Fiorenza v Waverley Council - [2009] NSWLEC 1269

Land and Environment Court

of New South Wales

CITATION: Fiorenza v Waverley Council [2009] NSWLEC 1269

PARTIES:
APPLICANT
Cristina and Francesco Fiorenza
RESPONDENT
Waverley Council

FILE NUMBER(S): 10364 of 2009

CORAM: Tuor C

KEY ISSUES: :- Conditions of Approval, modify development consent
Whether condition requiring trial period reasonable given likely impact on residential amenity.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Waverley Local Environmental Plan 1996

DATES OF HEARING: 5 August 2009

EX TEMPORE JUDGMENT DATE: 5 August 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr D Thomas, solicitor
of Wellings Lawyers
RESPONDENT
Ms C Morton, solicitor
of Sparke Helmore

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

5 August 2009

10364 of 2009 Cristina and Francesco Fiorenza v Waverley Council
JUDGMENT

1 This is an appeal against conditions of approval imposed on an application under s 96 of the Environmental Planning and Assessment Act 1979 (the Act) to modify development consent DA565/2008 granted by Waverley Council (the council) on 24 March 2009 for premises at 2 Brighton Boulevarde, Bondi Beach (the site).

2 The only condition that remains in dispute between the parties is condition 4, which proposes a one year trial period. Condition 4 states:

The approved trading hours for the premises shall be 9.00 am to 7.00 pm seven days per week. Irrespective of the above, the premises may trade from 7.00 am to 7.00 pm seven days per week for a one (1) year trial period. The trial period starts from the date of the development consent and ceases one (1) year from that date. A further application may be lodged before the expiration of the trail period to extend or make permanent the extended hours. Council’s consideration of any further application will take into account the impacts of the extended hours on the amenity of the surrounding residential area and compliance with the conditions of consent.

3 The applicant seeks to amend condition 4 to allow for continuous and permanent trading from 7 am to 7 pm, 7 days a week, without a trail period.

4 The site, the history of application and the planning controls are in the Statement of Facts and Contentions filed by the applicant and the Statement of Facts and Contentions in reply filed by the council.

5 The site is located on the corner of Brighton Boulevarde and Wairoa Avenue. It contains a part 1 and part 2 storey dwelling with a naturopathic clinic occupying the front corner. DA565/2008 sought to change the naturopathic use to a café/deli.

6 The site is zoned Residential 2(a) under Waverley Local Environmental Plan 1996. The proposed use is not permissible within the zone but the site enjoys existing use rights.

7 The hearing was conducted on site. The Court heard resident evidence from the adjoining neighbour Mr D. Basha. His principle concern was that the proposed deli/café use was incompatible with the residential area and would result in unacceptable amenity impacts from people loitering outside, noise, litter and smoking. He stated…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] NSWLEC 1269
Decision Date: 5 August 2009

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Cristina and Francesco Fiorenza appealed against conditions imposed on a development consent granted by Waverley Council. The development consent, granted under section 96 of the Environmental Planning and Assessment Act 1979, was for the premises at 2 Brighton Boulevarde, Bondi Beach, which sought to change the use from a naturopathic clinic to a café/deli. The primary issue in dispute was condition 4, which imposed a one-year trial period for trading hours from 7 am to 7 pm, seven days a week, before the applicant could trade continuously and permanently during these hours.

The court needed to decide whether the one-year trial period was reasonable given the likely impact on residential amenity. The Fiorenzas argued that the trial period was unnecessary as their proposed operation was small, low intensity, and unlikely to impact on residential amenity. They submitted that the proposal complied with the Waverley Local Environmental Plan 1996 and that the trial period was not supported by evidence of adverse impacts. The council, on the other hand, argued that a trial period was appropriate to assess the impact of the proposal on residential amenity, particularly in light of concerns raised by residents about the operation of other cafes in the area.

The court found in favour of the Fiorenzas, accepting the opinion of the applicant's expert, Mr Gawne, who considered that the trial period was unnecessary. The court noted that the proposed hours of operation were within the general maximum hours specified in the Development Control Plan and that there was no evidence of likely unacceptable amenity impacts. The court also acknowledged that while the proposal represented an intensification of the current use, the small size and design of the premises, which did not provide outdoor seating or serve to the street, meant that the impact on residential amenity was minimal. The court therefore amended condition 4 to allow continuous trading between 7 am and 7 pm daily, without the trial period.

The court upheld the appeal and approved the modification of development consent, subject to the conditions outlined in Annexure A. The exhibits, except Exhibit 2, were ordered to be returned.

Orders