.' 'What hours of operation should be permitted, particularly Friday and Saturday trading until 3 AM.' 'Whether the proposed hours of operation were compatible with adjoining land uses under cl 3.9 of Part C, Section 8 of the Baulkham Hills Development Control Plan.']

Ratio Decidendi

The fitout had already occurred and could not be retrospectively approved, but because it was non-structural the Court could determine the proposed use while the fitout was addressed by a building certificate. The evidence did not show that the premises caused behavioural problems, police attendance, or an attraction element increasing incidents in Arthur Whitling Park. Interpreting compatibility in the Development Control Plan as meaning not interfering with adjoining land uses, there was no reasonable basis to refuse the proposed late trading hours, although a cautionary approach justified allowing trading beyond midnight to 3 AM on a 12-month trial basis.

Court Disposition

Development consent granted subject to conditions, with extended trading beyond midnight to 3 AM on Friday and Saturday nights to operate on a 12-month trial basis.

Orders

• ['Development consent granted subject to conditions.' 'The applicant was to apply to the Council for a building certificate dealing with the adequacy of the fitout.' 'Extended hours beyond midnight to 3 AM were permitted on a trial basis for 12 months.']