Cai v Fairfield City Council

[2011] NSWLEC 1370

Land and Environment Court

New South Wales

Medium Neutral Citation:

Cai v Fairfield City Council [2011] NSWLEC 1370

Hearing dates:

13 September 2011

Decision date:

13 September 2011

Jurisdiction:

Class 1

Before:

Brown ASC

Decision:

1. The appeal is upheld, in part, by consent.

2. Development Consent No. 1340.1/2010 to use of an existing industrial unit at unit 39/1-3 Knight Street, Lansvale for a club is approved subject to the conditions in Annexure A.

Catchwords:

CONSENT ORDERS - appeal against conditions of consent - hours of operation - 12 month operation of consent - security personnel - resident information letters - meeting with residents - dress code

Legislation Cited:

Environmental Planning & Assessment Act 1979
Practice Note - Class 1 Development Appeals

Category:

Principal judgment

Parties:

Xin Yin Cai (Applicant)

Fairfield City Council (Respondent)

Representation:

Counsel
Mr M Eirth, barrister (Applicant)

Mr G Castellan, solicitor (Respondent)
Solicitors
John Stonham & Co Lawyers (Applicant)

Ritchie & Castellan (Respondent)

File Number(s):

10308 of 2011

Judgment

1. ACTING SENIOR COMMISSIONER: This is an appeal pursuant to s 97(2) of the Environmental Planning & Assessment Act 1979 against conditions imposed by Fairfield City Council (the council) on Development Consent No. 1340.1/2010 for the approval of existing industrial unit 39 at 1-3 Knight Street, Lansvale (the site) as a club.

1. The conditions in dispute are:

• hours of operation (condition 4),
• 12 month operation of consent (condition 5),
• security personnel (condition 26),
• resident information letters (condition 34),
• meeting with residents (condition 35), and
• dress code (condition 38).

The site and its context

1. The site is located on the south-western corner of the intersection of Knight Street and the Hume Highway at Lansvale. It is an L-shaped allotment that contains 39 industrial units with associated carparking for a total of 237 vehicles. A service station is located on the opposite, eastern corner and industrial premises adjoin the southern and western boundaries of the site. Dwelling houses are located further south on both sides of Knight Street and on the northern side of the Hume Highway opposite the site.

1. Unit 39 is located in the north-western corner of the site fronting the Hume Highway. It is a two storey building comprising an entry foyer, dining/seating area, karaoke stage, kitchen, storerooms and toilet facilities at ground level and three karaoke lounges, a drinks/lounge area, dining/lounge area and toilet facilities on the upper floor. Fencing has been erected to the north of the unit to enclose an outdoor terrace which is nominated as a smoking/dining area and a separate waste compound. Vehicular ingress and egress to the site is from the Hume Highway and left only egress from the site to the Hume highway.

Background

1. The council approved the use of the site as a club on 15 January 2008. The consent originally provided a condition for a trial period of 12 months and this condition has been modified on two occasions to extend the date on which the consent would lapse. The 12 month trial period imposed under the modified consent expired on 16 January 2011. In May 2010, an application to modify conditions relating to hours of operation and patron numbers was lodged with the council. That application was ultimately withdrawn and a new development application lodged on 24 December 2010 (DA 1340.1/2010). The council granted consent to DA 1340.1/2010 on 25 March 2011 however conditions 4, 5, 26, 34, 35 and 38 of the consent are the subject of this appeal.

The hearing

1. The hearing was conducted as an on-site hearing on 13 September 2011. Prior to the commencement of the proceedings the parties requested additional time to further consider the conditions in dispute. This resulted in an agreement between the parties that condition 5 be retained and that conditions 4, 26, 34, 35 and 38 should be amended. It was also agreed that additional condition 39 to be included to address acoustical issues associated with the extended trading hours. On this basis, the parties agreed to enter into consent orders.

1. In accordance with the Practice Note - Class 1 Development Appeals , par 36, provides in part, that:

36. Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taking into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who were objected to the proposal....

1. In considering the requirements of par 36, I am satisfied that sufficient information was provided for me to conclude that the agreed modifications are lawful and appropriate in the circumstances of this case. I note that the documentation provided to me indicated that when the development application was advertised, the council received no submissions and as such the requirements in par 36 relating to persons who objected to the proposal are not relevant in this case.

Orders

1. The orders of the Court are:

1. The appeal is upheld, in part, by consent.

2. Development Consent No. 1340.1/2010 to use of an existing industrial unit at unit 39/1-3 Knight Street, Lansvale for a club is approved subject to the conditions in Annexure A.

_________

G T Brown

Acting Senior Commissioner

Decision last updated: 22 December 2011