Consumo Pty Limited v Fairfield City Council

[2003] NSWLEC 328

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Land and Environment Court

of New South Wales

CITATION:

Consumo Pty Limited v Fairfield City Council [2003] NSWLEC 328

PARTIES:

APPLICANT
Consumo Pty Limited

RESPONDENT
Fairfield City Council

FILE NUMBER(S):

10693 of 1998

CORAM:

Hoffman C

KEY ISSUES:

Appeal :- s 96 application to amend a consent and extend the floor space for a tavern
Could the amendment be granted the use now being prohibited
Noise transmission to residential units in the same building
Fire risk and the adequancy of walls proposed for fire isolation
Carparking provision
Late night activity in the residential area near the tavern

LEGISLATION CITED:

Fairfield Local Environmental Plan 1994

CASES CITED:

DATES OF HEARING:

17/04/2003, 12/06/2003 and 14/07/2003

EX TEMPORE
JUDGMENT DATE :

07/14/2003

LEGAL REPRESENTATIVES:

APPLICANT
Mr M Hewett, solicitor
of Hill Thomson and Sullivan Solicitors

RESPONDENT
Mr J Ritchie, solicitor
of Kencalo & Ritchie Solicitors

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10693 of 1998

Hoffman C

14 July 2003

Applicant

v

Respondent

Judgment

1. This was a section 96 application to amend a consent issued by the Court in appeal 10693/98 as determined on 4 March 1999 for a hotel tavern at shop 2, 485 Cabramatta Road West, Cabramatta West. That consent had been twice amended previously on 7 November 2000 and 26 February 2001.

2. This application was to allow the hotel tavern to use part of the first floor above the ground floor premises for a manager’s flat, two offices and storage and toilets for the hotel. The toilets and storage were previously included on the ground floor and there had been no manager’s flat. There was also previously one office on the ground floor.

3. The proposal would not increase the fifteen gaming machines and the three internet booths previously approved and would not change the floor space allocated to those users. The floor space made available on the ground floor would make the thirty seats at tables for the bistro food more comfortable. They were very tightly packed in the drawings approved on 26 February 2001 such that access between tables when persons were seated would be impossible unless seated persons stood up to allow persons to pass.

4. The amended plans in this appeal provided no additional tables and chairs but did allow space for persons to move between them when customers were seated. The bar, kitchen and service area floor space and layout remained almost the same as approved on 26 February 2001. Two garages at the rear of the existing flats and shops will be allocated for the manager and staff parking.

5. The Court was concerned during the hearing that there may be no power to grant the application due to changes to the Fairfield Local Environmental Plan 1994 in amendment 45 which had occurred since the original consent. The question was referred to a judge of the Court and Cowdroy J determined on 2 July 2003 that there was power and the existing consent could be modified to allow extension of the premises onto the first floor of the existing building.

6. There were concerns of the Court also in regard to:

(1) amenity of the locality,
(2) the amenity of other residents in the apartments,
(3) the concerns of nearby residents whose objections were before the Court especially about late night activity outside the premises,
(4) noise transmission through the building that might disturb residents of the flats,
(5) increased parking requirements, and
(6) potential increased fire risk within the building as a whole.

7. There was an adjournment allowed for the parties who were seeking consent orders to prepare evidence in regard to those matters. Amended plans were tendered in exhibit E and annotated together with expert reports prepared for the Court’s consideration and additional draft conditions and revised consent orders were tendered in exhibit F.

8. Having considered the evidence the Court is concerned that the proposal may have intensified the original proposal to an extent that might have adversely affected the neighbourhood to an unacceptable extent. The actual impacts considered in the original approval in 1999 had never been tested as the consent had not yet been implemented.

9. Overall the Court has been shown that the actual capacity of the premises has not been increased in terms of gaming machine numbers and bistro dining or bar seating capacities. The premises have only been made larger to make the dining area practical to operate with a maximum of fifty patrons on the premises at any one time remaining a condition of consent.

10. The provision of an on site manager’s flat will facilitate proper supervision of the premises and provide an on site resident manager to respond to any concerns of the apartment occupants or nearby house owners. The management plan for the hotel has not yet been prepared but in accordance with the original approval this must be done prior to commencement of its operation and will be approved by Fairfield Council and reviewed after twelve months by the Council and thereafter reviewed as required by the Council.

11. No bottle sales are required to take place from the premises and noise controls apply. Also the use of the premises as a place of entertainment would not be allowed without a further application being considered.

12. Overall the Court has come to the conclusion that the actual impacts of the development will be no different to those originally approved by the Court and that there are no new impacts sufficient to merit refusal of this amendment and that the consent orders sought by the parties should be granted.

13. The orders of the Court by consent are:

1. That the consent granted for a tavern on 4 March 1999 and modified on 7 November 2000 and 26 February 2001 be further modified to permit development of shop 2, 485 Cabramatta Road West, at Cabramatta West and units 3 and 4 immediately above Shop 2 in accordance with the Site Plan drawing job: 9909 No. 000 issue D of the amendment dated 26 February 2001, and the drawings of Moska Pserras Partnership Pty Limited Nos. 02034/Ap/02 issue B and 02034/Ap/01 issue C dated 14 October 2002 as amended and initialled by the parties’ solicitors on 17 April 2003 in exhibit E of this appeal, all subject to the following additional conditions 23 to 28 included in annexure A1 hereto.

2. The exhibits be returned to the parties except exhibits B, C, D, E, F, 2 and 3.

The Court notes the undertaking of the applicant’s solicitor to prepare consolidated conditions incorporating the original conditions set out in annexure A to the orders of 4 March 1999, the condition No. 22 in the amendment dated 26 February 2001 and Annexure A1 hereto.

_______________________

Commissioner of the Court

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