Liapis v Camden Council - [2010] NSWLEC 1230

Land and Environment Court

of New South Wales

CITATION: Liapis v Camden Council [2010] NSWLEC 1230

PARTIES:
APPLICANT
William Liapis
RESPONDENT
Camden Council

FILE NUMBER(S): 10396 of 2010

CORAM: Fakes C

KEY ISSUES: DEVELOPMENT CONSENT :- liquor shop, conditon of consent requiring a trial period

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Liquor Act 2007 No 90
Camden Local Environmental Plan No 47

CASES CITED: Zhang v Canterbury City Council [2001] NSWCA 167
Reserve Hotels Pty Limited v Council of the City of Sydney [2010] NSWLEC 1135
Puruse Pty Ltd and Joao Pty Ltd trading as Coopers Hotel, Newtown v Sydney City Council [2009] NSWLEC 1095
Fiorenza v Waverley Council [2009] NSWLEC 1269

DATES OF HEARING: 13/08/2010

DATE OF JUDGMENT:
20 August 2010

LEGAL REPRESENTATIVES:
APPLICANT
Mr P Clay, Barrister
INSTRUCTED BY;
Back Schwartz Vaughan - Solicitors
RESPONDENT
Mr C Shaw, Solicitor
Shaw Reynolds Bowen and Gerathy

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

20 August 2010

10396 of 2010 Liapis v Camden Council
JUDGMENT

1 COMMISSIONER: This is an appeal made under s 97(1) of the Environmental Planning and Assessment Act 1979 (the Act) against the decision by Camden Council (the council) to impose a condition of consent requiring a 12 month trial period on a development consent granted for the fit-out and use of Units 2 and 3, 9 Iando Way Currans Hill as a liquor shop.

2 Condition 1.0 (16) provides:

12 months trial period

3 The applicant appeals against the imposition of any trial period on the basis that it is unreasonable and unnecessary.

4 The council contends that the imposition of this condition will allow Council and the community to further evaluate the impacts of the proposed liquor shop while operating and then determine whether to grant permanent approval to the development.

The site and locality

5 The site is units 2 and 3, 9 Iando Way Currans Hill, Lot 18 DP880682. It is part of an approved commercial development in a designated ‘Neighbourhood Centre’. Iando Way connects Currans Hill Drive and Tramway Drive. At the south-eastern end of the commercial building is a new car park. To the north - east of the site, across the road, is an established general store, currently the only retail outlet in the neighbourhood centre.

6 Currans Hill is a suburb established in the 1980s. The site is surrounded by a number of land uses but dominated by low-density residential development. In close proximity to the site are a primary school, childcare centre, community centre, and areas of public open space.

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: [2010] NSWLEC 1230
Decision Date: 20 August 2010

CaseChat Overview and Summary

The Land and Environment Court of New South Wales was called upon to review an appeal by William Liapis against Camden Council's decision to impose a 12-month trial period on the development consent for a liquor shop at Units 2 and 3, 9 Iando Way, Currans Hill. The council's condition required a trial period for the liquor shop to assess its impact on the local community, a decision Liapis contested as unreasonable and unnecessary. The court had to determine the validity of imposing such a trial period, considering the relevant planning laws, the Camden Local Environmental Plan, and the Camden Development Control Plan.

The court considered various factors, including the absence of specific controls in the Camden Local Environmental Plan or the Camden Development Control Plan that would justify a trial period. The applicant argued that the condition was unreasonable and unnecessary, especially as it would require a significant financial investment for the fit-out of the liquor shop, with a lease term of at least five years. The council, on the other hand, emphasized the concerns raised by local residents and the police about potential negative impacts of the liquor shop on the community.

After reviewing the evidence, including submissions from the police, the council's planner, and the applicant's representative, the court found that the imposition of the trial period was unreasonable and unnecessary. The court noted that the condition was drafted in a way that made it counterproductive to its intent, as it started from the date of the determination rather than from the point at which the business would be operational. The court also highlighted the lack of evidence linking the potential impacts to the existence of the proposed liquor store and the absence of a similar trial period imposed on other premises in the area.

The court concluded that while the concerns of the residents should be taken seriously, they did not justify the imposition of a trial period. The court granted the appeal and deleted the condition requiring a trial period, instead imposing alternative conditions to address community concerns. These included limiting the opening hours of the liquor store, installing a locked gate and surveillance camera at the access way between the supermarket and the liquor store, and requiring the preparation of a Site Management Security Plan. The court's decision aimed to balance the need for community safety and amenity with the rights of the applicant to develop the property as intended.

Orders