Brindley v Parramatta City Council

Land and Environment Court

New South Wales

Medium Neutral Citation:	Brindley v Parramatta City Council [2014] NSWLEC 1193
Hearing dates:	28 August 2014
Decision date:	29 August 2014
Jurisdiction:	Class 1
Before:	Moore SC
Decision:	See (64) for directions to permit orders to be made upholding the appeal and modifying the development consent subject to revised conditions
Catchwords:	DEVELOPMENT CONSENT: Modification application; drug and alcohol rehabilitation centre; impact on residential amenity; hours of operation; societal need for such centres (public interest)
Legislation Cited:	Environmental Planning and Assessment Act 1979 Parramatta Local Environmental Plan 2011
Cases Cited:	Kinder Investments Pty Ltd v Sydney City Council [2005] NSWLEC 737; (2005) 143 LGERA 237 Lemworth Pty Ltd v Liverpool City Council [2001] NSWCA 389; (2001) 117 LGERA 305 Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298 Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240; (2000) 111 LGERA 299
Category:	Principal judgment
Parties:	R Brindley (Applicant) Parramatta City Council (Respondent)
Representation:	Ms M Saw, barrister (Applicant) Mr A Gough, solicitor (Respondent) N/A (Applicant) Storey & Gough (Respondent)
File Number(s):	10073 of 2014

Judgment

1. SENIOR COMMISSIONER: Substance abuse and addiction are significant problems in a modern industrialised society. It is necessary, in the context of the social and criminal impacts of such addiction, to provide socially beneficial rehabilitation and counselling services. Wayback operates such a facility at Harris Park in Sydney's western suburbs. It does so from a single level, heritage listed cottage that has been adapted for this purpose. The service has operated out of their premises for some 22 years - the majority of which was without a formal development consent for the use.

1. In 2009, Wayback sought and was granted development consent for the use of the premises, on a retrospective basis, and for additions and alterations to the building including a rear extension. That development approval, in DA/591/2009, was given by Parramatta City Council (the Council) on 24 December 2009. The approval was subject to a number of operating conditions, two of which are relevant for the purposes of these proceedings. The first, condition 26, restricted the operation of the facility from 8.00am to 5.00pm Monday to Fridays, and, second, condition 29 provided that a maximum of 30 clients could attend the centre on any day.

1. The Local Environmental Plan under which the 2009 consent was given was replaced in October 2011 by Parramatta Local Environmental Plan 2011, a Local Environment Plan based on the standard instrument template.

1. Under the 2011 Local Environmental Plan, the site is now zoned B1 Neighbourhood Centre. The agreed characterisation of the activities undertaken by Wayback at the premises is as a health service facility and this is now a use that is prohibited by the land use table in the Local Environmental Plan for the B1 zone. As a consequence, Wayback's activities for the future rely on existing use rights.

1. The aims of the 2011 Local Environment Plan are set…