Hallak v Waverley Council

Case [2010] NSWLEC 1138

Land and Environment Court


of New South Wales


CITATION: Hallak v Waverley Council [2010] NSWLEC 1138
PARTIES:

APPLICANT
Bassam Hallak

RESPONDENT
Waverley Council
FILE NUMBER(S): 10122 of 2010
CORAM: Tuor C
KEY ISSUES: CONSENT ORDERS - DEVELOPMENT APPLICATION :- Condition of consent for hours of operation
LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Waverley Development Control Plan 2006
DATES OF HEARING: 30 April 2010
EX TEMPORE JUDGMENT DATE: 30 April 2010
LEGAL REPRESENTATIVES:

APPLICANT
Mr J Doyle, barrister

RESPONDENT
Ms N Jones, solicitor
of Wilshire Webb Staunton Beattie

JUDGMENT:

      THE LAND AND
      ENVIRONMENT COURT
      OF NEW SOUTH WALES

      Tuor C

      30 April 2010

      10122 of 2010 Bassam Hallak v Waverley Council
      This decision was given extemporaneously. It has been revised and edited prior to publication.
      JUDGMENT

1 This is an appeal against condition 2 imposed on development consent 350/2009 (development consent) granted by Waverley Council (the council) on 24 November 2009. The development consent approved a change of use to a takeaway kebab food shop at 3/164-170 Campbell Parade, Bondi Beach (the site).

2 The issues between the parties have been resolved and they are seeking consent orders from the Court. There were no objections to the original development application.

3 Condition 2 of the development consent permitted hours of operation from 6.00am to midnight, Monday to Saturday, and 9.00am to 12 midnight Sunday. The applicant sought to amend the condition to permit hours of operation from 6.00am to 2.00am Monday to Saturday and 9.00am to 1.00am Sunday.

4 The hours sought comply with clause 2.4.4 - Bondi Beach Trading Hours in Waverley Development Control Plan 2006 (DCP). The hours were recommended in a report to council on 12 November 2009. However, the report also noted the premises’ history of complaints and infringements for failure to comply with trading hours and therefore recommended a one-year trial period of the operating hours beyond 1.00am. Condition 2 of the development consent imposed lesser trading hours than those recommended and without a trial period.

5 The council has now agreed to the hours previously recommended in the planning report, which are consistent with the DCP, on the basis that the applicant has also accepted a one-year trial period.

6 The issues between the parties are therefore resolved and I accept that the consent orders sought by the parties may be granted.


7 By consent, the Court orders:

          1. The appeal is upheld.
          2. Development Application No. 350/2009 for change of use to a takeaway kebab food shop at 3/164-170 Campbell Parade, Bondi Beach is approved subject to the conditions in Annexure A.
          3. The exhibits, except Exhibits 1, 3, A and B, may be returned.
          The court notes the intention of the parties that there be no order as to costs.

___________________

      Annelise Tuor
      Commissioner of the Court
      ljr
Details
AGLC
Hallak v Waverley Council [2010] NSWLEC 1138
Case
[2010] NSWLEC 1138
Decision Date

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Bassam Hallak appealed a decision by the Waverley Council regarding the hours of operation for his approved development application for a takeaway kebab food shop at 3/164-170 Campbell Parade, Bondi Beach. The council had granted development consent for the change of use on 24 November 2009, but imposed specific hours of operation in condition 2 of the development consent. The applicant sought to extend these hours to align with the Waverley Development Control Plan 2006 and a planning report that recommended a trial period for the extended hours. The council had initially resisted this change but subsequently agreed to the applicant's proposal on the condition of a one-year trial period.

The primary legal issue before the court was whether the hours of operation set by the council in the development consent were appropriate, given the planning report's recommendation and the existing planning controls. The applicant argued that the approved hours were less restrictive than those recommended and did not include a trial period as suggested. The court had to determine if the proposed extension of hours and the trial period were consistent with the Environmental Planning and Assessment Act 1979 and the Waverley Development Control Plan 2006.

The court, presided over by Commissioner Tuor, found that the proposed changes to the hours of operation were in line with the Waverley Development Control Plan 2006 and had been recommended in a planning report to the council. The court also noted that the applicant agreed to a one-year trial period, which was a condition suggested in the report. The council's agreement to the extended hours and the trial period meant that the parties had resolved their differences. Consequently, the court granted the consent orders sought by the parties, approving the development application subject to the amended conditions and a one-year trial period for the extended operating hours. The court also noted that there would be no order as to costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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