Malouf v Manly Council [2009] NSWLEC 1379

Malouf v Manly Council [2009] NSWLEC 1379

The development application merited conditional consent because the proposed storage and refrigeration use was low intensity, did not increase café seating or employees, left adequate staff parking, avoided the main entry foyer through a revised transfer route, limited trolley movements, and could be controlled by conditions including a Plan of Management, health and safety requirements, access controls and a 6-month trial period. Past breaches of consent were not a relevant reason for refusal. The Building Certificate appeal was upheld in part because further works and satisfactory completion of the trial period were required before issue of the certificate.

Jurisdiction
Australia
Judgment Date
30 November 2009
Procedural Posture
Appeals Against Deemed Refusal of a Development Application and a Building Certificate Application / Judgment After Hearing
Outcome
Appeal No 11277/2008 upheld; development consent granted subject to conditions. Appeal No 10192/2009 upheld in part; Council to issue a Building Certificate subject to compliance with conditions and satisfactory completion of the trial period resulting in final consent.
Legal Topics
['conversion of Basement Car Parking Space to Storage and Refrigeration Use' 'amenity Impacts' 'car Parking and Access' 'food Premises Health Requirements' 'plan of Management' 'trial Period Consent']
['planning and Environment' 'development Consent' 'building Certificate'] ['conversion of Basement Car Parking Space to Storage and Refrigeration Use' 'amenity Impacts' 'car Parking and Access' 'food Premises Health Requirements' 'plan of Management' 'trial Period Consent']

Case Brief

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Procedural Posture

Appeals Against Deemed Refusal of a Development Application and a Building Certificate Application / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the conversion of basement car parking space lot 146 to a storage and refrigeration area for the Fusion Point café would cause unacceptable parking, access or amenity impacts.' 'Whether the proposed storage use was suitable given its separation from the café and the need to transport goods through the building.' 'Whether health risks from food storage in the basement could be satisfactorily addressed by conditions.' 'Whether objections by residents and alleged past breaches of consent warranted refusal.' 'Whether a Building Certificate should issue for the enclosure and ancillary works.']

Ratio Decidendi

The development application merited conditional consent because the proposed storage and refrigeration use was low intensity, did not increase café seating or employees, left adequate staff parking, avoided the main entry foyer through a revised transfer route, limited trolley movements, and could be controlled by conditions including a Plan of Management, health and safety requirements, access controls and a 6-month trial period. Past breaches of consent were not a relevant reason for refusal. The Building Certificate appeal was upheld in part because further works and satisfactory completion of the trial period were required before issue of the certificate.

Court Disposition

Appeal No 11277/2008 upheld; development consent granted subject to conditions. Appeal No 10192/2009 upheld in part; Council to issue a Building Certificate subject to compliance with conditions and satisfactory completion of the trial period resulting in final consent.

Orders

  • ['Appeal No 11277/2008 is upheld.' 'Development consent is granted for the use of the basement car space lot 146 for the storage and refrigeration of retail goods used in conjunction with the Fusion Café subject to the conditions in Annexure A.' 'The exhibits may be returned except for A, B, C, 2, 3, 6 and 7.'...