Cirillo v The Council of the City of Sydney

[2020] NSWLEC 1375

Land and Environment Court

New South Wales

Medium Neutral Citation:

Cirillo v The Council of the City of Sydney [2020] NSWLEC 1375

Hearing dates:

Conciliation conference on 26 June 2020

Date of orders:

17 August 2020

Decision date:

17 August 2020

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The Court Orders:

(1) The Applicant is granted leave to amend the Development Application and to rely upon the amended plans and documents listed in Condition 1 of the conditions of consent at Annexure A.
(2) The Applicant is to pay the Respondent’s costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed in the sum of $2,000.00 within 28 days of the date of these orders.
(3) The appeal is upheld.
(4) Development Application No. D/2019/1354 for the adaptive reuse of an existing warehouse building to a café with ancillary sale of coffee related products at 1-3 Lawrence Street, Alexandria, is approved, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION — conciliation conference — agreement between the parties

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Sydney Local Environmental Plan 2012

Category:

Principal judgment

Parties:

Giovanni Cirillo (Applicant)
The Council of the City of Sydney (Respondent)

Representation:

Counsel:
S Kondilios (Solicitor) (Applicant)
A Simpson (Solicitor) (Respondent)

Solicitors:
Hall & Wilcox Lawyers (Applicant)
Council of the City of Sydney (Respondent)

File Number(s):

2020/105936

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. D/2019/1354 for the adaptive reuse of an existing warehouse building to a café with ancillary sale of coffee related products (the proposal) at 1-3 Lawrence Street, Alexandria (the site) by the Council of the City of Sydney (the Council).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 26 June 2020. I presided over the conciliation conference.

3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision, if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, pursuant to the relevant clauses of the Sydney Local Environmental Plan 2012 (LEP 2012).

Planning framework

6. The site is zoned R1 General Residential pursuant to LEP 2012. Food and drink premises are a permissible use in the R1 zone. The objectives of the R1 zone, to which regard must be had, are:

• To provide for the housing needs of the community.

• To provide for a variety of housing types and densities.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To maintain the existing land use pattern of predominantly residential uses.

7. The proposal is for internal and external alterations and additions to an existing warehouse building and a change of use to a food and drink premises (café) with an ancillary shop for the sale of coffee related products. I am satisfied that the Council’s contention regarding permissibility and characterisation has been resolved as the proposal’s primary use is for a café and that the coffee roasting proposed in the premises is a limited ancillary use (condition 4) solely for making coffees on-site within the café area and may not be made available for retail sale (condition 5).

Orders

8. The orders of the Court are:

1. The Applicant is granted leave to amend the Development Application and to rely upon the amended plans and documents listed in Condition 1 of the conditions of consent at Annexure A.

2. The Applicant is to pay the Respondent’s costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed in the sum of $2,000.00 within 28 days of the date of these orders.

3. The appeal is upheld.

4. Development Application No. D/2019/1354 for the adaptive reuse of an existing warehouse building to a café with ancillary sale of coffee related products at 1-3 Lawrence Street, Alexandria, is approved, subject to the conditions of consent at Annexure A.

____________

Susan O’Neill

Commissioner of the Court

Annexure A (253739, pdf)

**********

Decision last updated: 17 August 2020