Maracaz Pty Limited v Fairfield City Council

[2006] NSWLEC 789

Land and Environment Court

of New South Wales

CITATION:

Maracaz Pty Limited v Fairfield City Council [2006] NSWLEC 789

PARTIES:

APPLICANT
Maracaz Pty Limited

RESPONDENT
Fairfield City Council

FILE NUMBER(S):

10777 and 10778 of 2006

CORAM:

Bly C

KEY ISSUES:

Development Application - Development Consent :- Reconfiguration and extension of existing restaurant, and increased hours of operation, increased seating capacity.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

5/12/2006 and 6/12/2006

EX TEMPORE JUDGMENT DATE:

12/06/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr T. Atkin, barrister
instructed by Mr A. Dicembre
of McGrath, Dicembre & Company

RESPONDENT
Mr A. J. J. Thompson, barrister
instructed by Mr J Richie
of Ritchie & Castellan

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Commissioner Bly

6 December 2006

10777 of 2006 Maracaz Pty Limited v Fairfield
10778 of 2006 City Council

JUDGMENT

This decision was given extemporaneously. It has been revised
and edited prior to publication.

1 These two appeals relate to an existing 21 unit commercial/industrial development at 1345 The Horsley Drive, Wetherill Park and involve the following applications:

• Development Application No. 877/06 which is for the reconfiguration and extension of the existing restaurant (refreshment room) that occupies parts of Units 19 and 20 and increasing its hours of operation. The extension mainly comprises the provision of a bar and toilet facilities within Unit 19. The hours of operation are proposed to be Monday to Friday, 6pm to 12 midnight, and Saturday and Sunday, 12 noon to 12 midnight. Seating capacity is to be changed to allow a maximum of 84 patrons up to 6pm and 260 patrons from 6pm until 12 midnight. The restaurant’s current conditions require it to close at 9pm and limit it to a maximum of 84 patrons.
• Development consent No. 1015/99 is for the use of the front portion of the ground floor of unit 20 as a restaurant (refreshment room). The restaurant’s conditions presently require it to close at 9pm and it is now sought to have condition 18 of the consent amended to allow hours of operation between 6am and 12 midnight.

2 The 2.23 ha site on which the subject units 19 and 20 are situated is located on the northern side of The Horsley Drive. The existing development on the site has parking for 222 cars in a central car park area and a multi-deck car park at the rear with access off The Horsley Drive. The units are variously occupied by commercial and light industrial land uses.

3 The site is zoned 4(c) special industrial under Fairfield Local Environmental Plan 1994 in which zone refreshment rooms are permissible with development consent. Clause 8(2) of the LEP in effect requires that consent must not be granted unless the consent authority has formed the opinion that the carrying out of the development would be consistent with one or more of the objectives of the zone.

4 Clause 1 in zone 4(c) of the LEP contains the objectives of the zone and it was agreed that the only objective relevant to this application which comprises a business activity is objective ‘A’ which is

to encourage the establishment of a broad range of light industrial and warehouse activities and a limited range of business and retail activities compatible with nearby residential areas to general employment and contribute to the economic development of the City of Fairfield.

5 The appeal began with an inspection of the two premises and the associated carparking arrangements.

6 Expert town planning evidence was provided on behalf of the applicant by Mr G Rhodes and on behalf of the respondent by Mr P Hurley. In addition to their individual reports they also prepared a joint report.

7 The original statements of issues identify issues involving insufficiency of information, the intensification of the existing uses, sufficiency of carparking and compliance with objectives ‘A’ and ‘C’ of the 4(c) zone.

8 The issues associated with insufficiency of information and objective ‘C’ of the 4(c) zone were not pressed. The carparking issue was also not pressed and taking into account the evidence of the experts, which I agree that the carparking provision and its location, subject to the agreed conditions in relation to lighting and security, is appropriate.

9 The remaining issue involves objective ‘A’ of the 4(c) zone, particularly regarding the intensification of the nature and scale of the restaurants. In relation to both restaurants the experts disagreed as to whether the extension of their hours of operation would be consistent with objective ‘A’. They also disagreed as to whether the enlargement of the upstairs restaurant would be consistent with this objective.

10 Mr Hurley was of the opinion that the scale, intensity and hours of operation, especially of the larger upstairs restaurant, would not be within the threshold range of those business activities anticipated by the objective. In his report he explained that taking into account the reference in the objective to a limited range of business activities, the size and scale of a business, and its hours of operation are relevant considerations. In this case the size and scale of the proposals would not be compatible with nearby residential areas as required by the objective which he said should be narrowly interpreted. More particularly the size and scale of the restaurants would not be within the threshold range of those business activities anticipated by the objective.

11 Mr Rhodes was of the opinion that the restaurants represent a limited range of facilities relative to the size of the Wetherill Park industrial area. In this regard he noted that the Wetherill Park and the Smithfield industrial areas together contain some 3500 businesses. Within the Wetherill Park industrial area the developed 500 ha of the 550 ha available employs some 20,000 persons. This area is served with only one other a la carte restaurant and a hotel bistro. On this basis he concluded that the proposed restaurants as extended would remain within a limited range as required by the objective.

12 In this context my attention was drawn to the Central West Sydney Employment Zone Scoping Study of June 1996 which includes the subject land in its ambit. At s 6.4.3 the study deals with possible new activities which can complement and strengthen the existing capabilities of land within the employment zone and recognises the benefits to be realised if the pattern of land use were to be made somewhat more diverse. In particular it suggests that such uses as convenience shops, personal services, banking, restaurants, recreation, exercise and entertainment and health services could be introduced in view of the very large workforce within the employment zone.

13 On behalf of the respondent it was submitted that the large upstairs restaurant should not be considered as such but instead as a facility intended for larger gatherings. In this regard I was referred to the restaurant’s internet web page which plainly advertises it to the community at large as a function centre for weddings, birthdays and the like. It should thus not be considered to be a restaurant designed to serve employees within the area.

14 On behalf of the applicant it was submitted that the Court should assume that conditions of the consent would be complied with. Whilst the upstairs restaurant will be relatively large this does not make it unacceptable. Numbers do not determine appropriateness. It will be able to accommodate larger functions and this is appropriate in this locality where there is a demand for larger business functions which are to be distinguished from those functions that would fall within the definition of public entertainment. The size and location of the restaurants are appropriate taking into account the extent of the surrounding industrial zones and the lack of nearby restaurants.

15 In my opinion objective ‘A’ of the 4(c) zone is essentially fulfilled by the activities permissible in the zone. In other words the reference in the objective to a broad range of light industrial and warehouse activities and a limited range of business and retail activities is met by the range of land uses permissible with development consent. More particularly the reference in the objective to a limited range of business activities clearly includes a restaurant and in this regard I do not accept that the intention of the objective is to limit the scale of any such business. In this regard, I note that there are no planning controls to this effect.

16 The objective nevertheless can be interpreted in such a way that any land use under consideration should be compatible with nearby residential areas and should generate employment and contribute to the economic development of the city. In this regard, I heard no persuasive evidence to suggest that there would be any incompatibility with any nearby residential areas, recognising that there are no such areas nearby. He Plainly the restaurants will generate employment and in turn should contribute to the economic development of the city. In these circumstances I do not accept that the proposals would be inconsistent with this objective and hence cl 8(2) of the LEP is met.

17 I accept the evidence of Mr Rhodes that there is likely to be a demand for the enlarged restaurant with extended hours and whilst this can be taken into account, I do not accept that it should attract significant weight. Instead the applications need to be dealt with on their merits and in this regard the only other aspect of the issue in dispute involves the size and the hours of the restaurants.

18 Plainly there will be no amenity impacts with the restaurants being located in a commercial/industrial area and recognising the likelihood that the most intense use of the restaurants will be in the evenings when the commercial/industrial uses are largely inactive.

19 Finally here, the intensification of an existing land use cannot by itself be a reason for the refusal of the application unless there are adverse consequences arising from the intensification or if the use becomes fundamentally different and may as a consequence attract different considerations or even become prohibited. In my opinion, having considered all of the evidence, none of these matters arise here.

20 The owners of the upstairs restaurant on the basis of their internet website may not in the past have strictly complied with their consent, however this is not a matter that is determinative of this application.

21 In the circumstances, I have decided to uphold the appeals and amend the consent in relation to the downstairs restaurant and grant conditional development consent in relation to the upstairs restaurant.

22 In relation to the conditions for the upstairs restaurant, two conditions were opposed by the applicant. Condition 11 prohibits live music or entertainment including the use of disc jockeys. I agree that this condition should be retained because to allow these activities would fundamentally change the character of the use and would require different considerations. In The condition is also consistent with condition 10 that prevents the use of the premises for certain activities including a discotheque.

23 Condition 16 requires that units 19 and 20 be consolidated. I have not been persuaded that there would be any benefit resulting from this condition especially given the different uses that exist within unit 19. The condition is therefore deleted.

24 The orders of the Court are therefore:

1) The appeals are upheld

2) Condition 18 of development consent No. 1015/99 is deleted and replaced with the following:

18. The approved hours of operation for use are 6 a.m. to 12 midnight.

3) Development application No. 877/06, which is for the reconfiguration and extension of the existing restaurant (refreshment room) that occupies parts of Units 19 and 20 and increasing its hours of operation is determined by the granting of development consent subject to the conditions in Annexure “A” hereto.

4) Exhibit A is retained.

___________________

T A Bly
Commissioner of the Court
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